The Futility of Appeal

A recent Ohio Supreme Court case demonstrates the futility felt by many Defendants and their attorneys even when the higher court sustains the Defendant’s motion to suppress evidence that is fundamental to the prosecution of one accused of OVI in Ohio.

The case, O'Neill v. Mayberry, 2010 Ohio 1707, involved a defendant charged with (1) aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), a third degree felony; (2) failure to stop after an accident in violation of R.C. 4549.02(A) and (B), a third degree felony; (3) aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second degree felony; (4) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), a first degree misdemeanor; and (5) operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(f), a first degree misdemeanor. A conviction of the more serious charges had to be predicated on a successful prosecution of one of the charges under R.C. 4511.19.

The trial court denied O'Neill's motion to suppress the results of his blood alcohol tests performed after his arrest. Pursuant to a negotiated plea agreement, O'Neill entered pleas of no contest to Counts 1, 2, 3, and 5, Count 5 being the OVI charge. In exchange, the state dismissed Count 4, the per se violation, and O'Neill was sentenced on his no contest pleas. The Defendant appealed his convictions and the Supreme Court sustained his motion to suppress. resulting in the dismissal of the per se violation. It is important to note that the court in its opinion stated that “...O'Neill's convictions for aggravated vehicular homicide and aggravated vehicular assault depended upon a violation of R.C. 4511.19.”

Nonetheless, the state re-instituted prosecution of O’Neill on the original charges. O’Neill attempted to have these charges dismissed by filing a Writ of Prohibition with the Supreme Court claiming the lower court no longer had jurisdiction to try the charges.

The Ohio Supreme Court disagreed saying, “[i]n the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal,” State ex rel. Shimko v. McMonagle (2001), 92 Ohio St.3d 426, 428-429...Upon remand from an appellate court, the lower court is required to proceed from the point at which the error occurred...Accordingly, when we remanded the case to the trial court following our determination that the trial court should have granted the motion to suppress, respondent was required to proceed from the point at which the error occurred, that is, after he denied the motion to suppress but before the plea agreement in which the state dismissed the general DUI charge.”

So, while the per se violation was dismissed, the state was permitted to go forward on the OVI charge, thus predicating a conviction of the more serious offenses based upon a conviction of that OVI case.