2016 Ohio 8441
Ohio Ct. App.2016Background
- On July 3, 2015, Cody Foos crashed his car into a concrete barrier; three occupants exited the vehicle and police responded.
- Officer Hayes observed heavy front-end damage, skid marks consistent with a single-vehicle crash, and testified Foos smelled strongly of alcohol, had slurred speech, was lethargic/zoning out, and refused field sobriety and chemical testing.
- Two police officers testified about Foos’ intoxication and refusal; video from the cruiser had no audio and the department lacked a working breathalyzer that night.
- Foos testified he drank one beer earlier, drove normally, and lost control after hitting a road defect; a passenger corroborated the pothole account but admitted he was drinking and likely intoxicated.
- Jury found Foos guilty of OVI; trial court convicted him of failure to control. Foos appealed three issues: manifest weight of the evidence, jury instruction regarding chemical-test refusal, and denial of his administrative license suspension (ALS) appeal.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Foos) | Held |
|---|---|---|---|
| Whether OVI conviction was against the manifest weight of the evidence | Evidence (officers’ observations: odor, slurred speech, lethargy, refusal) supports impairment | Crash caused by road defect; only one beer consumed; witnesses said he was not intoxicated | Court affirmed: weight of evidence supports OVI conviction; jury credited officers’ testimony |
| Whether jury instruction allowing consideration of refusal to submit to chemical test was erroneous | Instruction appropriate under Maumee; State relied on refusal evidence | Trial counsel had argued against the instruction and later failed to renew objection; claims error | Court held Foos forfeited the claim by not renewing objection; overruled assignment (no plain-error argument raised) |
| Whether trial court erred in denying Foos’ ALS appeal | ALS denial procedurally proper per trial court | Foos argued improper BMV Form 2255 and officer noncompliance with testing formalities | Court dismissed this challenge for lack of jurisdiction because Foos’ appeal from the ALS denial was untimely; November 2, 2015 reconsideration order vacated |
Key Cases Cited
- Maumee v. Anistik, 69 Ohio St.3d 339 (1994) (approves jury instruction permitting consideration of chemical-test refusal)
- Wolons v. State, 44 Ohio St.3d 64 (1989) (party need not formally object where record shows court was fully apprised of correct law)
- State v. Williams, 76 Ohio St.3d 290 (1996) (order denying ALS appeal is final and appealable)
- Toledo v. Starks, 25 Ohio App.2d 162 (6th Dist. 1971) (definition of "under the influence" used in Ohio case law)