State v. George, 2018 Ohio 3930

Background

Early-morning traffic stop (Nov. 6, 2016) after deputy observed erratic driving and statutory traffic violations; driver Tyiler J. George parked in the traffic lane when stopped.
Deputy Clinage smelled alcohol, observed bloodshot/glassy eyes, and George admitted consuming three alcoholic drinks; field sobriety tests were administered and George was arrested.
George was charged with OVI (R.C. 4511.19) and failure to keep right (R.C. 4511.26); jury convicted on both counts and the municipal court imposed sentence.
On appeal George raised a single assignment: trial counsel provided ineffective assistance by (a) failing to timely move to suppress the standardized field sobriety tests, (b) failing to move for acquittal, (c) failing to adequately cross-examine the deputy about test administration, and (d) failing to object to the deputy’s opinion testimony that George was under the influence.
The Ninth District applied Strickland’s two-prong test, reviewed the record (including body-cam video), and rejected each subclaim for ineffective assistance—finding no deficient performance or no prejudice.
A concurring/dissenting judge argued trial counsel was deficient for not suppressing or challenging the field tests or for not presenting an expert for breath results; the majority affirmed because those issues were not raised in the assignment of error or otherwise unsupported in the record.

Issues

Issue	Plaintiff's Argument (George)	Defendant's Argument (State)	Held
1. Failure to object to officer’s opinion that defendant was impaired	Officer’s opinion was improper because SFSTs indicate likelihood of BAC > .08, not impairment; counsel should have objected	No authority shows officer may not testify to impairment; counsel’s failure to object was not shown deficient nor prejudicial	Court: No ineffective assistance — no legal basis shown that opinion testimony was improper and no prejudice shown
2. Insufficient cross-examination of officer about SFST administration	Counsel should have impeached officer for failing to give proper instructions and not following NHTSA standards	Cross-examination scope is strategic; trial counsel did question administration and the record shows the officer said defendant followed instructions	Court: No deficient performance — cross-examination was within reasonable trial strategy
3. Failure to move for acquittal (Crim.R. 29)	Counsel should have moved to strike SFST testimony and then for acquittal; motion might have been granted if SFSTs were excluded	Counsel expressly declined Rule 29 as trial strategy; sufficiency existed so failure to move did not prejudice defendant	Court: No ineffective assistance — decision was strategic and no prejudice because evidence supported conviction
4. Failure to timely file motion to suppress SFST evidence	Timely suppression motion would have excluded SFSTs for lack of proof of substantial compliance with standards; exclusion would have gutted probable cause	Failure to file is not per se ineffective; no record support (NHTSA manual and other proofs) that a suppression motion would have succeeded	Court: No ineffective assistance — defendant failed to show a reasonable probability a suppression motion would have been granted

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)
Michel v. Louisiana, 350 U.S. 91 (1955) (presumption that counsel’s conduct may be sound trial strategy)
State v. Bradley, 42 Ohio St.3d 136 (1989) (defendant must show reasonable probability result would differ absent counsel errors)
Kimmelman v. Morrison, 477 U.S. 365 (1986) (failure to file suppression motion not per se ineffective assistance)
State v. Madrigal, 87 Ohio St.3d 378 (1999) (same principle explained for Ohio law)
State v. Brown, 115 Ohio St.3d 55 (2007) (defendant must prove there was a basis to suppress to show counsel ineffective for not filing motion)
State v. Saxon, 109 Ohio St.3d 176 (2006) (appellate courts must decide appeals on assigned errors)