2014 Ohio 4287
Ohio Ct. App.2014Background
- Love was convicted by a trial court for aggravated vehicular homicide arising from a fatal crash in Ashtabula County, Ohio, and sentenced to six years with post-release control and other penalties.
- The April 3, 2011 crash occurred when Totora’s vehicle, stopped on U.S. Route 20, was struck by Love’s vehicle, killing Totora at the scene.
- Love faced a three-count indictment: aggravated vehicular homicide and two OVI counts; she initially pled not guilty.
- Love moved to suppress the breath-test results; the trial court denied suppression after briefing and hearings.
- The court merged Counts 2 and 3 with Count 1 for sentencing and imposed a six-year term, with related penalties.
- Love timely appealed, challenging the suppression ruling and related trial-counsel effectiveness issues; the court affirmed the judgment, with a dissent on one of the issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suppression of breath-test evidence proper? | Love argues the breath test should be suppressed. | State contends no suppression error. | No error; suppression denied; Jones controls dry gas timing. |
| Authorization of the Intoxilyzer 8000 operator | Love argues Trooper Emery lacked proper authorization. | State relies on Walsky precedent equating permit and card. | Correct; no suppression issue; Walsky controls. |
| General reliability challenge to the device | Love sought a general reliability challenge to the breathalyzer. | State argues device reliability need not be proven generally when approved. | Proper to prohibit general challenge; Bergman controls. |
| Effectiveness of trial counsel | Love claims counsel failed to preserve/argue issues effectively. | State argues decisions on trial strategy are presumptively reasonable. | No reversible ineffectiveness; strategic decisions upheld; witnesses uncalled without right pleading. |
Key Cases Cited
- State v. Bergman, 2013-Ohio-5811 (11th Dist. Portage (2013)) (no need to prove general reliability when device approved)
- State v. Jones, 2013-Ohio-4114 (11th Dist. Portage (2013)) (Subject Test refers to whole testing procedure; not between samples)
- State v. Walsky, 2013-Ohio-4115 (11th Dist. Portage (2013)) (operator-certification nominal difference between permit and access card)
- State v. Nicholson, 2013-Ohio-708 (1st Dist. Hamilton (2013)) (dry gas controls timing interpretation supporting Jones)
- State v. Kormos, 2012-Ohio-3128 (12th Dist. Clermont (2012)) (dry gas control timing between samples interpretation)
- State v. Dugan, 2013-Ohio-447 (12th Dist. Butler (2013)) (comparable authority on device reliability)
- State v. Bradley, 1989 (Ohio) (standards for ineffective-assistance review)