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Good news: failure to consent, escape

I've spent the last couple of weeks highlighting some bad court decisions, so I though I'd make up for it by turning the spotlight on some good news for a change.

First up is the 3rd District's decision in State v. HooverHoover had been charged with DUI under RC 4511.19(A)(2), which makes it a crime to drive drunk if you've been convicted of drunk driving within the past 20 years, and you refuse to take a breath test for the current charge when you're asked.  If you're charged with "normal" drunk driving, under 4511.19(A)(1) and you've got a prior conviction within the past six years, you're staring at a minimum mandatory sentence of ten days (depending on how much you've had to drink).  The minimum mandatory under 4511.19(A)(2) is twenty days in jail.

Hoover argued that this penalized him for refusing to consent to the test, and the appellate court agreed.  There's a nice, long analysis of the consent issue, and how it's implicated by the 4th Amendment.  The short version is that the a blood test is a search under the 4th Amendment, and there's no problem in imposing a civil penalty, like suspension of license, for refusing to consent to one.  But there is a problem with imposing a criminal penalty for a refusal.  The court didn't throw out the entire section, it simply held that the extra penalty provision could be severed, thus making it a 10-day mandatory minimum.

This probably won't have a profound effect on DUI law; the court notes that this is a case of first impression, mainly because most defendants are charged under the (A)(1) section.  But if you've got a client charged with an (A)(2) because he refused to consent to the test, this is the case to have.

Snaps also go out to the 8th District for its decision in State v. TalleyBack in 2000, Talley had pled out to a bunch of felonies, got sentenced to four years, did his time, and was placed on post-release controls.  He failed to report, so he was charged with escape.  He pled out to that, too, and was sentenced to two years.  He then filed a petition for post-conviction relief, arguing that he'd never been properly advised of post-release controls at the sentencing back in 2000.  There are a number of Supreme Court decisions which hold that if the defendant isn't properly advised of post-release controls, then the imposition of those controls is invalid.  And, of course, if post-release controls aren't validly imposed, then the defendant can't be charged with escape.  (I went into this in more detail back here.) 

The trial court had dismissed Talley's petition, holding that it was res judicata because he could have raised the same issue on appeal.  The 8th District panel didn't buy that, though, noting that the journal entries for the underlying sentencing weren't part of the court record for the escape case, and thus Talley couldn't have raised the issue in an appeal.  The appellate court reversed and granted Talley's petition.

With a not-so-gentle reminder to attorneys from Judge Cooney, in her concurrence:

Talley's trial counsel should have investigated the appropriateness of Talley's guilty plea in 2005 by reviewing the sentencing entry from 2000 which purported to impose postrelease control. The Ohio Supreme Court had decided both Woods v. Telb (2000), 89 Ohio St.3d 504, 2000 Ohio 171, 733 N.E.2d 1103, and State v. Jordan, 104 Ohio St.3d 21, 2004 Ohio 6085, 817 N.E.2d 864, by that time, and counsel should have been aware of the necessity of including postrelease control language in the sentencing entry.

And, as I've mentioned before, those cases hold that the trial court has to include the language about PRC in both the journal entry and orally at the sentencing hearing.  Failure to do either voids PRC.  So do your due diligence:  check out the JE, and get the transcript of the sentencing hearing.

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