Columbus OVI/DUI Attorney Blog
Four months after Brittany was arrested and charged with OVI, the government charged her with a second count of OVI. In November, Brittany was arrested for OVI. On the day of her arrest, she submitted a urine sample, and she was charged with OVI. Three weeks later, the urine sample was analyzed, and the result was provided to the police department. In March, four months after the arrest, the police department charged Brittany with a second count of OVI based on the result of the urine test. Isn’t that a violation of her right to a speedy trial?
That question was answered last week in State Of Ohio v. Brittany Wieland. This issue has been addressed by different Ohio courts of appeals but has never been directly addressed by the Ohio Supreme Court. The Ohio appellate courts have reached different conclusions because the issue is not simple. The situation involves two OVI charges and two types of speedy trial rights.
The two different OVI charges involved in this case are OVI ‘impaired’ and OVI ‘per se’. For the charge of OVI ‘impaired’, the government must prove the defendant’s ability to drive was impaired by alcohol. For the charge of OVI ‘per se’, the government must prove the concentration of alcohol in the defendant’s urine exceeded .109 (the equivalent of .08 in blood).
The two different types of speedy trial rights are Constitutional rights and statutory rights. The federal and state constitutions provide the right to a speedy trial, but the delay in this case is likely not a Constitutional violation. The statutory right to a speedy trial is found in Ohio Revised Code section 2945.71. According to that section, first degree misdemeanors like OVI must be brought to trial within 90 days after a person is arrested or served with a summons to appear in court.
When two charges arise from the same incident, when does the speedy trial clock start ticking? The Ohio Supreme Court created a general rule in State v. Adams: if an additional charge arises from the same facts as the original charge and the government knew of such facts at the time of the original charge, then the speedy trial clock for the additional charge starts running at the time of the arrest or summons for the original charge. The issue is whether the charges of OVI ‘impaired’ and OVI ‘per se’ arise from the same facts and whether the government knew those facts at the time of the original charge.
The Court in Wieland concluded that the additional charge of OVI ‘per se’ was based on new facts not available to the government at the time of the original OVI ‘impaired’ charge. The court reasoned that the lab reports with the urine test results constituted “new facts”. Therefore, the Court held the speedy trial clock on the additional charge of OVI ‘per se’ did not begin to run until the police served Brittany with the additional charge in March.
The Court’s opinion in Wieland is troubling. Test results showing alcohol in the defendant’s body should not be considered “new facts”: the officer already charged her with OVI based on the officer’s conclusion she operated a vehicle with alcohol in her body. In addition, the police department had the urine test results three weeks after the original charge and sat on the “new” evidence for three months before filing the additional charge. As the Wieland opinion says this is not a speedy trial violation, the police could wait to file charges for up to two years (the statute of limitations for misdemeanors).
As different appellate districts have reached different conclusions on this issue, the Ohio Supreme Court will likely address the issue at some point. Hopefully, the Supreme Court will reach a different conclusion than the court in Wieland.