The decision corrects what was an absurd anomaly, for reasons amply given by the court, and by Judge Brown in his dissent at the court of appeals level. There is no sound reason why a municipality should be able to have a new trial, if the defendant rests his case without presenting any evidence, and then obtains a favorable verdict, but not if the defendant moves for directed verdict, also without presenting evidence, and obtains a favorable verdict.
Nevertheless, the decision does create an avenue for abuse by municipalities that defense attorneys should be aware of.
Footnote 53 of the decision states, in part, "The defendant argues that if a municipality’s failure to meet its burden of proof in the municipal court prohibits a municipality from seeking a new trial, the public policy of requiring diligent preparation by the municipality is promoted. If the City is not obliged to meet its burden of proof in the municipal court before the municipality proceeds to circuit court, even the most unmeritorious cases will not be filtered out by the municipal court, asserts the defendant.
"The City answers this public policy argument by asserting that it was prepared even though it failed to present the testimony of the officer who ordered the blood draw and that the public policy asserted by the defendant does not come into play in the present case or in most cases because a municipality cannot afford to waste its resources in this manner."
Suppose, however, that a defendant is prepared to proceed with a municipal trial, but the municipality is not, because a necessary witness is temporarily unavailable and the court refuses to grant a continuance (if the necessary witness is permanently unavailable, there is no problem, as the case will not be successful in any court at any time).
If the municipality says to the court that it is unable to proceed, dismissal will be granted to the defendant, and the municipality will have no right to a new trial, and no hope in an appeal on the record, unless the circuit court holds that denying the request for a continuance was an abuse of discretion, a high burden to meet.
However, if the municipality proceeds with the trial, even though the prosecutor knows he cannot meet his burden, and directed verdict is granted, as was fully expected, now the municipality can receive a new trial.
The City of Pewaukee denied this was a potential problem by arguing it was prepared for trial, even though it failed to present the testimony of the officer who ordered the blood draw. The city is correct on this point, for, even if the officer’s testimony was necessary to prove the operating a vehicle with a prohibited blood alcohol concentration charge, results from a blood test are not necessary to prove an operating while intoxicated charge.
The City also asserted that in this case and "in most cases," the defendant’s concerns do not come into play, "because a municipality cannot afford to waste its resources in this manner."
Presumably, the city is correct on this point, as well, "in most cases." Nevertheless, it would be unjust to permit a municipality to preserve its right to a "new trial," merely by commencing a "sham trial."
As a result, if a municipality is denied a continuance, proceeds with trial anyway, and a directed verdict results, a defendant may be able to use this footnote to argue that his particular trial does not fall into the category of "most cases," but was an abusive trial for which there should be no right to a new one.
Unfortunately for such a defendant, however, the indicia of a trial enumerated by the Ohio Supreme Court in First Bank of Marietta v. Mascrete, Inc., 684 N.E.2d 38 (Ohio 1997), and spoken of with approval by the court in the case at bar, will not be of any assistance, unless the municipality fails to present any evidence whatsoever.
Nevertheless, if a defendant can show that, absent the unavailable witness, it was patently impossible for the municipality to prove a given element of the charge, he may be able to prevail.
– David Ziemer
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David Ziemer can be reached by email.