Ohio DUI Law: State v. Thompson (prior offenses)

State v. Thompson, 2009-Ohio 314 (slip opinion)

The Ohio Supreme Court held that: “… neither R.C. 2946.75 nor State v. Brooke, 113 Ohio St.3d 199,2007-Ohio-1533, 863 N.E.2d 1024, requires the state to prove that Thompson had been represented or that he had validly waived representation.  According to Brooke, the state does not have the burden of proving that Thompson had been represented or that he had validly waived representation unless Thompson makes a prima facie showing that he had been “uncounseled” in his prior convictions — that is, that he had not been represented and that he had not validly waived representation.”

This effectively makes it the responsibility of the defense attorney to raise this as an affirmative defense with all of the attendant ethical requirements of “good faith” assertion of the defense.  At a minimum, the attorney should make a discovery request that goes to the issue, a motion to preserve the issue and make contact with the previous court(s) to ascertain what was plead to and whether or not the client properly waived their rights.  In my opinion, this matter should be raised prior to trial in a “Brookes Motion.”