State v. Forquer , 2017 Ohio 7237 ( 2017 )

[Cite as State v. Forquer, 2017-Ohio-7237.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
ANDREW FORQUER : Case No. 16 CAC 09 0038
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal
Court, Case No. 16 TRC 00465
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 16, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID C. MOSER TOM A. WORKMAN
70 North Union Street P. O. Box 687
Delaware, OH 43015 Delaware, OH 43015
Delaware County, Case No. 16 CAC 09 0038 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Andrew Forquer appeals the June 23, 2016 judgment
entry of the Municipal Court of Delaware County Ohio denying his motion to suppress.
Plaintiff-Appellee is the State of Ohio.
{¶ 2} On January 5, 2016, Genoa Township Police Officer Craig Jones was on
routine road patrol. At approximately 10:49 p.m., Jones did a random license plate check
on a car operated by Forquer and traveling ahead of him. He subsequently discovered
the annual registration on the vehicle had expired October 5, 2015. Based on this
information, Jones activated his overhead lights and initiated a traffic stop.
{¶ 3} Jones approached Forquer’s vehicle. The window was rolled up, and Jones
had to tap on the window before Forquer rolled it down. When he did, Jones detected an
odor of alcohol coming from Forquer, who was alone in the car. Jones noted Forquer’s
eyes were glassy and bloodshot. Asked if he had consumed any alcohol, Forquer
admitted to consuming two beers at 9:45 p.m.
{¶ 4} Jones returned to his cruiser to gather additional information, then
approached Forquer’s vehicle a second time. He asked Forquer to activate his hazard
lights. Forquer passed over the hazard light button several times before pressing the
correct button and activating the lights.
{¶ 5} Based on his observations, Jones asked Forquer to exit his vehicle for field
sobriety testing. Forquer was subsequently charged with operating a vehicle under the
influence of alcohol, operating a vehicle with a prohibited concentration of breath alcohol
content, and failing to display valid registration tags.
Delaware County, Case No. 16 CAC 09 0038 3
{¶ 6} In February, 2016, Forquer filed a motion to suppress. Forquer argued Officer
Jones lacked reasonable suspicion for the stop, and further, lacked reasonable suspicion
based on articulable facts to justify administration of field sobriety tests. On May 25, 2016,
a hearing was held on the matter. On June 30, 2016, the trial court issued its judgment
entry denying Forquer’s motion to suppress. On August 15, 2016, Forquer pled guilty to
operating a vehicle under the influence of alcohol, and failing to display valid registration
tags. The remaining charge was dismissed.
{¶ 7} Forquer now appeals, presenting one assignment of error:
{¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
WHEN IT FAILED TO GRANT APPELLANT’S MOTION TO SUPPRESS AFTER THE
STATE FAILED TO DEMONSTRATE THAT IT HAD REASONABLE SUSPICION IN
WHICH TO CONDUCT FIELD SOBRIETY TESTING.
{¶ 9} Forquer argues the trial court erred when it found Officer Jones possessed
lawful basis to administer field sobriety tests. We disagree.
Standard of Review
{¶ 10} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issue raised in the motion to suppress. When
reviewing this third type of claim, an appellate court must independently determine,
without deference to the trial court's conclusion, whether the facts meet the appropriate
legal standard in the given case. See State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583Delaware County, Case No. 16 CAC 09 0038 4
(1982); State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (1993); State v. Curry, 95
Ohio App.3d 93, 96, 641 N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 627,
620 N.E.2d 906 (1993); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726 (4th
Dist. 1993). The United States Supreme Court has held that as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de novo
on appeal. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134
L.Ed.2d 911 (1996).
{¶ 11} “Requiring a driver to submit to a field sobriety test constitutes a seizure
within the meaning of the Fourth Amendment. Courts have generally held that the
intrusion on the driver's liberty resulting from a field sobriety test is minor, and the officer
therefore need only have reasonable suspicion that the driver is under the influence of
alcohol in order to conduct a field sobriety test.” State v. Bright, 5th Dist. Guernsey
No.2009-CA-28, 2010-Ohio-1111, ¶ 17, citing State v. Knox, 2nd Dist. Greene No.2005-
CA-74, 2006-Ohio-3039.
Forquer’s Argument
{¶ 12} Forquer argues because there was no evidence of impaired driving, there
were insufficient articulable facts to justify the administration of the field sobriety tests. He
relies on this court’s decision in State v. Keserich, 5th Dist. Ashland No. 14-COA-74,
2006-Ohio-3039.
(¶ 13} This case, however, is distinguishable from Keserich. In Kerserich, appellant
was pulled over for an equipment violation. Upon contact with appellant, the arresting
officer observed appellant’s eyes were bloodshot and glassy, but did not detect an odor
of alcohol. There were 4 or 5 other passengers in the vehicle, all of whom were smoking.
Delaware County, Case No. 16 CAC 09 0038 5
Appellant admitted he had consumed two alcoholic drinks. Based on this admission and
the condition of appellant’s eyes, the arresting officer asked appellant to submit to field
sobriety tests. The arresting officer detected an odor of alcohol only after appellant exited
his vehicle. Kerserich ¶ 9. We concluded these facts were not sufficient to support a
reasonable suspicion of intoxication. Kerserich ¶ 19.
{¶ 14} In this matter, however, Forquer was alone in his vehicle. At 10:49 p.m.,
Officer Jones activated his overhead lights, and pulled Forquer over based on an expired
registration tag. When Jones approached Forquer’s vehicle, the window was still rolled
up. Jones had to tap on the window before Forquer rolled it down. When he did, unlike
the situation in Kerserich, Jones immediately detected the odor of alcoholic beverage.
Jones further noted Forquer’s eyes were bloodshot and glassy. Asked if he had
consumed alcohol, Forquer admitted to consuming two drinks at 9:45 p.m. T. at 9 - 13.
{¶ 15} Jones went back to his cruiser to verify Forquer’s information. When he
returned to Forquer and asked him to activate his hazard lights, Forquer passed over the
hazard light button five times before pressing the correct button. T. at 28. Based on all of
these observations, Jones asked Forquer to perform field sobriety tests.
{¶ 18} First, an officer may not request a motorist to perform field sobriety tests
unless the request is independently justified by reasonable suspicion based upon
articulable facts that the motorist is intoxicated. State v. Evans, 127 Ohio App.3d 56, 62,
711 N.E.2d 761 (1998), citing State v. Yemma, Portage App. No. 95-P-0156, 1996 WL
49507 (Aug. 9, 1996). “Reasonable suspicion is “ * * * something more than an inchoate
or unparticularized suspicion or hunch, but less than the level of suspicion required for
probable cause.” State v. Shepherd, 122 Ohio App.3d 358, 364, 701 N.E.2d 778 (1997).
Delaware County, Case No. 16 CAC 09 0038 6
“A court will analyze the reasonableness of the request based on the totality of the
circumstances, viewed through the eyes of a reasonable and prudent police officer on the
scene who must react to events as they unfold.” Village of Kirtland Hills v. Strogin, Lake
App. No.2005-L-073, 2006-Ohio-1450, ¶13, citing, Village of Waite Hill v. Popovich, Lake
App. No.2001-L-227, 2003-Ohio-1587, ¶14.
{¶ 16} Second, as we noted in State v. Strope, 5th Dist. Fairfield No. 08 CA 50,
2009-Ohio-3849 ¶ 19 “Where a non-investigatory stop is initiated and the odor of alcohol
is combined with glassy or bloodshot eyes and further indicia of intoxication, such as an
admission of having consumed alcohol, reasonable suspicion exists.”
{¶ 17} That is exactly the situation presented in this matter. We therefore find that
the totality of the circumstances gave Officer Jones sufficient indicia of intoxication to
establish a reasonable suspicion to request Forquer to submit to field sobriety testing.
Delaware County, Case No. 16 CAC 09 0038 7
{¶ 17} The sole assignment of error is denied.
By Wise, Earle, J.
Gwin, J. and
Wise, John, J. concur.
EEW/sg 807