State v. True , 137 Ohio App. 3d 348 ( 2000 )

While there is no disagreement with the facts in this case, I disagree with the conclusions to be drawn from them as a matter of law. Brian True was charged with operating a motor vehicle while under the influence of alcohol in violation of R.C.4511.19(A)(1), operating a motor vehicle with a prohibited alcohol concentration in violation of R.C. 4511.19(A)(3), and improper change of course in violation of Cincinnati Municipal Code 506-80. The record reveals that the arresting officer initially stopped True because he had cut across three lanes of traffic when making a turn. The officer stated that True appeared "confused" at the time of the initial stop, because he stopped and started his car before finally bringing it to a stop. The officer testified that True had an odor of alcohol on his breath, that his eyes appeared glazed, and that he fumbled for his wallet. When questioned by the officer, True admitted to consuming three to four drinks that evening. Based on these facts alone, I believe that there was probable cause to arrest True.

The officer then administered the field sobriety tests. According to the officer's testimony, True had performed reasonably well on the tests, but he did make some mistakes. Based on the totality of the circumstances, the arresting officer believed that True was under the influence of alcohol and that his driving was impaired. True was then taken to a police station, where an intoxilyzer test was administered and he "blew" a .104, which is over the legal limit.

The record reflects that the trial court erred in sustaining True's motion to suppress. First, the trial court appears to have erroneously concluded that True's driving was not impaired and, as a result, that there was no probable cause to arrest based on the field sobriety tests alone. Specifically, the court stated the following:

I think it was clear that the Police Officer concluded before conducting the field sobriety tests the Defendant was driving under the influence of alcohol.

If the field sobriety tests are to mean anything, a police officer must use the results of the field sobriety tests to validate the Defendant's impairment, if any.

Second, the court appears to have determined True's guilt or innocence at the suppression hearing rather than whether there was probable cause to arrest.

This court has repeatedly held that watery eyes, the odor of alcohol, and the admission of recent consumption of alcohol constitute probable cause to arrest.¹ In Cincinnati v.Kromski,² we noted that recent amendments to R.C. 4511.19et seq. had "created a low threshold for probable cause in cases involving warrantless arrests for DUI violations."³ As a result, we held that erratic driving, the odor of alcohol, and the admission of recent consumption of alcohol constituted probable cause.⁴ Further, in State v. Tonne,⁵ we determined that red, watery eyes, the odor of alcohol, the presence of beer cans in the car, and swaying back and forth provided probable cause to arrest. By concluding that, as a matter of law, the erratic driving, glazed eyes, odor of alcohol, fumbling for a wallet, and admission of recent consumption of alcohol present in this case did not amount to probable cause, the trial court inappropriately called into doubt what constitutes probable cause in alcohol-related cases, particularly those involving charges under R.C. 4511.19(A)(3).⁶ For these reasons, I respectfully dissent.

¹ See, e.g., State v. Deters (1998), 128 Ohio App.3d 329,714 N.E.2d 972 (evidence of erratic operation of a watercraft, slurred speech, odor of alcohol, and admission of recent alcohol consumption provided probable cause to arrest); State v. Lee (Sept. 18, 1996), Hamilton App. No. C-960123, unreported (evidence of erratic driving, odor of alcohol, slurred speech, and bloodshot eyes provided probable cause to arrest); State v. McWilliams (Mar. 1, 1995), Hamilton App. Nos. C-940378 and C-940379, unreported (evidence of watery eyes, slurred speech, odor of alcohol, and recent consumption of alcohol constituted probable cause to arrest following an accident).

² (1995), 102 Ohio App.3d 621, 657 N.E.2d 796.

³ Id. at 623, 657 N.E.2d at 797.

⁴ Id. at 623-624; 657 N.E.2d at 797-798.

⁵ (Sept. 24, 1999), Hamilton App. No. C980710, unreported, appeal not allowed (2000), 88 Ohio St.3d 1411, 723 N.E.2d 117.

⁶ See, e.g., State v. Ousley (Sept. 20, 1999), Ross App. No. 99CA2476, unreported (impaired coordination is not needed to establish probable cause to arrest for a violation of R.C.4511.19[A][3]); State v. Downard (Dec. 19, 1997), Washington App. No. 97 CA 24, unreported (observation of usual impaired motor skills is not required to establish probable cause for a per se violation under R.C. 4511.19[A][3]); State v. Buckley (Mar. 7, 1994), Warren App. No. CA93-09-076, unreported (probable cause to arrest under R.C. 4511.19[A][3] requires only sufficient evidence of alcohol consumption and intoxication).