State v. Tackett ( 2011 )


Menu:
  • [Cite as State v. Tackett, 
    2011-Ohio-6711
    .]
    IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
    STATE OF OHIO                                       :
    Plaintiff-Appellant                         :   C.A. CASE NO. 2011-CA-15
    vs.                                                :    T.C. CASE NO. TRC 1004201
    BRANDON TACKETT                                     :   (Criminal Appeal from
    Common Pleas Court)
    Defendant-Appellee                          :
    . . . . . . . . .
    O P I N I O N
    Rendered on the 23rd day of December, 2011.
    . . . . . . . . .
    Betsy A. Deeds, Atty. Reg. No. 0076747, Assistant Fairborn
    Prosecutor, 510 West Main Street, Fairborn, OH 45324
    Attorneys for Plaintiff-Appellee
    Terry L. Lewis, Atty. Reg. No. 0010324, 111 W. First Street, Suite
    1000, Dayton, OH 45402
    Attorney for Defendant-Appellant
    . . . . . . . . .
    GRADY, P.J.:
    {¶ 1} Defendant, Brandon Tackett, appeals from his conviction
    and sentence for operating a motor vehicle while under the influence
    of alcohol.
    {¶ 2} On May 2, 2010, between 2:00 a.m. and 3:00 a.m., Ohio
    2
    Highway Patrol Trooper D. Howard was patrolling westbound on
    Colonel Glenn Highway when he observed Defendant’s vehicle back
    out of a tavern parking lot onto Colonel Glenn Highway ahead of
    him.    While following behind Defendant’s vehicle, Trooper Howard
    observed that Defendant’s vehicle traveled over the right fog line
    by approximately one foot, then traveled over the lefthand double
    yellow lines, drifted right, then traveled over the lefthand double
    yellow lines, and then traveled right six to eight inches over
    the fog line.
    {¶ 3} Trooper Howard activated his overhead emergency lights
    to initiate a traffic stop.     In response, Defendant turned left
    onto Old Yellow Springs Road and then turned right onto a side
    road where he came to a stop.   At the time of the stop, Defendant’s
    vehicle remained in the right lane of traffic on the side road.
    {¶ 4} Upon making contact with Defendant, Trooper Howard
    noticed that Defendant’s speech was slurred, his eyes were glassy
    and bloodshot, and that a strong odor of alcohol was coming from
    Defendant’s breath.    Trooper Howard also noticed that Defendant’s
    head led the direction of his eyes.    Based on these observations
    and for his personal safety, Trooper Howard asked Defendant to
    exit his vehicle.     After Defendant exited his vehicle, Trooper
    Howard asked Defendant if he had consumed any alcohol that night.
    Defendant responded that he had consumed a couple of beers.
    3
    {¶ 5} Trooper Howard asked Defendant to perform several field
    sobriety tests and Defendant consented.              Trooper Howard had
    Defendant perform the horizontal gaze nystagmus test, the vertical
    nystagmus test, the walk-and-turn test, and the one-leg stand test.
    On the horizontal gaze nystagmus test, Trooper Howard detected
    six out of a possible six clues and also observed vertical
    nystagmus.     On the walk-and-turn test, Trooper Howard detected
    five clues out of a potential eight.          On the one-leg stand test,
    Trooper Howard observed two clues.          Following the administration
    of the field sobriety tests, Trooper Howard placed Defendant under
    arrest, handcuffed him, and advised him of his Miranda rights.
    Defendant subsequently refused administration of the chemical test
    to determine his blood alcohol content.
    {¶ 6} Defendant was charged with operating a vehicle while
    under    the   influence   in   violation    of   R.C.   4511.19(A)(1)(a),
    operating a vehicle while under the influence and refusing the
    chemical test with a prior conviction within twenty years in
    violation of R.C. 4511.19(A)(2), and failure to drive within marked
    lanes in violation of R.C. 4511.33.          Defendant filed a motion to
    suppress evidence obtained during the traffic stop.             On January
    28, 2011, following two days of hearing, the trial court overruled
    Defendant’s motion in part and granted it in part.              Defendant
    entered a plea of no contest to a violation of R.C. 4511.19(A)(2)
    4
    and was sentenced on January 31, 2011.        The remaining two charges
    were dismissed.
    {¶ 7} Defendant filed a timely notice of appeal.
    ASSIGNMENT OF ERROR
    {¶ 8} “THE    TRIAL    COURT   ERRED   WHEN    IT    FAILED   TO   GRANT
    APPELLANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED SUBSEQUENT TO
    THE APPELLANT BEING ORDERED TO LEAVE HIS MOTOR VEHICLE.”
    {¶ 9} In considering a motion to suppress, the trial court
    assumes the role of trier of fact and is in the best position to
    resolve factual questions and evaluate the credibility of the
    witnesses.        State    v.   Mills   (1992),    
    62 Ohio St.3d 357
    .
    Consequently, in     reviewing a trial court’s decision on a motion
    to suppress, an appellate court must accept the trial court’s
    findings of fact if        they are supported by competent, credible
    evidence. State v. Curry        (1994), 
    95 Ohio App.3d 93
    , 96, citing
    State v. Schiebel (1990), 
    55 Ohio St.3d 71
    .             An appellate court,
    however, determines       as a matter of law, without deferring to the
    trial court’s conclusions, whether the law has been appropriately
    applied to   those facts.        
    Id.,
     citing State v. Claytor (1993),
    
    85 Ohio App.3d 623
    .
    {¶ 10} On appeal, Defendant does not contest that his initial
    stop for traffic violations was lawful.            Dayton v. Erickson, 
    76 Ohio St.3d 3
    , 
    1996-Ohio-431
    .        Rather, Defendant claims that the
    5
    police officer lacked the reasonable suspicion that he was driving
    his vehicle while under the influence of alcohol necessary to
    justify continuing his detention for further investigation for
    driving under the influence by conducting field sobriety tests.
    State v. Evans (1998), 
    127 Ohio App.3d 56
    .
    {¶ 11} The trial court found that:
    {¶ 12} “Trooper Howard had reasonable and articulable suspicion
    to detain the defendant.   At the time that the trooper requested
    the defendant to exit the vehicle the troop [sic] knew of the
    above-described driving, that he detected a strong odor of an
    alcoholic beverage emitting from the defendant’s breath, that
    defendant’s head led the direction of his eyes, that defendant’s
    eyes were bloodshot and glassy, and that defendant’s speech was
    slurred.   Based upon these observations, the Court finds that the
    trooper had reasonable and articulable suspicion to detain the
    defendant further.”   (Dkt. 95.)
    {¶ 13} Defendant relies upon previous decisions of this court
    wherein we stated that an odor of alcohol, or a slight odor of
    alcohol, coupled with a de minimus traffic violation, glassy
    bloodshot eyes, and an admission to having consumed one or two
    beers, was insufficient to create a reasonable suspicion of
    driving under the influence and justify the administration of field
    sobriety tests. State v. Spillers (Mar. 24, 2000), Darke App. No.
    6
    1504; State v. Dixon (Dec. 1, 2000), Greene App. No. 2000-CA-30.
    This court has, however, repeatedly held that a strong odor of
    alcohol alone is sufficient to provide an officer with reasonable
    suspicion of criminal behavior. See    State v.   Marshall, Clark
    App. No. 2001CA35, 
    2001-Ohio-7081
     (and the cases cited therein.)
    {¶ 14} Here, Defendant was stopped at approximately 2:00 a.m.,
    after committing lane violations.      When Trooper Howard made
    contact with Defendant he noticed that Defendant’s eyes were glassy
    and bloodshot and that a strong odor of alcohol emanated from
    Defendant’s breath.   Further, Defendant’s head led his eyes when
    Trooper Howard spoke with Defendant.     Trooper Howard testified
    that this is common in individuals who have consumed alcohol.
    Further, Trooper Howard testified that Defendant’s speech was
    slurred.   Defendant argues that the videotape of Defendant’s
    traffic stop taken by the camera in Trooper Howard’s cruiser does
    not support a finding that Defendant’s speech was slurred.
    However, even assuming that Defendant’s speech was not slurred,
    the remaining facts, considered together, are sufficient to give
    rise to a reasonable suspicion of criminal behavior, OMVI, and
    justified continuing Defendant’s detention in order to conduct
    field sobriety tests. State v. Knox, Greene App. No.     2005CA74,
    
    2006-Ohio-3039
    .
    {¶ 15} Defendant also argues that Trooper Howard’s failure to
    7
    execute all of the “PRE-EXIT INTERVIEW TECHNIQUES” outlined in
    Section VI of the National Highway Traffic Safety Administration
    Manual for DWI Detection and Standardized Field Sobriety Testing
    (“NHTSA Manual”) precludes a finding that Trooper Howard had
    sufficient, reasonable suspicion to continue the detention of
    Defendant and order him out of his vehicle.      We disagree.
    {¶ 16} “[P]olice officers may require that the occupants of
    a motor vehicle exit the vehicle pursuant to a stop for a traffic
    violation because of the legitimate safety concerns of both the
    officer and the occupants.”    State v. Brock, Montgomery App. No.
    23665, 
    2010-Ohio-5885
    , at ¶17 (citations omitted).     As the United
    States Supreme Court has explained:
    {¶ 17} “The hazard of accidental injury from passing traffic
    to an officer standing on the driver’s side of the vehicle may
    also be appreciable in some situations.    Rather, than conversing
    while standing exposed to moving traffic, the officer prudently
    may prefer to ask the driver of the vehicle to step out of the
    car and off onto the shoulder of the road where the inquiry may
    be pursued with greater safety to both.”     Pennsylvania v. Mimms
    (1977), 
    443 U.S. 106
    , 111, 
    98 S.Ct. 330
    , 
    54 L.Ed.2d 331
    .
    {¶ 18} Further, under the heading “THE EXIT SEQUENCE” in Section
    VI-6, the NTHSA Manual states, in part: “Your decision to instruct
    the driver to step from the vehicle usually is made after you have
    8
    developed a suspicion that the driver is impaired.[] Except,
    however, that you may instruct a suspect to exit the vehicle as
    a means of ensuring your own safety.    Safety considerations take
    precedence over all other considerations.”
    {¶ 19} Trooper Howard testified that he had Defendant exit his
    vehicle because his car was parked in the right lane of the roadway
    and the safety of Trooper Howard would be compromised if he
    continued to question Defendant from outside the driver’s side
    window.   (November 2, 2010 Transcript, p. 86-87.)   Once Defendant
    exited the vehicle, Trooper Howard walked him to the front of the
    patrol car.   (October 11, 2010 Transcript, p. 25.)     Pursuant to
    Mimms and Section VI-6 of the NHTSA Manual, the safety of Officer
    Howard was a sufficient reason, in and of itself, to order Defendant
    out of his vehicle.
    {¶ 20} Defendant concedes in his brief that an officer need
    not follow all of the procedures set forth in the NHTSA Manual.
    However, Defendant argues that his field sobriety tests should
    be suppressed from evidence because Trooper Howard did not have
    sufficient reasonable suspicion to further detain Defendant to
    administer the field sobriety tests.    Defendant does not identify
    any section of the NHTSA Manual which is mandatory that Trooper
    Howard did not follow.   Neither does Defendant identify any section
    of the Revised Code that Trooper Howard violated when he decided
    9
    to have Defendant exit the vehicle.
    {¶ 21} R.C. 4511.19(D)(4) addresses situations in which the
    results of field sobriety tests may be used in criminal proceedings.
    R.C. 4511.19(D)(4) provides, in pertinent part:
    {¶ 22} “(b) In any criminal prosecution or juvenile court
    proceeding for a violation of division (A) or (B) of this section,
    * * * if a law enforcement officer has administered a field sobriety
    test to the operator of the vehicle involved in the violation and
    if it is shown by clear and convincing evidence that the officer
    administered the test in substantial compliance with the testing
    standards for any reliable, credible, and generally accepted field
    sobriety tests that were in effect at the time the tests were
    administered, including, but not limited to, any testing standards
    then in effect that were set by the national highway traffic safety
    administration, all of the following apply:
    {¶ 23} “(i) The officer may testify concerning the results of
    the field sobriety test so administered.
    {¶ 24} “(ii) The prosecution may introduce the results of the
    field sobriety test so administered as evidence in any proceedings
    in the criminal prosecution or juvenile court proceeding.
    {¶ 25} “(iii)   If   testimony   is   presented   or   evidence   is
    introduced under division (D)(4)(b)(I) or (ii) of this section
    and if the testimony or evidence is admissible under the Rules
    10
    of Evidence, the court shall admit the testimony or evidence and
    the trier of fact shall give it whatever weight the trier of fact
    considers to be appropriate.
    {¶ 26} “(c) Division (D)(4)(b) of this section does not limit
    or preclude a court, in its determination of whether the arrest
    of a person was supported by probable cause or its determination
    of any other matter in a criminal prosecution or juvenile court
    proceeding of a type described in that division, from considering
    evidence or testimony that is not otherwise disallowed by division
    (D)(4)(b) of this section.”
    {¶ 27} R.C. 4511.19(D)(4)(b) and (c) are “a codification of
    the Ohio Supreme Court’s holding in State v. Schmitt, 
    101 Ohio St.3d 79
    , 
    801 N.E.2d 446
    , 
    2004-Ohio-37
    , which held that even if
    the actual test results of nonscientific standard field sobriety
    tests were deemed inadmissible, an officer may nevertheless testify
    as a lay witness, regarding observations made during a defendant’s
    performance of these tests and the court may rely on this testimony
    in making its probable cause determination.”     State v. Lothes,
    Portage App. No. 2006-P-0086, 
    2007-Ohio-4226
    , ¶47, citing Schmitt,
    at ¶13-16.
    {¶ 28} As the Supreme Court explained in Schmitt, at ¶14:
    {¶ 29} “We see no reason to treat an officer’s testimony
    regarding the defendant’s performance on a nonscientific field
    11
    sobriety test any differently from his testimony addressing other
    indicia of intoxication, such as slurred speech, bloodshot eyes,
    and odor of alcohol.     In all of these cases, the officer is
    testifying about his perceptions of the witness, and such testimony
    helps resolve the issue of whether the defendant was driving while
    intoxicated.”
    {¶ 30} Here,   Trooper   Howard   testified     regarding   his
    observations of Defendant that led to his decision to further detain
    Defendant to conduct field sobriety tests.         This testimony is
    admissible and supports the trial court’s finding that Trooper
    Howard had a reasonable and articulable suspicion of driving under
    the influence to justify his decision to have Defendant exit the
    vehicle and administer field sobriety tests.
    {¶ 31} The assignment of error is overruled.    The judgment of
    the trial court will be affirmed.
    FAIN, J., And HALL, J., concur.
    Copies mailed to:
    Betsy A. Deeds, Esq.
    Terry L. Lewis, Esq.
    Hon. Beth W. Root
    

Document Info

Docket Number: 2011-CA-15

Judges: Grady

Filed Date: 12/23/2011

Precedential Status: Precedential

Modified Date: 10/30/2014