State v. Parks ( 2014 )

[Cite as State v. Parks, 2014-Ohio-1592.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
MEGAN K. PARKS : Case No. 13-CA-78
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Municipal Court, Case No.
12-TRC-08828
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 11, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
J. MICHAEL KING ROBERT E. CALESARIC
Assistant Law Director 35 South Park Place, Suite 150
City of Newark Newark, OH 43055
40 West Main Street, 4th Fl.
Newark, OH 43055
Licking County, Case No. 13-CA-78 2
Baldwin, J.
{¶1} Appellant Megan K. Parks appeals a judgment of the Licking County
Municipal Court overruling her motion to dismiss and convicting her of operating a motor
vehicle while under the influence of alcohol (R.C. 4511.19(A)(1)(a)). Appellee is the
State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} At 3:00 a.m. on August 5, 2012, Officer Colles of the Pataskala City Police
Department was on routine patrol in uniform and driving a marked patrol vehicle
equipped with a camera mounted on the windshield. Colles was traveling eastbound on
Broad Street in the area of Etna Parkway when he passed appellant driving westbound.
Colles observed the tire of appellant’s vehicle over the right side of the white or “fog”
line on the roadway, to the extent that he described the line as between the two front
tires of the vehicle.
{¶3} Colles turned around and caught up to appellant, activating his overhead
lights. Appellant had pulled into a residential driveway and stopped, turning off her
lights, despite the fact that she did not live there. Colles approached the driver’s side of
the vehicle, explained the reason for the stop, and asked for appellant’s information.
Detecting a slight odor of an alcoholic beverage, Colles asked appellant if she had had
anything to drink, and she said no. Colles asked her to say the alphabet and noted she
slurred a few letters and skipped some letters. Appellant also had bloodshot, glassy
eyes.
{¶4} Colles asked appellant to step out of the vehicle and proceeded to
administer a series of standardized field sobriety tests (SFSTs). Once appellant was
Licking County, Case No. 13-CA-78 3
outside the vehicle, Colles noted a more distinct odor of an alcoholic beverage about
her person.
{¶5} Colles was trained in the administration of SFSTs in accord with
guidelines from the National Highway Traffic Safety Administration (NHTSA).
{¶6} Appellant first submitted to the horizontal gaze nystagmus (HGN) test, and
Colles testified that he observed six out of six possible clues of impairment. Next,
appellant performed the walk-and-turn test, on which she indicated three clues of
impairment. Finally, on the one-leg stand test, Colles noted three clues of impairment.
{¶7} Appellant was placed under arrest for O.V.I and later refused to submit to
a breath test. Colles further testified he read appellee the BMV 2255 form and
Mirandized her. At some point after he requested that she take a breath test, and he
made her aware of the legal implications of refusing to do so, appellant asked to call a
lawyer. Colles testified he did not permit her to call a lawyer.
{¶8} Appellant was charged by uniform traffic ticket with one count of O.V.I.
pursuant to R.C. 4511.19(A)(1)(a) and one count of a marked lanes violation pursuant
to R.C. 4511.33. She entered pleas of not guilty and filed a motion to suppress
evidence flowing from the traffic stop and resulting arrest. A hearing was held and the
trial court sustained the motion in part and overruled it in part. The trial court
suppressed the portion of the HGN test involving the onset of nystagmus at maximum
deviation, finding the officer did not conduct that portion of the test in substantial
compliance with NHTSA protocols. The trial court also suppressed the evidence that
appellant refused to submit to a breath test, finding that her request to speak with an
attorney when asked to take a breath test did not constitute a refusal.
Licking County, Case No. 13-CA-78 4
{¶9} The State appealed the trial court’s suppression judgment to this Court.
The state assigned two errors: (1) the trial court erred in suppressing the maximum
deviation portion of the horizontal gaze nystagmus test, and (2) the court erred in
applying the exclusionary rule to appellant’s request to speak with an attorney before
refusing the breath test. We affirmed in part and reversed in part. We found that the
court did not err in suppressing the deviation portion of the HGN test, but found that the
court did err in excluding evidence of appellant’s request to speak to an attorney before
refusing the breath test. We remanded for further proceedings. State v. Parks, 5th
Dist. Licking No. 12-CA-87, 2013-Ohio-2492.
{¶10} Following remand, appellant moved to dismiss, arguing that because the
State certified for purposes of the first appeal that it was unable to proceed to
prosecution due to the trial court’s ruling on the motion to suppress, the State could not
proceed to prosecute the case following the appeal because the State did not prevail on
all issues. The trial court overruled the motion to dismiss. Appellant pled no contest
and was convicted. She assigns one error on appeal:
{¶11} “THE PROSECUTING ATTORNEY SHOULD BE PRECLUDED BY THE
TRIAL COURT FROM PROCEEDING WITH THE PROSECUTION OF THE CASE
BECAUSE THE PROSECUTOR CERTIFIED THAT THE STATE WAS NOT ABLE TO
PROCEED WITH PROSECUTION DUE TO THE TRIAL COURT’S RULINGS BUT YET
THE STATE DID NOT PREVAIL ON ALL THE ISSUES RAISED ON APPEAL.”
{¶12} Crim. R. 12(K) provides in pertinent part:
Licking County, Case No. 13-CA-78 5
{¶13} “When the state takes an appeal as provided by law from an order
suppressing or excluding evidence, or from an order directing pretrial disclosure of
evidence, the prosecuting attorney shall certify that both of the following apply:
{¶14} “(1) the appeal is not taken for the purpose of delay;
{¶15} “(2) the ruling on the motion or motions has rendered the state's proof with
respect to the pending charge so weak in its entirety that any reasonable possibility of
effective prosecution has been destroyed, or the pretrial disclosure of evidence ordered
by the court will have one of the effects enumerated in Crim. R. 16(D). . .
{¶16} “If an appeal from an order suppressing or excluding evidence pursuant to
this division results in an affirmance of the trial court, the state shall be barred from
prosecuting the defendant for the same offense or offenses except upon a showing of
newly discovered evidence that the state could not, with reasonable diligence, have
discovered before filing of the notice of appeal.”
{¶17} In the appeal taken by the State, this Court only partially affirmed the
judgment of the court on the motion to suppress. We reversed the judgment of the
court concerning admission of evidence of appellant’s request to speak to an attorney
before refusing the breath test. Our judgment therefore changed the evidence which
the State was entitled to present on remand, and the State was not precluded from
proceeding pursuant to Crim. R. 12(K). While not expressly considering the issue in the
first appeal, this Court’s decision contemplates that the State would proceed with
prosecution and the case, as we stated in conclusion of our discussion of the second
assignment of error, “We find the parties may present the evidence surrounding the
proffer of the breath test, and Parks response, and the finder of fact may weigh the
Licking County, Case No. 13-CA-78 6
evidence accordingly.” Parks, supra, at ¶28. The trial court did not err in overruling
appellant’s motion to dismiss.
{¶18} The assignment of error is overruled. The judgment of the Licking County
Municipal Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Hoffman, P.J. and
Farmer, J. concur.