State v. Hido , 2011 Ohio 2560 ( 2011 )

[Cite as State v. Hido, 2011-Ohio-2560.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA0046
vs. : T.C. CASE NO. 09TRC10960
09CRB04379
STACY HIDO :
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 27th day of May, 2011.
. . . . . . . . .
Michael F. Sheils, Chief City Prosecutor, Atty. Reg. No.0021678,
50 East Columbia Street, Springfield, OH 45502
Attorney for Plaintiff-Appellee
Charles M. Rowland, II, Atty. Reg. No.0065603, 2190 Gateway Drive,
Fairborn, OH 45324
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Stacy Hido, appeals from her conviction and
sentence for operating a motor vehicle while under the influence
of alcohol (OVI).
{¶ 2} On September 6, 2009, at 10:10 a.m., an Ohio Highway
Patrol air patrol unit clocked Defendant’s vehicle at 85 m.p.h.
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in a 65 m.p.h. zone, Westbound on I-70 just East of State Route
54. Sergeant Bush, who was in a marked cruiser and working with
the air patrol unit, stopped Defendant’s vehicle. Before
Defendant pulled over to the side of the road and stopped, Sergeant
Bush observed her trying to stuff something underneath the
vehicle’s front seat.
{¶ 3} When Sergeant Bush made contact with Defendant, the
driver and sole occupant of the vehicle, she admitted that her
driver’s license had expired. After Defendant rolled down her
window, Sergeant Bush smelled a strong odor of alcohol.
Defendant’s eyes were glassy and bloodshot, and she was very
nervous. When asked by Sergeant Bush, Defendant denied drinking
any alcoholic beverages. Defendant stated that her step-father
had spilled beer on her.
{¶ 4} Sergeant Bush asked Defendant for identification but
she had none. Sergeant Bush then asked Defendant to sit in the
front passenger seat of his cruiser so that he could obtain
information to identify her. While Defendant was sitting in
Sergeant Bush’s cruiser, he noticed that a very strong odor of
alcohol came from Defendant’s breath.
{¶ 5} Sergeant Bush asked Defendant to perform three field
sobriety tests. The first test was the horizontal gaze nystagmus
(HGN) test. Sergeant Bush observed six out of six possible clues.
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The next test was the walk and turn test. Defendant started before
the instructions were completed, and she raised her arms for
balance. The final test was the one leg stand test. Defendant
raised her arms for balance and put her foot down at the count
of seventeen. Defendant’s having failed all three field sobriety
tests, Sergeant Bush arrested Defendant for OVI.
{¶ 6} Another trooper, who had stopped to assist, discovered
an open container of beer underneath the front seat of Defendant’s
vehicle. Defendant was transported to the Springfield Highway
Patrol post where she was given a breath test that produced a result
of .117, well over the legal limit.
{¶ 7} Defendant was charged in Clark County Municipal Court
with speeding, R.C. 4511.21, driving on an expired license, R.C.
4510.12, and operating a motor vehicle with a prohibited breath
alcohol concentration, R.C. 4511.19(A)(1)(d). Defendant filed
a motion to suppress the evidence, including the results of the
field sobriety tests, the Breathalyzer test, and the observations
and opinions of Sergeant Bush. A hearing was held on the motion.
The trial court overruled Defendant’s motion to suppress
evidence.
{¶ 8} Defendant entered a plea of no contest to the OVI charge
and was found guilty by the court. In exchange, the State dismissed
the other pending charges. The trial court sentenced Defendant
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to ninety days in jail with eighty days suspended, a six hundred
and fifty dollar fine, and a two year driver’s license suspension.
Defendant was also placed on six months probation and ordered
to complete an alcohol abuse assessment and treatment. Defendant
filed a notice of appeal from her judgment of conviction. The
trial court stayed execution of Defendant’s sentence pending this
appeal.
FIRST ASSIGNMENT OF ERROR
“THE STATE FAILED TO SHOW PROBABLE CAUSE FOR THE ARREST AND
THE EVIDENCE SHOULD BE SUPPRESSED.”
{¶ 9} Defendant does not contest that her initial stop for
speeding was lawful. Dayton v. Erickson, 76 Ohio St.3d 3,
1996-Ohio-431. Rather, Defendant claims that her arrest lacked
probable cause because police lacked a reasonable, articulable
suspicion that she was operating her vehicle while under the
influence of alcohol, which was necessary to justify her continued
detention for further investigation through field sobriety tests.
State v. Evans (1998), 127 Ohio App.3d 56. Defendant argues that
the evidence merely demonstrates that Defendant had consumed
alcohol, not that she was impaired. State v. Knox, Greene App.
No. 2005CA74, 2006-Ohio-3039. We disagree.
{¶ 10} Defendant relies upon prior decisions of this court
holding that an odor of alcohol, or a slight or unspecified odor
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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 further detention in order to
conduct field sobriety tests. State v. Spillers (Mar. 24, 2000),
Darke App. No. 1504; State v. Dixon (Dec. 1, 2000), Greene App.
No. 2000-CA-30; State v. Swartz, Miami App. No. 2008CA31,
2009-Ohio-902. This court has, however, repeatedly held that a
strong odor of alcohol alone may be 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).
{¶ 11} Defendant was stopped for going 85 m.p.h. in a 65 m.p.h.
zone. This is not a situation involving “nominal” speeding, but
rather one involving excessive speeding, which we have held is
some evidence of impairment. State v. Syx, Montgomery App. No.
23589, 2010-Ohio-5880; State v. Gower, Darke App. No. 1616,
2003-Ohio-5403. When Sergeant Bush made contact with Defendant,
he smelled a strong odor of alcohol coming from Defendant’s breath
and noticed that Defendant’s eyes were glassy and bloodshot and
that she was very nervous. Simply put, these facts are sufficient
to give rise to a reasonable suspicion of impairment that justified
Defendant’s detention to conduct field sobriety tests.
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Furthermore, after Defendant failed all three field sobriety tests,
police had sufficient probable cause to arrest Defendant for OVI.
{¶ 12} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
“THE STATE FAILED TO MOVE INTO EVIDENCE ANY STANDARDS BY WHICH
THE COURT COULD FIND SUBSTANTIAL COMPLIANCE FOR CONDUCTING
STANDARDIZED FIELD SOBRIETY TESTS.”
{¶ 13} Defendant argues that because the three field sobriety
tests Sergeant Bush administered were not shown to have been
conducted in substantial compliance with National Highway Traffic
Safety Administration (NHTSA) standards, the results of those tests
were inadmissible, and without those test results Sergeant Bush
lacked probable cause to arrest Defendant for OVI.
{¶ 14} In State v. Reed, Montgomery App. No. 23357,
2010-Ohio-299, at ¶53, this court observed:
{¶ 15} “The results of field sobriety tests are admissible
at trial if the State presents clear and convincing evidence that
the officer administered the tests in substantial compliance with
National Highway Traffic Safety Administration (‘NHTSA’)
standards. R.C. 4511.19(D)(4)(b); State v. Schmitt, 101 Ohio St.3d
79, 801 N.E.2d 446, 2004-Ohio-37; State v. Davis, Clark App.
No.2008-CA-65, 2009-Ohio-3759. The State can satisfy its burden
without explicit testimony from the officer that he or she
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substantially complied with NHTSA standards in administering the
tests. Davis. Neither is the State required to actually introduce
the NHTSA manual or testimony concerning the standards, where the
record demonstrates, if only by inference, that the court took
judicial notice of the NHTSA standards. State v. Knox, Greene App.
No.2005-CA-74, 2006-Ohio-3039.” That is the case here.
{¶ 16} Evidence that the pertinent rules and regulations have
been followed in conducting field sobriety tests, if unchallenged,
constitutes a sufficient foundation for admission of the test
results. State v. Murray, Greene App. No. 2002-CA-10,
2002-Ohio-4809. Only when a defendant sufficiently challenges
the evidence would the State then need to present more evidence
of more specific compliance. Id. For example, testimony by the
officer that he or she had been trained to perform the horizontal
gaze nystagmus (HGN) test, the walk and turn test, and the one-leg
stand test under NHTSA standards, and that the tests were performed
in the manner in which the officer had been trained, would suffice
for admission of the field sobriety test results, absent a challenge
to some specific way the officer failed to comply with NHTSA
standards. Murray; Knox.
{¶ 17} Defendant points to several matters in the NHTSA manual
that Sergeant Bush did not remember, most of which have nothing
to do with the administration of field sobriety tests. Further,
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Defendant fails to specify in his brief the specific way in which
Sergeant Bush’s administration of the three field sobriety tests
failed to comply with the requirements in the NHTSA manual for
administering those tests.
{¶ 18} A review of Sergeant Bush’s testimony, particularly
his cross-examination, not surprisingly discloses that he has not
committed every detail in the NHTSA manual to memory, nor was his
administration of the three field sobriety tests in this case in
strict compliance with every detail in the NHTSA manual. Strict
compliance is not the standard, however. Substantial compliance
is sufficient. R.C. 4511.19(D)(4)(b); State v. Boczar, 113 Ohio
St.3d 148, 2007-Ohio-1251. We agree with the trial court that
Sergeant Bush’s testimony, taken as a whole, satisfy the
substantial compliance requirement.
{¶ 19} Sergeant Bush testified that he is trained to use
standardized field sobriety tests, including the HGN test, the
walk and turn test and the one leg stand test, that conform to
NHTSA standards. He explained how to conduct the horizontal gaze
nystagmus (HGN) and walk and turn tests. The parties stipulated
that Sergeant Bush is familiar with the walk and turn and one leg
stand tests in the NHTSA manual. Sergeant Bush testified that
he performed the field sobriety tests in this case as he was trained
to do. That evidence is sufficient to demonstrate substantial
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compliance with NHTSA standards for the field sobriety tests,
absent a challenge to some specific way Sergeant Bush failed to
comply with NHTSA standards in administering those tests.
{¶ 20} Defendant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
“THE DEFENDANT WAS PLACED IN CUSTODY WHEN SHE WAS SUBJECTED
TO FIELD SOBRIETY TESTS IN THE TROOPERS CRUISER AND WAS REMOVED
TO A DIFFERENT LOCATION FOR COMPLETION OF THE STANDARDIZED FIELD
SOBRIETY TESTS.”
{¶ 21} After being stopped for speeding and having failed to
produce a driver’s license or any other form of identification,
Defendant was asked to sit in the front passenger seat of Sergeant
Bush’s cruiser while he gathered information to verify Defendant’s
identity. The first field sobriety test, the horizontal gaze
nystagmus (HGN) test, was performed inside Sergeant Bush’s cruiser.
Defendant argues that there was no legal justification to have
her sit in Sergeant Bush’s cruiser, which resulted in an illegal
detention/arrest.
{¶ 22} We have previously held that a police officer may ask
traffic offenders who are not carrying their driver’s license
or any other form of identification to sit in a police cruiser
while the officer verifies the person’s identity. State v. Fritz,
Montgomery App. No. 23054, 2009-Ohio-6690; State v. Dozier,
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Montgomery App. NO. 23841, 2010-Ohio-2918. Before putting the
person into the police cruiser, the officer may not lawfully perform
a weapons patdown if the only reason for putting the person in
the cruiser is for the officer’s convenience as he verifies the
person’s identity. Id. In the present case no pat-down was
performed.
{¶ 23} Having Defendant sit in the front seat of Sergeant
Bush’s cruiser while he verified Defendant’s identity and
administered the horizontal gaze nystagmus test did not convert
an investigative detention into a full blown arrest. An arrest,
which must be supported by probable cause to be valid, is
characterized by four elements: (1) an intent to arrest; (2) under
real or pretended authority; (3) accompanied by actual or
constructive seizure or detention; (4) which is so understood by
the person arrested. State v. Barker (1978), 53 Ohio St.2d 135,
139. On the totality of the facts and circumstances in this case,
it is clear that Sergeant Bush had no intent to arrest Defendant
until after she failed all three field sobriety tests. By that
time, Sergeant Bush clearly had probable cause to arrest Defendant
for OVI.
{¶ 24} Defendant’s third assignment of error is overruled.
The judgment of the trial court will be affirmed.
FROELICH, J. And HALL, J., concur.
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Copies mailed to:
Michael F. Sheils, Esq.
Charles M. Rowland, II, Esq.
Hon. Thomas E. Trempe