State v. Keserich , 2014 Ohio 5120 ( 2014 )

[Cite as State v. Keserich, 2014-Ohio-5120.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
ERIK M. KESERICH : Case No. 14-COA-011
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case
No. 13-TRC-07726
JUDGMENT: Reversed; Vacated and Remanded
DATE OF JUDGMENT: November 19, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS R. GILMAN TOD A. BRININGER
133 South Market Street 1801 Watermark Drive
Loudonville, OH 44842 Suite 350
Columbus, OH 43215
RUSSELL S. BENSING
1370 Ontario Street
1350 Standard Building
Cleveland, OH 44113
Ashland County, Case No. 14-COA-011 2
Hoffman, P.J.
{¶1} On September 29, 2013, Loudonville Police Officer Joseph Peters
stopped Appellant, Erik Keserich, for a faulty license plate light. Following an
investigation and field sobriety tests, Appellant was charged with operating a motor
vehicle while under the influence, in violation of R.C. 4511.19(A)(1)(A), a third such
offense in six years, in violation of R.C. 4511.19(A)(1)(H); no license plate light, in
violation of R.C. 4513.15; and cracked windshield, in violation of R.C. 4513.02.
{¶2} On November 12, 2013, Appellant filed a motion to suppress, claiming an
illegal stop, no reasonable suspicion to justify the administration of field sobriety tests,
and no probable cause to arrest. Appellant further challenged the officer's substantial
compliance with the field sobriety tests. A hearing was held on January 14, 2014. By
judgment entry filed February 25, 2014, the trial court granted in part and denied in part
the motion, finding the stop was justified and probable cause existed to arrest
Appellant, but found the administration of the horizontal nystagmus test was
noncompliant and Appellant was not properly advised of his Miranda rights. As a
result, the trial court suppressed the results of the test and any statements made after
arrest.
{¶3} On March 18, 2014, the state dismissed the R.C. 4511.19(A)(1)(A) OVI
charge and Appellant pled no contest to the remaining charges. By judgment order
filed April 28, 2014, the trial court sentenced Appellant to one hundred eighty days in
jail, sixty days suspended.
{¶4} Appellant filed an appeal and this matter is now before this Court for
consideration. Appellant assigns as error:
Ashland County, Case No. 14-COA-011 3
I
{¶5} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
OVERRULING DEFENDANT'S MOTION TO SUPPRESS, IN DEROGATION OF
DEFENDANT'S RIGHTS UNDER THE 4TH AND 14TH AMENDMENT TO THE
UNITED STATES CONSTITUTION."
I
{¶6} Appellant claims the trial court erred in denying his motion to suppress
because Officer Peters lacked reasonable suspicion based upon articulable facts to
justify the administration of the field sobriety tests. We agree.
{¶7} 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 findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In
that case, an appellate court can reverse the trial court for committing an error of law.
State v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this 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
Ashland County, Case No. 14-COA-011 4
any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court
held in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general
matter determinations of reasonable suspicion and probable cause should be reviewed
de novo on appeal."
{¶8} "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.
{¶9} This appeal involves a very focused and direct set of facts. Officer Peters
testified he stopped Appellant's vehicle at approximately 2:00 a.m. for "[n]ot having a
license plate light illuminating a license plate." T. at 5, 6-7. Upon making contact with
Appellant, Officer Peters noticed Appellant's eyes were "bloodshot and watery." T. at
7. Appellant admitted to Officer Peters he had consumed two drinks of alcohol. T. at
7-8. Based on these facts, Officer Peters decided to conduct field sobriety tests. T. at
8. Officer Peters did not detect an odor of alcohol as Appellant's four to five
passengers were all smoking and all he could smell was smoke, but once Appellant
stepped out of the vehicle prior to performing the field sobriety tests, Officer Peters
detected an odor of alcohol on Appellant's person. T. at 8-9.
Ashland County, Case No. 14-COA-011 5
{¶10} Appellant argues because there was no evidence of impaired driving and
Officer Peters only testified to bloodshot watery eyes and his admission of alcohol
consumption, there were insufficient articulable facts to justify the administration of the
field sobriety tests. Appellant argues he was able to retrieve his driver's license and
information, was in a smoked filled vehicle with four to five other people, and was able
to navigate and respond to Officer Peters's requests. T. at 31, 32-33, 37-38.
{¶11} In determining whether an officer has reasonable suspicion to justify the
administration of field sobriety tests, we must look at the totality of the circumstances
and a number of factors. State v. Evans, 127 Ohio App.3d 56 (11th Dist.1998). The
Evans court explained at fn. 2:
Without citing the numerous cases which have been canvassed, it
may be said these factors include, but are not limited to (1) the time and
day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday
morning); (2) the location of the stop (whether near establishments selling
alcohol); (3) any indicia of erratic driving before the stop that may indicate
a lack of coordination (speeding, weaving, unusual braking, etc.); (4)
whether there is a cognizable report that the driver may be intoxicated; (5)
the condition of the suspect's eyes (bloodshot, glassy, glazed, etc.); (6)
impairments of the suspect's ability to speak (slurred speech, overly
deliberate speech, etc.); (7) the odor of alcohol coming from the interior of
the car, or, more significantly, on the suspect's person or breath; (8) the
intensity of that odor, as described by the officer ("very strong," "strong,"
"moderate," "slight," etc.); (9) the suspect's demeanor (belligerent,
Ashland County, Case No. 14-COA-011 6
uncooperative, etc.); (10) any actions by the suspect after the stop that
might indicate a lack of coordination (dropping keys, falling over, fumbling
for a wallet, etc.); and (11) the suspect's admission of alcohol
consumption, the number of drinks had, and the amount of time in which
they were consumed, if given. All of these factors, together with the
officer's previous experience in dealing with drunken drivers, may be taken
into account by a reviewing court in determining whether the officer acted
reasonably. No single factor is determinative.
{¶12} It appears four of the enumerated factors were present in this case. It was
2:00 a.m. on Sunday morning following a Saturday night; Appellant's eyes were
bloodshot and watery; he had an odor of alcohol on his person; and he admitted to
alcohol consumption.
{¶13} The law in Ohio remains it is not illegal to consume alcohol and then
operate a motor vehicle. Only if the driver's ability to operate the vehicle is appreciably
impaired or the driver tests above a per se level for alcohol in his or her system does a
person violate the law.
{¶14} While it is evident Appellant exhibited certain indicia of alcohol impairment,
the law is clear that the totality of circumstances must be considered.
{¶15} Of utmost significance to our decision is the fact the arresting officer did
not observe any moving violation, let alone a de minimus one, regarding Appellant's
operation of his vehicle. The stop was based solely upon an equipment violation.
{¶16} We find the fact the stop occurred at 2:00am on a Sunday morning is of
import, but not of much significance. We conclude the admission of consumption of
Ashland County, Case No. 14-COA-011 7
two alcoholic drinks is significant, but not determinative, given the status of the law in
Ohio regarding drinking and driving. A smell of an odor of alcohol on the Appellant is a
factor of significance,1 but is not surprising given his admission of consumption of two
alcoholic drinks. These two factors are cumulative in effect; they do not have a
synergistic effect on a reasonable grounds determination.
{¶17} The fact Appellant's eyes were bloodshot and glossy is certainly a factor.
In a case similar to the facts sub judice, State of Ohio/City of Fairfield v. Lucking, 12th
Dist. Butler No. CA2002-12-303, 2004-Ohio-90, we note our brethren from the Twelfth
District stated:
"However, we find that glassy, bloodshot eyes are generally
accepted as classic indicia of intoxication. ***Furthermore, the fact that
there may have been another explanation for appellant's glassy, bloodshot
eyes does not diminish the relevance of these factors regarding the
question of whether the officer reasonably suspected appellant was
intoxicated."
{¶18} We disagree. We find the fact Appellant was found in a car with four or
five other passengers in it who were smoking does diminish the relevance of this
factor. Even the arresting officer conceded under the circumstances the conditions of
Appellant's eyes could have been caused by something other than alcohol.
{¶19} That there were other circumstances which served to diminish reasonable
suspicion of intoxication should not be discounted when applying a totality of the
circumstances analysis. The fact Appellant did not fumble or have other difficulty
1
There was no testimony by the officer regarding the intensity of the odor of alcohol. Tr.
at 8-9.
Ashland County, Case No. 14-COA-011 8
producing his license, registration and/or proof of insurance (often cited by prosecutors
as an indicia of intoxication) is an indicator Appellant was not intoxicated. Likewise, the
fact Appellant had no problem exiting his vehicle, and exhibited no clues of impairment
in his normal walking are factors demonstrating a lack of alcohol impairment. Further,
Appellant's ability to respond appropriately to the arresting officer's requests diminishes
a reasonable suspicion of intoxication.
{¶20} Appellant's assignment of error is sustained. We reverse the trial court's
judgment on Appellant's motion to suppress, vacate Appellant's conviction and
sentence and remand the matter to the trial court for further proceedings.
By Hoffman, P.J.
Delaney, J. concurs,
Farmer, J. dissents.
Ashland County, Case No. 14-COA-011 9
Farmer, J., dissents
{¶21} I respectfully dissent from the majority's opinion that appellant did not
exhibit indicia of intoxication, despite the fact that he was in a smoked filled vehicle that
could impact bloodshot, watery eyes.
{¶22} Under the totality of the circumstances test as applied by the majority
(Evans, supra), I would find the bloodshot, glassy eyes, together with the factors of 2:00
a.m. on Sunday morning, admission of alcohol consumption, and odor of alcohol on
appellant's person were sufficient to support Officer Peters's decision to pursue the
issue and conduct field sobriety tests, agreeing with my brethren from the Twelfth
District in State of Ohio/City of Fairfield v. Lucking, supra, at ¶ 11 ("the fact that there
may have been another explanation for appellant's glassy, bloodshot eyes does not
diminish the relevance of these factors regarding the question of whether the officer
reasonably suspected appellant was intoxicated ").
{¶23} I am loath to comment on what number of factors needs to be present to
justify field sobriety testing. Each case will stand or fall on the particular facts presented
and not rest on mathematical calculations. In this case, I find the totality of the
circumstances, coupled with the "on the road" judgment call of Officer Peters, to be
sufficient to justify the testing.
{¶24} I would affirm the conviction.