State v. McCaig , 51 Ohio App. 3d 94 ( 1988 )

This appeal results from appellant's conviction in the Bowling Green Municipal Court following a plea of no contest to the charge of driving under the influence of alcohol. Appellant, Dale J. McCaig, was involved in a minor motor vehicle accident on September 4, 1987 in which he was not at fault. A state trooper was called to the scene of the accident and proceeded to investigate. Following his conversations with appellant during the course of the investigation, the trooper determined that in his judgment, based upon observation, testing and the admissions of appellant, that appellant had been driving his automobile while under the influence of alcohol. He issued a citation accordingly, the legal process commenced and the conviction has resulted in this appeal. Appellant suggests as his single assignment of error, the following proposition:

"The trial court erred, as a matter of law, in denying appellant's motion to suppress since there is insufficient evidence to support a finding that there was probable cause to arrest the appellant for operating a motor vehicle while under the influence of alcohol."

There is little question about the status of the law which is involved in this appeal and both parties agree that Ohio courts have consistently applied the totality-of-the-circumstances test to determine if there were reasonable grounds to believe that a person had been operating a motor vehicle while under the influence of alcohol. Atwell v. State (1973), 35 Ohio App. 2d 221, 64 Ohio Op. 2d 342, 301 N.E.2d 709. This court has applied that same test to numerous cases and it is always necessary to consider the facts of each case to determine whether or not probable cause existed.

The highway patrolman testified to his training and experience in this case and then most specifically testified to the following pertinent observations made at the scene: (1) The officer testified that he asked appellant if he had been consuming any alcoholic beverages prior to the accident and appellant stated that he had had three beers prior to the accident. (2) The officer testified further that he conducted the gaze nystagmus test to assist him in determining whether or not appellant had been consuming alcoholic beverages. The results of that test, given by a qualified officer, led the officer to the conclusion that appellant was under the influence of alcoholic beverages. (3) The officer further testified that appellant had an odor of alcoholic beverage on his presence. (4) He specifically testified that the speech of appellant was very, very sloppy. The officer further testified t that appellant's walking was not real steady at the time but he was compelled to discount this factor as appellant indicated he had a bad nerve in his left ear and that did not allow him to do any field tests.

Thus, there were four specific factors which this officer observed, any one of which standing alone may not have been sufficient to arouse his suspicion, but, taken in their totality and in the opinion of this court provided the necessary probable cause to arrest appellant for operating a motor vehicle while under the influence of alcohol. Therefore, appellant's sole assignment of error is found not well-taken.

Accordingly, finding that appellant was not prevented from having a fair hearing, we affirm the judgment of the trial court and order this case remanded for execution of sentence.

Judgment affirmed.

HANDWORK and GLASSER, JJ., concur.

CONNORS, J., dissents.