State v. Derov , 176 Ohio App. 3d 43 ( 2008 )

{¶ 32} Although I agree that this conviction should be reversed, I cannot agree with most of the analysis in the majority opinion regarding the manner in which the field sobriety tests were conducted. The majority appears to be holding Trooper Martin to a strict-compliance standard on the field sobriety tests, even with regard to aspects of the tests that are not defined in the National Highway Traffic Safety Administration ("NHTSA") manual. The standard for conducting field sobriety tests is substantial compliance, and there is competent and credible evidence in the record that Trooper Martin substantially complied in conducting the tests. In reversing this case, I believe we do not need to discuss the particulars of the field sobriety tests. My basis for reversing the ruling on the motion to suppress is that the officer did not have a sufficient reason to conduct field sobriety tests in the first place. Although an officer needs only a reasonable suspicion that a traffic violation has occurred to effect a traffic stop, that does not automatically justify further investigation into other crimes unless there are additional reasonable and articulable suspicions supporting further investigation. State v.Evans (1998), 127 Ohio App.3d 56, 62, 711 N.E.2d 761.

{¶ 33} Trooper Martin testified that he initiated the field sobriety tests based on a strong smell of alcohol coming from appellant. There was no erratic driving. The trooper did not observe anything about appellant's behavior when she exited her vehicle that might indicate intoxication. He did not even observe whether she had glassy and red eyes until he was already performing the horizontal gaze nystagmus ("HGN") test. Appellant did not confess to drinking any particular amount of alcohol, according to Trooper Martin's testimony. He believed she said she had one beer, but he was not even sure of that. My interpretation of the evidence presented at the suppression hearing is that Trooper Martin conducted the field sobriety tests on the sole basis that he smelled alcohol.

{¶ 34} The majority cites a case we have previously cited that places some limits on the facts that might satisfy the "reasonable and articulable" requirement in order to support an officer's decision to conduct field sobriety tests. In State v. Dixon (Dec. 1, 2000), 2nd Dist. No. 2000-CA-30, 2000 WL 1760664, the Second District Court of Appeals found no reasonable and articulable suspicion to conduct field sobriety tests based on an odor of alcohol, red glassy eyes at 2:20 a.m., and an admission from the defendant that he had consumed one or two beers. We cited Dixon in approval in a very recent case, State v. Reed, 7th Dist. No. 05 BE 31, 2006-Ohio-7075, 2006 WL 3849267. In Reed, we determined that there was no justification for conducting field sobriety tests based merely on a slight odor of alcohol, red glassy eyes at 1:05 a.m., and an admission from the defendant that he had consumed two beers. We have previously held that an odor of alcohol alone cannot justify conducting field sobriety tests. State v. Downen (Jan. 12, 2000), 7th Dist. No. 97-BA-53, 2000 WL 126616. I cannot see how we can be consistent with our recent Reed and Downen cases unless we rule that an officer does not have reasonable and articulable suspicion to conduct field sobriety tests merely on the basis of a strong odor of alcohol. Even if we include the red glassy eyes as a factor, which I am not inclined to do given the trooper's testimony, we have already concluded in Reed that facts limited to the smell of alcohol and red glassy eyes at a late hour do not permit an officer to conduct field sobriety tests.

{¶ 35} This is where our analysis should end. We do not need to issue new pronouncements of law regarding whether portable breath tests can be used at suppression hearings, or whether the HGN test must take at least 68 seconds even though the NHTSA manual makes no mention of this, or that an officer does not substantially comply with the walk-and-turn test unless the officer repeats certain instructions even though the NHTSA manual does not so mandate. If we were required to reach and discuss these issues, and we are not, I would disagree with all three of these bright-line holdings made by the majority, particularly in imposing a minimum time requirement on the HGN test above and beyond the requirements of the NHTSA manual. In both cases cited by the majority in support of this conclusion, the time factor was clearly not the only reason given for disqualifying the HGN test. See State v.Embry, 12th Dist. No. CA2003-11-10, 2004-Ohio-6324,2004 WL 2698417; State v. Mai 2nd Dist. No. 2005-CA-115,2006-Ohio-1430, 2006 WL 759706. Furthermore, in neither case can we determine the amount of time the officers actually took to perform the HGN tests. In Mai, the evidence showed that the officer took only two seconds to perform aspects of the test that should have taken approximately four seconds. In the instant case, Trooper Martin clearly testified that he took the full four seconds. I cannot agree with establishing a new rule of law regarding the HGN test when the officer's testimony establishes that he conformed to the NHTSA time requirements in performing the test.

{¶ 36} Finally, the majority's statement that "it is only illegal to drive while impaired" in Ohio is inaccurate. It is true that R.C. 4511.19(A)(1)(a) prohibits driving while under the influence of alcohol. On the other hand, R.C. 4511.19(A)(1)(b) through (h) prohibit driving while having certain concentrations of alcohol in one's blood, blood serum, blood plasma, breath, or urine. No impairment need be proven under R.C. 4511.19(A)(1)(b) through (h). There are a multitude of fact patterns by which a person could be successfully prosecuted for OMVI that involve no evidence at all that the person was "impaired."

{¶ 37} It is clear to me that Trooper Martin should not have conducted the field sobriety tests based primarily, if not exclusively, on a strong odor of alcohol. Therefore, while I cannot agree with the reasoning used by the majority, I agree with the result that the majority has reached. I concur in judgment only.