State v. Bahen

[Cite as State v. Bahen, 2016-Ohio-7012.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-65
v. : (M.C. No. 2015 TRC 149014)
Gregory T. Bahen, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 27, 2016
On brief: Richard C. Pfeiffer, Jr., City Attorney, and
Melanie R. Tobias, for appellee. Argued: Melanie R. Tobias.
On brief: Jessica G. D'Varga, for appellant. Argued:
Jessica G. D'Varga.
APPEAL from the Franklin County Municipal Court
SADLER, J.
{¶ 1} Defendant-appellant, Gregory T. Bahen, appeals from a sentencing entry of
the Franklin County Municipal Court following appellant's plea of no contest for operating
a vehicle under the influence of alcohol ("OVI") and traffic violations, and from a motion
hearing entry determining issues of reasonable suspicion, probable cause, and
suppression of various field sobriety tests. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 9, 2015 at 12:39 a.m., appellant was charged with OVI-impaired,
pursuant to R.C. 4511.19(A)(1)(a), OVI-per se, pursuant to R.C. 4511.19(A)(1)(d), a driving
in marked lanes violation, pursuant to R.C. 4511.33, and slow speed pursuant to R.C.
4511.22. Appellant entered a plea of not guilty to the charges.
No. 16AP-65 2
{¶ 3} On August 7, 2015, appellant filed a motion challenging the officer's
reasonable suspicion for the initial traffic stop and probable cause for the arrest and
seeking suppression of various field sobriety tests. The trial court held a hearing on the
motion on December 15, 2015. The parties made several stipulations, including the police
cruiser was marked and the cruiser video of the incident was a fair and accurate
representation of events. Deputy Vincent DeRose, a patrol officer with the Franklin
County Sheriff's Office, then testified on behalf of appellee.
{¶ 4} DeRose testified that on July 9, 2015 at about 12:35 a.m., he drove north on
Interstate 315 in order to deliver a civil protection order. DeRose travelled at a speed of
approximately 65 miles per hour. A car drew his attention by passing him in the right
lane "very fast." (Tr. at 9.) After the car passed him, it started to slow down and then
swerved. Although DeRose was not 100 percent sure, he believed the car "swerved to the
left and came back." (Tr. at 11.) When DeRose pulled behind the car, it "slowed way
down," requiring DeRose to hit his breaks fast to avoid rear-ending the car. (Tr. at 12.) In
DeRose's opinion, the slow speed of the car was unreasonable for that part of the highway.
With DeRose behind him, the car swerved again "to the left, hit marked lanes again." (Tr.
at 11.) At that point, DeRose turned on his cruiser lights. DeRose generally agreed that
appellant went over a marked line.
{¶ 5} The car pulled over without incident. Appellant occupied the driver's seat
and one female occupied the passenger seat. On his initial approach of the passenger side
of the car, DeRose testified that he noticed an open can of an alcoholic beverage or beer
named "Four Loko" in the console. (Tr. at 14.) When he put his head toward the window,
he smelled a "very strong" odor of alcohol. (Tr. at 15.) The female passenger said she was
the only one drinking alcohol. DeRose went to the driver's side of the car and noticed one
or two more beer cans on appellant's side of the floor. According to DeRose, appellant
slurred, had a strong smell of alcohol, and had glassy, bloodshot eyes. He could not
remember whether appellant admitted to drinking alcohol. DeRose asked appellant to
exit his vehicle in order to perform field sobriety tests.
{¶ 6} Once out of the car, DeRose asked appellant to perform the horizontal gaze
nystagmus ("HGN") test, the vertical gaze nystagmus ("VGN") test, the walk-and-turn
test, and the one-leg-stand test. Before administering the tests, DeRose confirmed that
No. 16AP-65 3
appellant did not have any physical or medical issues. His partner turned off the cruiser's
front facing flashing lights.
{¶ 7} With regard to the HGN test, DeRose testified that he placed appellant in a
flat, dry, well-lit area and confirmed that his eyes tracked equally and did not show resting
nystagmus. For the "smooth pursuit" portion of the test, DeRose held a pen twelve inches
away from appellant's face and, on a two-second count, slowly moved the pen out to
appellant's shoulders and back two times in order to look for involuntary twitches in each
eye. (Tr. at 18.) For the "maximum deviation" portion of the test, DeRose started with the
pen at appellant's nose and moved the pen to "slowly go out past his shoulders until my
arm is completely locked out," at which point he held the pen stationary at least four
seconds, but "usually * * * between 6 and 12 seconds," before testing the other side and
repeating the test a second time. (Tr. at 19.) For the "onset prior to 45 [degrees]" portion
of the test, DeRose returned his pen back to the starting position, then moved the pen
slowly to appellant's shoulders two times. (Tr. at 19.) Each time appellant's eyes would
twitch, DeRose would stop and hold the pen stationary for at least four seconds. In total,
DeRose testified that he observed appellant exhibit six out of six clues on the HGN test.
{¶ 8} With regard to the VGN test, DeRose testified that he again started the test
by holding his pen at appellant's nose and then lifted the pen vertically above appellant's
head, held it stationary for four seconds, and observed appellant's eyes for twitching.
According to DeRose, he did observe vertical gaze nystagmus and, while he conducted the
test, smelled a strong odor of alcohol coming from appellant's breath.
{¶ 9} DeRose then administered the walk-and-turn test in front of the cruiser,
which was a level, dry, and well-lit area. DeRose began by demonstrating the test and
instructing appellant on how to conduct the test. According to DeRose, appellant
exhibited two clues during the walk-and-turn test, including an improper turn and raising
his arms above six inches. DeRose could not remember how many clues are necessary to
indicate a blood alcohol level over the legal limit.
{¶ 10} After the walk-and-turn test, DeRose administered the one-leg-stand test.
DeRose described the one-leg-stand test as requiring appellant to stand with hands at his
sides, lifting either leg parallel to the ground, and counting during a thirty-second period
No. 16AP-65 4
until instructed to stop. According to DeRose, appellant exhibited four out of four clues
on the one-leg-stand test.
{¶ 11} At that point, DeRose decided to arrest appellant for OVI-impaired driving.
According to DeRose, his decision to arrest was based on the traffic violation, the odor,
the beer can in the console, the appearance of appellant's eyes, and the results of the field
sobriety tests. DeRose filled out a "BMV 2255" and explained the consequences of
refusing a test of the BMV 2255, and appellant refused to sign the form.1 (Tr. at 28.)
{¶ 12} On cross-examination regarding the marked lanes violation, DeRose
testified that "I think he swerved within his lane, and then he touched that left line"
maybe once or twice. (Tr. at 37.) Regarding the slow speed violation, DeRose testified
that it was possible that the reason appellant slowed down was because he saw DeRose
behind him from his rearview mirror. DeRose further testified that he should have kept
the open beer can from the console as evidence and agreed that he did not include in his
report information about the two cans on the driver's side floor or appellant's bloodshot
and glassy eyes or slurred speech.
{¶ 13} DeRose additionally testified on cross-examination that on the second part
of the HGN test, he knew he reached maximum deviation when his arm "locks out" and he
cannot go farther. (Tr. at 45.) For the third part of the HGN test, he agreed that after
viewing nystagmus, he did not hold the pen to confirm its presence and, therefore, did not
follow the instruction of the training manual. Regarding the walk-and-turn test, DeRose
testified that although he did not expressly say so on direct examination, he "probably
verbally" told appellant to keep his arms down at his side during the whole test and that
the video shows him telling appellant to put his arms down. (Tr. at 49.) DeRose
identified that two clues are necessary on the walk-and-turn test to indicate a blood
alcohol level over the legal limit.
{¶ 14} On redirect examination, DeRose testified that appellant "hit the brakes"
and decelerated suddenly prior to him activating his cruiser lights or otherwise signaling
for him to stop. (Tr. at 53.) DeRose agreed that the "blind curve" where appellant
decelerated made operating a vehicle slowly "more dangerous." (Tr. at 53.) Viewing the
1 A "U-10" police report referenced by appellant is not a part of the record on appeal.
No. 16AP-65 5
police cruiser video, DeRose testified that he believed appellant's car tires went over the
white marked line at the 35:30 mark of the video. Regarding this point, on re-cross,
DeRose testified:
He touched the line right before I let him up, and then right
there he crossed on.
***
I don't know if he was fully, completely over, but he definitely
was on –
***
– and mostly over. I mean, it's hard to tell from this ICOP,
which – When you're driving, you see better. You know, this
is more of a – the view is not as good as when you're actually
there. But you can see there where his tire is over the line. I
couldn't tell you hundred percent if he was on the other side,
but you can see that he's well over the line.
(Tr. at 55.)
{¶ 15} Appellee submitted without objection the police cruiser video, the NHTSA
Manual, and the BMV 2255 form as exhibits to the trial court. On the BMV 2255 form,
DeRose indicates that his "reasonable grounds for OVI * * * arrest before test were:
[s]werving in and out of lanes, rapid slow speed, strong odor of alcoholic beverage."
(State's Ex. No. 3, BMV 2255 Form at 1.) Both parties rested.
{¶ 16} On January 5, 2016, the trial court denied appellant's motion to suppress.
In doing so, the trial court found that, despite DeRose's "confusing" testimony regarding
where appellant's car crossed a marked line and redirect testimony that cars are supposed
to slow down when cruiser lights are activated, "[appellant's] driving was sufficient to
constitute reasonable suspicion for the stop." (Jan. 5, 2016 Mot. Hearing Entry at 2.)
Furthermore, the trial court concluded that DeRose was authorized to request appellant
to submit to field sobriety testing based on "indicia that alcohol may have affected
[appellant's] driving," specifically appellant's car touching the left lane line twice and
driving on the fog line, his slurred speech and bloodshot eyes, the strong odor of alcohol,
and the presence of a beer in the car. (Jan. 5, 2016 Mot. Hearing Entry at 3.) The trial
No. 16AP-65 6
court found all aspects of the HGN test to be inadmissible at trial, the video and testimony
on the walk-and-turn test to be admissible subject to the limitation that DeRose should
not be permitted to testify regarding how many clues must be present to predict certain
blood alcohol content, and all aspects of the one-leg-stand test to be admissible. The trial
court concluded that appellant's performance on the field sobriety tests, the sustained
odor of alcohol, and previously indicated indicia of OVI supported the conclusion that
probable cause existed for appellant's arrest.
{¶ 17} Following the trial court's decision on the motion, appellant entered a plea
of no contest to all charges. Appellant filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
{¶ 18} Appellant assigns the following as error:
1. The trial court erred in finding that there was reasonable
suspicion to stop [appellant].
2. The trial court erred in finding that probable cause existed
to place [appellant] under arrest for OVI.
III. STANDARD OF REVIEW
{¶ 19} "[A]ppellate review of a motion to suppress presents a mixed question of
law and fact." State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, ¶ 7, citing State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
When considering a motion to suppress, the trial court
assumes the role of trier of fact and is therefore in the best
position to resolve factual questions and evaluate the
credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d
357, 366, 582 N.E.2d 972. Consequently, an appellate court
must accept the trial court's findings of fact if they are
supported by competent, credible evidence. State v. Fanning
(1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting
these facts as true, the appellate court must then
independently determine, without deference to the conclusion
of the trial court, whether the facts satisfy the applicable legal
standard. State v. McNamara (1997), 124 Ohio App.3d 706,
707 N.E.2d 539.
Burnside at ¶ 8.
No. 16AP-65 7
IV. DISCUSSION
A. Reasonable Suspicion For the Stop
{¶ 20} Under his first assignment of error, appellant contends that DeRose did not
have a reasonable suspicion to stop appellant's car, and, therefore, the ensuing
investigation and arrest that followed the stop violated appellant's right against
unconstitutional searches and seizures. We disagree.
{¶ 21} In State v. Smith, 10th Dist. No. 13AP-592, 2014-Ohio-712, discretionary
appeal not allowed, 140 Ohio St.3d 1452, 2014-Ohio-4414, this court set forth the
appropriate analytical framework as follows:
It is well-established that stopping an automobile, thus
temporarily detaining its occupants, constitutes a seizure
under the Fourth Amendment to the U.S. Constitution. State
v. Dorsey, 10th Dist. No. 04AP-737, 2005-Ohio-2334, ¶ 17,
citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391,
59 L. Ed. 2d 660 (1979). A traffic stop is constitutionally
valid, however, if an officer has a reasonable and articulable
suspicion that a motorist has committed, is committing, or is
about to commit a crime, including a traffic violation. State v.
Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7, 894 N.E.2d
1204, citing Prouse at 663; State v. McCandlish, 10th Dist.
No. 11AP-913, 2012-Ohio-3765, ¶ 10 (observation of traffic
violation is enough for reasonable and articulable suspicion to
stop car); State v. Barker, 10th Dist. No. 11AP-170, 2011-
Ohio-5769, ¶ 12-13. "Reasonable suspicion entails some
minimal level of objective justification, 'that is, something
more than an inchoate and unparticularized suspicion or
"hunch," but less than the level of suspicion required for
probable cause.' " State v. Jones, 188 Ohio App.3d 628, 2010-
Ohio-2854, ¶ 17, 936 N.E.2d 529 (10th Dist.), quoting State v.
Jones, 70 Ohio App.3d 554, 556-57, 591 N.E.2d 810, 8
Anderson's Ohio App. Cas. 48 (2d Dist.1990). In evaluating
reasonable suspicion to support the propriety of a traffic stop,
a reviewing court must consider the totality of the
circumstances surrounding the stop as " 'viewed through the
eyes of the reasonable and prudent police officer on the scene
who must react to events as they unfold.' " McCandlish at ¶ 7,
quoting State v. Andrews, 57 Ohio St.3d 86, 87-88, 565
N.E.2d 1271 (1991).
Id. at ¶ 10.
No. 16AP-65 8
{¶ 22} Specifically, appellant argues that DeRose did not have a reasonable
suspicion to stop him because his driving "did not violate either [R.C.] 4511.22 or []
4511.33." (Appellant's Brief at 10.) At the outset, we emphasize that our inquiry here is
not whether these traffic violations actually occurred. State v. Hernandez, 10th Dist. No.
09AP-765, 2010-Ohio-2066, ¶ 15 ("These are two distinct analyses, as an officer must only
have a reasonable and articulable suspicion that a violation has occurred to conduct a
traffic stop; whether a violation actually occurred is not relevant."); State v. Holland, 10th
Dist. No. 13AP-790, 2014-Ohio-1964, ¶ 15-18 (finding that although the police cruiser
video may not prove beyond a reasonable doubt that a marked lane violation occurred, it
nonetheless supported the officer's reasonable suspicion to stop the driver); State v.
Percy, 7th Dist. No. 04 MA 265, 2006-Ohio-1285, ¶ 17 ("Observing a traffic violation is
more than reasonable suspicion; it is probable cause * * *. Thus, if an officer observes a
traffic violation, such as a violation of the slow speed statute, an investigatory stop is more
than valid."). Rather, the focus of this appeal is whether DeRose, considering the totality
of the circumstances, had a reasonable and articulable suspicion to stop appellant.
{¶ 23} Considering this focus, although appellant asserts that his driving did not
amount to a traffic violation, we note that, depending on the circumstances, erratic
driving that does not amount to a traffic violation may, nonetheless, support an officer's
reasonable suspicion to stop a driver. Dumas v. Registrar, Bur. of Motor Vehicles, 10th
Dist. No. 88AP-765 (May 4, 1989) (erratic driving "provided a reasonable basis to
investigate the cause of such driving although it may not have risen to the level of a
commission of a traffic offense"). Erratic driving may include weaving, " 'whether within
or outside one's lane,' " speeding, unusual braking, and slow speed depending on the
circumstances of the case. State v. Churchill, 6th Dist. No. WD-05-036, 2006-Ohio-3187,
¶ 9, quoting Montpelier v. Lyon, 6th Dist. No. WMS-86-16 (May 1, 1987) (erratic driving
included instances of weaving over the white line and applying the breaks for no apparent
reason with a police cruiser following). Findlay v. Jackson, 3d Dist. No. 5-14-02, 2014-
Ohio-5202, ¶ 30, citing State v. Evans, 127 Ohio App.3d 56 (11th Dist.1998), fn. 2.
{¶ 24} Appellant's first argument, regarding R.C. 4511.22, essentially asserts that
appellant was justified in slowing his vehicle because DeRose pulled "directly behind him
No. 16AP-65 9
and turned on his lights" and that no traffic on the road was impeded. (Appellant's Brief
at 12.)
{¶ 25} A traffic violation for "slow speed" is set forth in R.C. 4511.22, which states
"[n]o person shall stop or operate a vehicle * * * at such an unreasonably slow speed as to
impede or block the normal and reasonable movement of traffic, except when stopping or
reduced speed is necessary for safe operation or to comply with law." R.C. 4511.22(A).
Generally, slow speed alone or in combination with a late hour, does not amount to
reasonable suspicion for a traffic stop under R.C. 4511.22. State v. Bacher, 1st Dist. No. C-
050730, 2007-Ohio-727, ¶ 12-13, discretionary appeal not allowed, 114 Ohio St.3d 1480,
2007-Ohio-3699. Evidence must also show that the slow motorist impeded or blocked
traffic. Id. at ¶ 13.
{¶ 26} Whether a police cruiser itself constitutes impeded traffic for the purposes
of R.C. 4511.22 is a case-by-case, fact-based determination. For example, where an officer
behind a slow, but otherwise lawful, motorist can safely navigate around that motorist,
the officer is generally not considered to be "blocked" or "impeded" under R.C. 4511.22.
See, e.g., State v. Hagerty, 11th Dist. No. 2001-P-0083, 2002-Ohio-3379, ¶ 17, 18 (finding
officer was not impeded under R.C. 4511.22 where the officer was the only vehicle on the
road, he could have safely passed the motorist, and appellant's slow speed did not
constitute a safety hazard and was explainable under the circumstances). Conversely, in
circumstances where an officer drives directly behind a motorist with the cruiser light bar
off, and the motorist decelerates for no apparent reason in a manner requiring the officer
to "slow way down," reasonable suspicion under R.C. 4511.22(A) is supported. State v.
Gutierrez, 2d Dist. No. 2004-CA-17, 2004-Ohio-7248, ¶ 3, 6-8. Overall, "an officer's
suspicion is reasonable when a driver is traveling well below the speed limit and is
engaged in other unusual driving behavior that would suggest intoxication, such as
swerving, driving on the shoulder of the road, straddling a lane, crossing the center line,
or weaving." Bacher at ¶ 12.
{¶ 27} Here, we first note that appellant's assertion and the trial court's statement
of fact that DeRose's activation of his lights "caused [appellant's] vehicle to hit the brakes
and rapidly slow down" is not supported by competent, credible evidence. (Jan. 5, 2016
Mot. Hearing Entry at 2.) DeRose clearly testified that he pulled behind appellant,
No. 16AP-65 10
appellant suddenly decelerated, DeRose activated his cruiser light bar, and appellant
pulled over. Our review of the cruiser video confirms this order of events. The video
shows that the police cruiser pulls behind appellant at a speed of 66 miles per hour and
then must quickly slow to 44 miles per hour. (Police Cruiser Video at 35:52-36:14.) After
this deceleration, DeRose activates the cruiser's light bar. (Police Cruiser Video at 36:17.)
The record does not show that DeRose otherwise indicated an intention to pull appellant
over prior to activating his cruiser bar lights. Therefore, to the extent that appellant's
argument is based on a theory that appellant slowed his car to comply with being pulled
over by a police cruiser, we find the argument to be against the facts.
{¶ 28} Furthermore, we find the facts here more akin to Gutierrez than Hagerty.
DeRose's testimony describes a "sudden deceleration of speed" causing DeRose to "hit
[his] breaks fast so [he] didn't rear-end him." (Tr. at 12, 53.) DeRose's testimony
additionally establishes that appellant's slow speed occurred on a curve of a highway with
poor sightlines, and the video shows that at least two other cars were on the highway
behind and in close proximity to appellant and DeRose. These facts render appellant's
slow speed a public safety hazard, a factor not present in Hagerty. Therefore, under the
circumstances of this case, appellant's argument regarding the slow speed violation fails.
{¶ 29} Appellant's second argument specific to a lack of reasonable suspicion for a
marked lanes violation, pursuant to R.C. 4511.33, likewise fails. In pertinent part, R.C.
4511.33(A) provides:
Whenever any roadway has been divided into two or more
clearly marked lanes for traffic, or wherever within municipal
corporations traffic is lawfully moving in two or more
substantially continuous lines in the same direction, the
following rules apply:
(1) A vehicle * * * shall be driven, as nearly as is practicable,
entirely within a single lane or line of traffic and shall not be
moved from such lane or line until the driver has first
ascertained that such movement can be made with safety.
{¶ 30} Subject to limited exceptions, "R.C. 4511.33 requires a driver to drive a
vehicle entirely within a single lane of traffic." State v. Mays, 119 Ohio St.3d 406, 2008-
Ohio-4539, ¶ 16 (finding the traffic stop at issue constitutionally valid where the law-
No. 16AP-65 11
enforcement officer witnessed a motorist drift over the lane markings in violation of R.C.
4511.33, even without further evidence of erratic or unsafe driving). Therefore, "[w]hen
an officer observes a vehicle drifting back-and-forth across an edge line, the officer has a
reasonable and articulable suspicion that the driver has violated R.C. 4511.33." Id. Under
Ohio law, drifting across the white fog line supports a reasonable and articulable
suspicion that a motorist has violated R.C. 4511.33. Id. at ¶ 19.
{¶ 31} Specifically, appellant argues that Ohio law requires an officer to observe a
driver's tire over rather than on a marked lane to support a reasonable suspicion to stop
the driver, that the record here contains conflicting information, and that the video
confirms that appellant's tires do not cross any marked line.
{¶ 32} We disagree with appellant's assessment of the video and record. The trial
court's entry statement that DeRose observed appellant drive only "on to the fog line"
rather than over the fog line is not supported by competent and credible evidence.
(Jan. 5, 2016 Mot. Hearing Entry at 3.) DeRose did testify that he believed appellant went
over a marked line and later specified the 35:30 mark of the cruiser video as
demonstrating one such occurrence. DeRose indicates on the BMV 2255 form that
appellant "[s]werv[ed] in and out of lanes." (Emphasis added.) (State's Ex. No. 3, BMV
2255 Form at 1.) Importantly, the video at the specified time mark shows the right tires of
appellant's car cross over the solid white fog line as he proceeds in the far right lane to
pass DeRose and another vehicle. (Police Cruiser Video at 35:30-35:33.2) Appellant
stipulated that the video fairly depicts the events.
{¶ 33} Also contrary to appellant's position, DeRose's testimony about appellant
swerving left to touch a marked line does not undermine or conflict with his testimony
about the right fog line. In our opinion, the video depicts appellant swerving and nearly,
if not fully, crossing over the left line several times in addition to the aforementioned fog
line infringement. (Police Cruiser Video at 36:03, 36:17.) The facts of this case thus, at
least, implicate a marked lanes violation arising from both the left and right lane markers
2 Although appellee stated at oral argument that the car that went over the fog line was not appellant's car,
our independent review of the video shows definitively that the car crossing the solid white fog line in the far
right lane is the car ultimately stopped by DeRose.
No. 16AP-65 12
and, therefore, for DeRose to address both is to be expected. Considering all the above,
appellant's argument regarding the marked lanes violation lacks merit.
{¶ 34} Moreover, appellant's driving viewed as a whole, including using the right
lane to speed past a police cruiser late at night, swerving multiple times, and abruptly
slowing his speed, together constitute erratic driving warranting further investigation.
Dumas.
{¶ 35} Therefore, we conclude that, based on the totality of the circumstances of
this case, DeRose had reasonable suspicion to stop appellant's car.
{¶ 36} Accordingly, appellant's first assignment of error is overruled.
B. Probable Cause to Arrest
{¶ 37} Under his second assignment of error, appellant contends that DeRose did
not have probable cause to arrest appellant. Specifically, appellant submits that the only
proper evidence to be considered here, the odor of alcohol and failing the one-leg-stand
test, do not create probable cause for appellant's OVI arrest. We disagree.
{¶ 38} For a warrantless arrest to be constitutionally valid, an arresting officer
must have probable cause to make the arrest at that time. State v. Timson, 38 Ohio St.2d
122, 127 (1974). "To determine whether a police officer had probable cause to arrest an
individual for operating a vehicle while under the influence of alcohol, a court looks at
whether, at the moment of the arrest, the officer had sufficient information, from a
reasonably trustworthy source, of facts and circumstances which were sufficient to lead a
prudent person to believe the individual was operating a vehicle under the influence."
Columbus v. Shepherd, 10th Dist. No. 10AP-483, 2011-Ohio-3302, ¶ 29, discretionary
appeal not allowed, 130 Ohio St.3d 1439, 2011-Ohio-5883. See also State v. Homan, 89
Ohio St.3d 421, 427 (2000), superseded by statute on other grounds, State v. Boczar,
113 Ohio St.3d 148, 2007-Ohio-1251.
{¶ 39} "In determining whether probable cause to arrest existed, a reviewing court
should examine the 'totality of the circumstances.' " Columbus v. Weber, 10th Dist. No.
06AP-845, 2007-Ohio-5446, ¶ 9, quoting Illinois v. Gates, 462 U.S. 213, 230-31 (1983).
Thus, no one fact is dispositive. For example, an officer may still have probable cause to
arrest a driver for OVI without an admission of consuming alcohol. See, e.g., Weber at
¶ 2, 26-27. Likewise, "[p]robable cause to arrest does not have to be based, in whole or in
No. 16AP-65 13
part, upon a suspect's poor performance on one or more field sobriety tests." Columbus v.
Bickis, 10th Dist. No. 09AP-898, 2010-Ohio-3208, ¶ 21. See State v. Bulin, 7th Dist. No.
09 BE 27, 2011-Ohio-3398, ¶ 47. For example, this court has stated:
In finding that a defendant is under the influence of alcohol, a
trial court properly considers the defendant's appearance and
behavior, including his ability to perceive, make judgments,
coordinate movements, and safely operate a vehicle. State v.
Moine (1991), 72 Ohio App.3d 584, 586, 595 N.E.2d 524;
Newark v. Lucas (1988), 40 Ohio St.3d 100, 103-104, 532
N.E.2d 130. Further, an inability to follow traffic signs or laws
may indicate impaired driving skills. See State v. Orihel,
Athens App. No. 01 CA33, 2002 Ohio 411. The lack of
coordination is also an indication of being under the influence
and that one's ability to operate a motor vehicle is affected.
State v. Littleton, Fairfield App. No. 01 CA30, 2002 Ohio
2521. In addition, glassy, bloodshot eyes, lack of balance, and
a strong odor of alcohol emanating from a person may provide
sufficient evidence of intoxication. See State v. Gray,
Paulding App. No. 11-2000-16, 2001 Ohio 2349. Slurred
speech may also be considered evidence of intoxication. State
v. Davis (Apr. 22, 2002), Jackson App. No. 01CA12. Police
observation of a defendant's inability to keep his car in the
marked lane may also be considered evidence of impairment.
State v. Stuble (Aug. 10, 2001), Lake App. No. 2000- L-082,
2001 Ohio App. LEXIS 3530.
State v. Caldwell, 10th Dist. No. 02AP-576, 2003-Ohio-271, ¶ 26 (determining that even
not considering field sobriety tests, a driver's slurred, thick speech, failure to keep car in
marked lane, failure to properly signal, and unsteady and forced gait were sufficient
evidence of intoxication).
{¶ 40} Moreover, case law supports probable cause to arrest a driver for OVI-
impaired where the fact pattern couples a driver's failure on one field sobriety test with
other indicia of impairment such as traffic violations, a strong odor of alcohol, and
bloodshot and glassy eyes. State v. Perkins, 10th Dist. No. 07AP-924, 2008-Ohio-5060,
¶ 2, 31 (finding failure of HGN test, traffic infractions, strong odor of alcohol, and glassy
and bloodshot eyes sufficient to support probable cause to arrest even where driver was
alert and cooperative, did not slur speech, and did not admit to drinking); Weber at ¶ 2,
26-27 (finding failure of walk-and-turn test, strong odor of alcohol, and glassy and
No. 16AP-65 14
bloodshot eyes sufficient to support probable cause to arrest even where there were no
signs of erratic driving, no slurred speech, no admission to drinking, and driver was
cooperative).
{¶ 41} Here, as a preliminary issue, we disagree that our probable cause analysis is
confined to evidence of the odor of alcohol and the one-leg-stand test. The trial court's
findings of fact establish that, at a late hour, a police officer observed appellant's car
speeding past him, swerving several times, and rapidly decelerating. The trial court
additionally found that the police officer observed a beer in the car, encountered appellant
with slurred speech and glassy and bloodshot eyes, and smelled a strong odor of alcohol.
While appellant seems to take issue with us considering DeRose's testimony about the
beer can because the officer did not eventually inventory it, appellant does not provide us
with, and we do not independently find, authority requiring that we disregard this
testimony in considering probable cause. App.R. 16(A)(7) (requiring appellants to
support arguments with citation to authority). In addition, the trial court found, and
appellant does not dispute, that he failed one properly administered standard field
sobriety test. The above findings of fact by the trial court are supported by competent,
credible record evidence.
{¶ 42} These facts differentiate the present case from State v. Reed, 7th Dist. No.
05 BE 31, 2006-Ohio-7075, and State v. Gray, 10th Dist. No. 01AP-1251, 2002-Ohio-
4328, two cases appellant cites in support of his probable cause argument. Unlike this
case, in Reed, the officer did not observe any erratic driving or other indications to
correlate a "slight" odor of alcohol, an admission of one or two beers, and glassy,
bloodshot eyes late at night with impaired driving. Id. at ¶ 12. Likewise, in Gray, the
officer did not observe the defendant driving erratically, the odor of alcohol was not
strong, and the defendant exhibited normal speech and steadiness. Id. at ¶ 25. Instead,
we find the facts of this case more similar to Perkins and Weber, discussed above.
{¶ 43} Given the totality of the facts and circumstances surrounding the arrest in
this case, which include erratic driving late at night, the strong smell of alcohol on the
driver, the driver's glassy and bloodshot eyes, an open beer can in the car, and at least
one failed field sobriety test, DeRose had sufficient information to cause a prudent
No. 16AP-65 15
person to believe appellant was operating a vehicle under the influence. Therefore,
DeRose had probable cause to arrest appellant for OVI-impaired.
{¶ 44} Accordingly, appellant's second assignment of error is overruled.
V. CONCLUSION
{¶ 45} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Municipal Court.
Judgment affirmed.
TYACK, J., concurs.
HORTON, J., concurring in judgment only.
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