State v. Tackett

[Cite as State v. Tackett, 2011-Ohio-6711.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 2011-CA-15
vs. : T.C. CASE NO. TRC 1004201
BRANDON TACKETT : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellee :
. . . . . . . . .
O P I N I O N
Rendered on the 23rd day of December, 2011.
. . . . . . . . .
Betsy A. Deeds, Atty. Reg. No. 0076747, Assistant Fairborn
Prosecutor, 510 West Main Street, Fairborn, OH 45324
Attorneys for Plaintiff-Appellee
Terry L. Lewis, Atty. Reg. No. 0010324, 111 W. First Street, Suite
1000, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Brandon Tackett, appeals from his conviction
and sentence for operating a motor vehicle while under the influence
of alcohol.
{¶ 2} On May 2, 2010, between 2:00 a.m. and 3:00 a.m., Ohio
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Highway Patrol Trooper D. Howard was patrolling westbound on
Colonel Glenn Highway when he observed Defendant’s vehicle back
out of a tavern parking lot onto Colonel Glenn Highway ahead of
him. While following behind Defendant’s vehicle, Trooper Howard
observed that Defendant’s vehicle traveled over the right fog line
by approximately one foot, then traveled over the lefthand double
yellow lines, drifted right, then traveled over the lefthand double
yellow lines, and then traveled right six to eight inches over
the fog line.
{¶ 3} Trooper Howard activated his overhead emergency lights
to initiate a traffic stop. In response, Defendant turned left
onto Old Yellow Springs Road and then turned right onto a side
road where he came to a stop. At the time of the stop, Defendant’s
vehicle remained in the right lane of traffic on the side road.
{¶ 4} Upon making contact with Defendant, Trooper Howard
noticed that Defendant’s speech was slurred, his eyes were glassy
and bloodshot, and that a strong odor of alcohol was coming from
Defendant’s breath. Trooper Howard also noticed that Defendant’s
head led the direction of his eyes. Based on these observations
and for his personal safety, Trooper Howard asked Defendant to
exit his vehicle. After Defendant exited his vehicle, Trooper
Howard asked Defendant if he had consumed any alcohol that night.
Defendant responded that he had consumed a couple of beers.
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{¶ 5} Trooper Howard asked Defendant to perform several field
sobriety tests and Defendant consented. Trooper Howard had
Defendant perform the horizontal gaze nystagmus test, the vertical
nystagmus test, the walk-and-turn test, and the one-leg stand test.
On the horizontal gaze nystagmus test, Trooper Howard detected
six out of a possible six clues and also observed vertical
nystagmus. On the walk-and-turn test, Trooper Howard detected
five clues out of a potential eight. On the one-leg stand test,
Trooper Howard observed two clues. Following the administration
of the field sobriety tests, Trooper Howard placed Defendant under
arrest, handcuffed him, and advised him of his Miranda rights.
Defendant subsequently refused administration of the chemical test
to determine his blood alcohol content.
{¶ 6} Defendant was charged with operating a vehicle while
under the influence in violation of R.C. 4511.19(A)(1)(a),
operating a vehicle while under the influence and refusing the
chemical test with a prior conviction within twenty years in
violation of R.C. 4511.19(A)(2), and failure to drive within marked
lanes in violation of R.C. 4511.33. Defendant filed a motion to
suppress evidence obtained during the traffic stop. On January
28, 2011, following two days of hearing, the trial court overruled
Defendant’s motion in part and granted it in part. Defendant
entered a plea of no contest to a violation of R.C. 4511.19(A)(2)
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and was sentenced on January 31, 2011. The remaining two charges
were dismissed.
{¶ 7} Defendant filed a timely notice of appeal.
ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT
APPELLANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED SUBSEQUENT TO
THE APPELLANT BEING ORDERED TO LEAVE HIS MOTOR VEHICLE.”
{¶ 9} In considering a motion to suppress, the trial court
assumes the role of trier of fact and is in the best position to
resolve factual questions and evaluate the credibility of the
witnesses. State v. Mills (1992), 62 Ohio St.3d 357.
Consequently, in reviewing a trial court’s decision on a motion
to suppress, an appellate court must accept the trial court’s
findings of fact if they are supported by competent, credible
evidence. State v. Curry (1994), 95 Ohio App.3d 93, 96, citing
State v. Schiebel (1990), 55 Ohio St.3d 71. An appellate court,
however, determines as a matter of law, without deferring to the
trial court’s conclusions, whether the law has been appropriately
applied to those facts. Id., citing State v. Claytor (1993),
85 Ohio App.3d 623.
{¶ 10} On appeal, Defendant does not contest that his initial
stop for traffic violations was lawful. Dayton v. Erickson, 76
Ohio St.3d 3, 1996-Ohio-431. Rather, Defendant claims that the
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police officer lacked the reasonable suspicion that he was driving
his vehicle while under the influence of alcohol necessary to
justify continuing his detention for further investigation for
driving under the influence by conducting field sobriety tests.
State v. Evans (1998), 127 Ohio App.3d 56.
{¶ 11} The trial court found that:
{¶ 12} “Trooper Howard had reasonable and articulable suspicion
to detain the defendant. At the time that the trooper requested
the defendant to exit the vehicle the troop [sic] knew of the
above-described driving, that he detected a strong odor of an
alcoholic beverage emitting from the defendant’s breath, that
defendant’s head led the direction of his eyes, that defendant’s
eyes were bloodshot and glassy, and that defendant’s speech was
slurred. Based upon these observations, the Court finds that the
trooper had reasonable and articulable suspicion to detain the
defendant further.” (Dkt. 95.)
{¶ 13} Defendant relies upon previous decisions of this court
wherein we stated that an odor of alcohol, or a slight odor 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 the administration of field
sobriety tests. State v. Spillers (Mar. 24, 2000), Darke App. No.
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1504; State v. Dixon (Dec. 1, 2000), Greene App. No. 2000-CA-30.
This court has, however, repeatedly held that a strong odor of
alcohol alone is 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.)
{¶ 14} Here, Defendant was stopped at approximately 2:00 a.m.,
after committing lane violations. When Trooper Howard made
contact with Defendant he noticed that Defendant’s eyes were glassy
and bloodshot and that a strong odor of alcohol emanated from
Defendant’s breath. Further, Defendant’s head led his eyes when
Trooper Howard spoke with Defendant. Trooper Howard testified
that this is common in individuals who have consumed alcohol.
Further, Trooper Howard testified that Defendant’s speech was
slurred. Defendant argues that the videotape of Defendant’s
traffic stop taken by the camera in Trooper Howard’s cruiser does
not support a finding that Defendant’s speech was slurred.
However, even assuming that Defendant’s speech was not slurred,
the remaining facts, considered together, are sufficient to give
rise to a reasonable suspicion of criminal behavior, OMVI, and
justified continuing Defendant’s detention in order to conduct
field sobriety tests. State v. Knox, Greene App. No. 2005CA74,
2006-Ohio-3039.
{¶ 15} Defendant also argues that Trooper Howard’s failure to
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execute all of the “PRE-EXIT INTERVIEW TECHNIQUES” outlined in
Section VI of the National Highway Traffic Safety Administration
Manual for DWI Detection and Standardized Field Sobriety Testing
(“NHTSA Manual”) precludes a finding that Trooper Howard had
sufficient, reasonable suspicion to continue the detention of
Defendant and order him out of his vehicle. We disagree.
{¶ 16} “[P]olice officers may require that the occupants of
a motor vehicle exit the vehicle pursuant to a stop for a traffic
violation because of the legitimate safety concerns of both the
officer and the occupants.” State v. Brock, Montgomery App. No.
23665, 2010-Ohio-5885, at ¶17 (citations omitted). As the United
States Supreme Court has explained:
{¶ 17} “The hazard of accidental injury from passing traffic
to an officer standing on the driver’s side of the vehicle may
also be appreciable in some situations. Rather, than conversing
while standing exposed to moving traffic, the officer prudently
may prefer to ask the driver of the vehicle to step out of the
car and off onto the shoulder of the road where the inquiry may
be pursued with greater safety to both.” Pennsylvania v. Mimms
(1977), 443 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331.
{¶ 18} Further, under the heading “THE EXIT SEQUENCE” in Section
VI-6, the NTHSA Manual states, in part: “Your decision to instruct
the driver to step from the vehicle usually is made after you have
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developed a suspicion that the driver is impaired.[] Except,
however, that you may instruct a suspect to exit the vehicle as
a means of ensuring your own safety. Safety considerations take
precedence over all other considerations.”
{¶ 19} Trooper Howard testified that he had Defendant exit his
vehicle because his car was parked in the right lane of the roadway
and the safety of Trooper Howard would be compromised if he
continued to question Defendant from outside the driver’s side
window. (November 2, 2010 Transcript, p. 86-87.) Once Defendant
exited the vehicle, Trooper Howard walked him to the front of the
patrol car. (October 11, 2010 Transcript, p. 25.) Pursuant to
Mimms and Section VI-6 of the NHTSA Manual, the safety of Officer
Howard was a sufficient reason, in and of itself, to order Defendant
out of his vehicle.
{¶ 20} Defendant concedes in his brief that an officer need
not follow all of the procedures set forth in the NHTSA Manual.
However, Defendant argues that his field sobriety tests should
be suppressed from evidence because Trooper Howard did not have
sufficient reasonable suspicion to further detain Defendant to
administer the field sobriety tests. Defendant does not identify
any section of the NHTSA Manual which is mandatory that Trooper
Howard did not follow. Neither does Defendant identify any section
of the Revised Code that Trooper Howard violated when he decided
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to have Defendant exit the vehicle.
{¶ 21} R.C. 4511.19(D)(4) addresses situations in which the
results of field sobriety tests may be used in criminal proceedings.
R.C. 4511.19(D)(4) provides, in pertinent part:
{¶ 22} “(b) In any criminal prosecution or juvenile court
proceeding for a violation of division (A) or (B) of this section,
* * * if a law enforcement officer has administered a field sobriety
test to the operator of the vehicle involved in the violation and
if it is shown by clear and convincing evidence that the officer
administered the test in substantial compliance with the testing
standards for any reliable, credible, and generally accepted field
sobriety tests that were in effect at the time the tests were
administered, including, but not limited to, any testing standards
then in effect that were set by the national highway traffic safety
administration, all of the following apply:
{¶ 23} “(i) The officer may testify concerning the results of
the field sobriety test so administered.
{¶ 24} “(ii) The prosecution may introduce the results of the
field sobriety test so administered as evidence in any proceedings
in the criminal prosecution or juvenile court proceeding.
{¶ 25} “(iii) If testimony is presented or evidence is
introduced under division (D)(4)(b)(I) or (ii) of this section
and if the testimony or evidence is admissible under the Rules
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of Evidence, the court shall admit the testimony or evidence and
the trier of fact shall give it whatever weight the trier of fact
considers to be appropriate.
{¶ 26} “(c) Division (D)(4)(b) of this section does not limit
or preclude a court, in its determination of whether the arrest
of a person was supported by probable cause or its determination
of any other matter in a criminal prosecution or juvenile court
proceeding of a type described in that division, from considering
evidence or testimony that is not otherwise disallowed by division
(D)(4)(b) of this section.”
{¶ 27} R.C. 4511.19(D)(4)(b) and (c) are “a codification of
the Ohio Supreme Court’s holding in State v. Schmitt, 101 Ohio
St.3d 79, 801 N.E.2d 446, 2004-Ohio-37, which held that even if
the actual test results of nonscientific standard field sobriety
tests were deemed inadmissible, an officer may nevertheless testify
as a lay witness, regarding observations made during a defendant’s
performance of these tests and the court may rely on this testimony
in making its probable cause determination.” State v. Lothes,
Portage App. No. 2006-P-0086, 2007-Ohio-4226, ¶47, citing Schmitt,
at ¶13-16.
{¶ 28} As the Supreme Court explained in Schmitt, at ¶14:
{¶ 29} “We see no reason to treat an officer’s testimony
regarding the defendant’s performance on a nonscientific field
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sobriety test any differently from his testimony addressing other
indicia of intoxication, such as slurred speech, bloodshot eyes,
and odor of alcohol. In all of these cases, the officer is
testifying about his perceptions of the witness, and such testimony
helps resolve the issue of whether the defendant was driving while
intoxicated.”
{¶ 30} Here, Trooper Howard testified regarding his
observations of Defendant that led to his decision to further detain
Defendant to conduct field sobriety tests. This testimony is
admissible and supports the trial court’s finding that Trooper
Howard had a reasonable and articulable suspicion of driving under
the influence to justify his decision to have Defendant exit the
vehicle and administer field sobriety tests.
{¶ 31} The assignment of error is overruled. The judgment of
the trial court will be affirmed.
FAIN, J., And HALL, J., concur.
Copies mailed to:
Betsy A. Deeds, Esq.
Terry L. Lewis, Esq.
Hon. Beth W. Root