State v. Downey

Mary Ann Downey, defendant-appellant, was charged with two counts of operating a motor vehicle under the influence of alcohol, both from the same incident, as well as speeding. Her motion to suppress the results of a breathalyzer test on the basis that there was a lack of probable cause was overruled, following which she entered a plea of no contest to the "per se" violation (R.C. 4511.19 [A][1]). The trial court found her guilty and she appeals asserting as her sole assignment of error that there was no probable cause to arrest her for driving under the influence of alcohol.

At the suppression hearing, the parties stipulated that a state patrolman would testify that defendant's vehicle was clocked at sixty-six m.p.h. in a fifty-mile-per-hour zone. Upon approaching the vehicle, the officer noted a strong odor of an alcoholic beverage about defendant's person. She admitted to having consumed two beers. The officer then conducted field sobriety tests, on which it was stipulated that she did poorly. (Parenthetically, it is noted that in the sentencing phase the field sobriety tests were partially discussed as consisting of "a six on the gaze nystagmus" and quite a bit of wobbling, slurred speech, glassy eyes, etc.) She was placed under arrest for operating a motor vehicle while intoxicated ("OMVI") and she was transported to the police department, where, after being advised of her rights, she submitted to a breathalyzer test, the result of which was 0.143.

Defendant asserts that there was not probable cause to arrest her and to administer a breathalyzer test based solely upon evidence that she was driving sixty-six miles per hour in a fifty-mile-per-hour zone and that she had an odor of alcohol about her. However, the stipulated facts show that the arresting officer did not make the arrest based solely upon the speed of defendant's vehicle and the odor of the alcoholic beverage about defendant's person, but that he also investigated further and, only after a poor performance on the field sobriety tests, did he arrest her for OMVI and request that she take a breathalyzer test.

The arresting officer's conduct was proper in all respects. The speed of defendant's vehicle, coupled with the strong odor of alcoholic beverage on her breath, properly induced the arresting officer to investigate defendant's condition further before allowing her to proceed. The field sobriety tests confirmed the officer's suspicion that defendant was under the influence of alcohol and provided reasonable grounds to administer a breathalyzer test. This case is distinguishable from State v. Taylor (1981), 3 Ohio App.3d 197, 3 OBR 224, 444 N.E.2d 481, where the trial court's suppression of the breathalyzer and urine tests was affirmed on the basis that nominal speeding, coupled with the arresting officer's perception of the odor of alcohol and nothing more, does not provide the basis for probable cause to arrest the defendant for driving under the influence of alcohol. In this case, the field sobriety tests, concerning which there was a stipulation that defendant performed poorly, provided sufficient additional evidence to cause the officer to reasonably believe that the defendant was driving under the influence of alcohol. Moreover, the field sobriety tests apparently included observations which the arresting officer made or could have made before defendant even stepped outside the car, as those observations included glassy eyes and slurred speech. State v. Taylor, supra, does not stand for the proposition that an arresting officer cannot investigate further the probability of driving under the influence when the initial arrest is based upon defendant's exceeding the speed limit by sixteen miles per hour and having a strong odor of alcohol about her breath. The arresting officer is not prohibited from further field investigation and observations to assure that a driver who is possibly under the influence is not allowed to continue driving in that condition.

Appellant's assignment of error is overruled and the judgment of the trial court is affirmed.

Judgment affirmed.

WHITESIDE and BRYANT, JJ., concur.