DocketNumber: Case No. 00CA-47.
Judges: <italic>EDWARDS, J.</italic>
Filed Date: 2/26/2001
Status: Non-Precedential
Modified Date: 4/18/2021
OPINION
Defendant-appellant Lisa M. Barrett appeals her conviction and sentence from the Licking County Municipal Court on one count of driving while under the influence, in violation of R.C.
On May 4, 2000, the matter came to trial. Upon deliberation, the jury found appellant guilty of DUI, in violation of R.C.
Appellant was sentenced that same day to 30 days in jail with 24 of those days suspended. Appellant was fined $300.00, plus court costs, and appellant's drivers license was suspended for one year. Finally, appellant was placed on probation for one year. On June 30, 2000, the trial court granted a motion by appellant for a stay of execution of sentence.
It is from the conviction and sentence that appellant prosecutes this appeal, raising the following assignments of error:
ASSIGNMENT OF ERROR I
ASSIGNMENT OF ERROR IITHE TRIAL COURT ERRED BY FAILING TO DISMISS THE CHARGE AGAINST DEFENDANT OF DRIVING UNDER THE INFLUENCE OF ALCOHOL UNDER ORC
4511.19 (A)(1) FOR LACK OF PROBABLE CAUSE.
ASSIGNMENT OF ERROR IIITHE TRIAL COURT ERRED BY ALLOWING TROOPER DRAY TO GIVE OPINION TESTIMONY AS TO WHETHER DEFENDANT WAS UNDER THE INFLUENCE OF ALCOHOL.
THE JURY'S VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW.
There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. See, State v. Fanning (1982),
Appellant asserts that the Trooper did not have reasonable and articulable suspicion leading to probable cause to arrest appellant for driving under the influence of alcohol. Once an officer has stopped a vehicle for a traffic offense and begins the process of obtaining the driver's license and registration, the officer may investigate the driver for DUI if the officer has an articulable and reasonable suspicion that the driver may be intoxicated. State v. Evans (1998),
As to probable cause, the Ohio Supreme Court recently addressed the issue as it relates to an arrest for driving under the influence, in the case of State v. Homan (2000),
In determining whether the police had probable cause to arrest an individual for DUI, we consider whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence. [Citations omitted.] In making this determination, we will examine the `totality' of facts and circumstances surrounding the arrest. [Citations omitted.] Id. at 427.
We conclude that Trooper Dray had reasonable, articulable suspicion to believe that appellant was driving under the influence and, therein to investigate. First, Trooper Dray testified that he smelled alcohol upon approaching appellant's vehicle. The smell of alcohol became "even stronger once appellant was sitting inside the Trooper's vehicle." Appellant's face was flushed and her eyes were glassy. Appellant admitted to drinking alcohol.
At that point, Trooper Dray had an articulable, reasonable suspicion to investigate the DUI. Trooper Dray then administered several field sobriety tests which appellant performed poorly. Appellant failed the horizontal gaze nystagmus test, displaying six out of six clues of impairment.4 At that point, Trooper Dray administered the portable breathalyzer test.5 Appellant failed the test.
Trooper Dray then asked appellant to perform the one leg stand. However, she did poorly, placing her foot down a total of eight times. Trooper Dray testified that appellant swayed back and forth while he explained the test to appellant and continued to sway while taking the test. Trooper Dray then administered the walk and turn test. Appellant did not follow the Trooper's instructions, stepped off of the line she was instructed to follow several times and lost her balance while turning. We find, based upon the totality of facts and circumstances, Trooper Dray had probable cause to arrest appellant for DUI.
Appellant contends that while appellant may have displayed some indicia of alcohol consumption, Trooper Dray had no evidence to suggest that appellant's driving was impaired. Appellant argues that Trooper Dray acknowledged that appellant did not have slurred speech, was dressed and groomed well, did not have problems retrieving her driver's license and was cooperative with the Trooper. Further, for the short distance Trooper Dray followed appellant, although appellant was speeding, her driving was not erratic. However, observation of impaired driving is not necessarily a prerequisite to a conviction for DUI. See State v.Whitaker (Aug. 9, 2000), Licking App. No. 99CA140, unreported (citingState v. Lewis (1999),
As discussed above, when examining the totality of the circumstances, we find that the trial court's decision that there were reasonable and articulable suspicion to investigate and probable cause to arrest appellant for driving while under the influence was not error. While appellant may not have displayed every possible indication of intoxication and there are always possible explanations for certain behavior and characteristics other than intoxication, we find that there were sufficient indications of intoxication to justify Trooper Dray's actions.
Appellant's first assignment of error is overruled.
Evid.R. 701, which governs the admissibility of lay opinion testimony, provides as follows:
"If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue."
Lay opinion testimony is admissible if it meets the two-part test set out in Evid.R. 701. See Tomlinson v. Cincinnati (1983),
It has long been the rule in Ohio that sobriety or lack thereof is a proper subject for lay opinion testimony. "When it appears that an individual in all probability has sufficient experience to express an opinion as to whether or not a man is drunk or sober and opportunity to observe him he may do so without further explanation." Columbus v.Blanchard (1963),
Prior to giving his opinion, Trooper Dray testified that he had eight years of experience with the State Highway Patrol and extensive experience with DUI arrests. When Trooper Dray stopped appellant for speeding and no license plate light, he noted that appellant's eyes were glassy and bloodshot. Trooper Dray detected the smell of alcohol upon approaching appellant's vehicle, which became "even stronger" upon appellant sitting in the Trooper's vehicle. Appellant then failed the field sobriety tests administered. During the traffic stop and arrest, Trooper Dray had an opportunity to observe appellant's demeanor.
In light of Trooper Dray's observations and experience, his opinion was rationally based upon his perception and was helpful to a clear understanding of his testimony and to a determination of a fact in issue, i.e. whether appellant was under the influence of alcohol.6
His opinion concerning appellant's physical condition was an "intelligent and reasonable conclusion" based on the facts presented. See AmericanLouisiana Pipe Line v. Kennerk (1957),
Therefore, because Trooper Dray's testimony was admissible as lay testimony, the trial court's decision to admit Trooper Dray's testimony into evidence was not an abuse of discretion. Accordingly, appellant's second assignment of error is overruled.
In reviewing whether a conviction is against the manifest weight of the evidence, our standard of review is stated as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin (1983),
Trooper Dray testified that appellant was operating a motor vehicle. Trooper Dray noted that appellant smelled of alcohol, had glassy eyes and a flushed face and admitted drinking alcohol. Thereafter, appellant failed the field sobriety tests indicating a lack of coordination and impaired mental processes, i.e. that appellant was "under the influence." In Trooper Dray's opinion, appellant was under the influence of alcohol.
Appellant argues that the field sobriety tests were not administered in strict compliance with protocols and, as such, do not provide sufficient evidence upon which to support the conviction. Appellant bases her argument upon State v. Homan (2000),
The State bears the burden of proof, including the burden of going forward with evidence, upon a proper motion to suppress by a defendant.City of Xenia v. Wallace (1988),
In the case sub judice appellant's Motion to Suppress did not contain an allegation that the field sobriety tests were not administered in strict compliance with standardized testing procedures nor allege facts to show any noncompliance. The closest appellant came to challenging the field sobriety tests in his Motion to Suppress was when he generally alleged that "[t]here was no lawful cause to stop the defendant, detain the defendant, and/or probable cause to arrest the defendant with a warrant." In the memorandum in support of the Motion to Suppress, appellant stated, in pertinent part:
The provisions of R.C. 4511.19.1 are not applicable unless the defendant was validly arrested by an officer having reasonable ground to believe the defendant was operating a vehicle while under the influence of alcohol and/or drugs of abuse and was properly advised of the Ohio Implied Consent Provisions. . . . Further, it will be shown that there was no probable cause in this matter for the officer to believe that the accused was under the influence of alcohol necessitating transportation to the police department for a test. . . .
We find appellant's general assertion that there was no probable cause to arrest appellant did not provide the requisite legal and factual basis necessary to put the prosecutor and the court on notice as to this issue as raised on appeal. Further, we note that appellant failed to raise this issue at the evidentiary hearing on the Motion to Suppress. SeeCity of Xenia v. Wallace, supra. at 221 (Ohio Supreme Court found defendant met the requirement that he place the prosecution on notice as to the grounds upon which he challenged the administration of the breathalyzer test at the evidentiary hearing itself). Therefore, we find the trial court did not improperly admit the results of the field sobriety test nor was it error when the results of the test were relied upon to find probable cause or guilt.
Therefore, we find the trial court did not improperly admit the results of the field sobriety tests nor was it error when the results of the test were relied upon to find probable cause or guilt.
Therefore, we cannot find that the jury lost their way nor that it created a manifest miscarriage of justice.
We find the conviction was not against the manifest weight of the evidence. Appellant's third assignment of error is overruled.
The judgment of the Licking County Municipal Court is affirmed.
Edwards, J., Gwin, P.J. and Wise, J. concurs.
For the reasons stated in the Memorandum-Opinion on file, the judgment of the Licking County Municipal Court is affirmed. Costs to appellant.