2021 Ohio 3503
Ohio Ct. App.2021Background
- On Jan. 4, 2020, Deputy Pennington stopped Forrest Aiken after observing traffic violations and erratic driving (running a stop sign, squealing tires, veering off the road and partially into a lane). Video of the encounter was admitted at the suppression hearing.
- At the initial contact Pennington detected an odor of alcohol and observed Aiken’s glossy eyes; Aiken initially denied drinking but later admitted consuming alcohol four hours earlier.
- Pennington, trained in NHTSA field sobriety tests, administered HGN, walk-and-turn, and one-leg-stand; he testified he followed NHTSA procedures and observed clues of impairment.
- Pennington arrested Aiken, read Miranda, transported him to the station, accompanied him to the restroom, and then obtained two Intoxilyzer 8000 breath samples (.131 and .126).
- Aiken moved to suppress, arguing the field sobriety tests were not conducted in strict compliance with the NHTSA manual (so they could not establish probable cause) and that the breath test violated the 20-minute observation requirement.
- The trial court denied suppression (finding substantial compliance with NHTSA and sufficient probable cause); Aiken pled no contest and was sentenced to two years community control. This appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause to arrest for OVI | Aiken: arrest lacked probable cause because FSTs were improperly conducted and their results cannot support arrest | State: probable cause existed from totality of circumstances (erratic driving, odor of alcohol, glossy eyes), independent of FST results | Court: Probable cause existed based on erratic driving + odor + glossy eyes; FSTs not required for probable cause |
| Admissibility of field sobriety test results (NHTSA compliance) | Aiken: officer failed to follow NHTSA procedures (finger vs. pen, distance, line for walk-and-turn, questioning about disabilities) so results inadmissible | State: officer was trained, explained and demonstrated tests, and substantially complied with NHTSA procedures | Court: Results admissible — substantial, not strict, compliance was satisfied |
| Admissibility of breath test (20-minute observation) | Aiken: officer did not properly observe Aiken for 20 minutes before Intoxilyzer test | State: officer continuously observed Aiken, accompanied him to restroom, testified Aiken did not ingest anything; >20 minutes elapsed before test | Court: No merit to challenge — state showed sufficient observation to infer no ingestion during 20-min period; breath results admissible |
Key Cases Cited
- State v. Wesson, 137 Ohio St.3d 309 (2013) (suppression review is mixed question of law and fact; appellate court accepts trial court’s factual findings if supported by competent, credible evidence)
- State v. Burnside, 100 Ohio St.3d 152 (2003) (standard for reviewing motions to suppress and reliance on trial court factfindings)
- State v. Homan, 89 Ohio St.3d 421 (2000) (probable cause to arrest for OVI requires facts sufficient to lead a prudent person to believe driving under the influence)
- State v. Codeluppi, 139 Ohio St.3d 165 (2014) (field sobriety test results admissible only if officer shows clear and convincing evidence of substantial compliance with NHTSA guidelines)
- State v. Boczar, 113 Ohio St.3d 148 (2007) (foundation for admitting FST results must include the officer’s training and the technique used)