State v. Bish
947 N.E.2d 257
Ohio Ct. App.2010Background
- Bish was stopped around 1:48 a.m. after committing traffic violations, including speeding and failing to signal a turn.
- Trooper Wolfe observed Bish with bloodshot, glassy eyes and a moderate odor of alcohol, and noted Bish’s slow responses to commands.
- Bish performed three standardized field sobriety tests (HGN, walk-and-turn, one-leg stand) and allegedly failed all three.
- Bish admitted drinking two to three beers since finishing work; she was arrested for OVI and taken to a post for a BAC Datamaster test, which yielded 0.122.
- Bish moved to suppress field sobriety and breathalyzer evidence, arguing improper stop, noncompliance with testing standards, and improper breathalyzer procedures.
- The trial court suppressed both the field sobriety and breathalyzer results, prompting the State to appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether field sobriety results were properly suppressed | Bish's motion alleged noncompliance with testing standards; state argues substantial compliance need not be shown without exact standards. | Bish’s motion raised specific noncompliance facts; state failed to prove substantial compliance. | Field sobriety results suppressed due to lack of evidence of applicable standards. |
| Whether breathalyzer results must be suppressed for lack of cited standards | ODH regulations are the law; strict citation not required for breathalyzer standards. | Trial court erred in requiring explicit citation to administrative code for breathalyzer; standards exist in code and manuals. | Breathalyzer results should not have been suppressed for lack of cited standards; BAC results admitted. |
| Whether there was probable cause to arrest Bish for OVI independent of field sobriety results | Probable cause could be shown by observed driving, odor, demeanor, and admission of drinking. | Suppression of field sobriety tests defeats basis for probable cause. | Totality of the circumstances established probable cause to arrest and impound the breathalyzer. |
| Whether the State met its burden to prove substantial compliance with field sobriety testing standards | State relies on trooper testimony; no explicit standards presented. | State did not present the applicable standards or manual as evidence. | State failed to prove substantial compliance; field sobriety results suppressed. |
| Whether the trial court erred in balancing suppression of field sobriety results with admissibility of breathalyzer results | Breathalyzer results were admissible; field sobriety results suppressed due to evidentiary standards. | Suppression of breathalyzer would be consistent with suppression of standards evidence. | Breathalyzer results reversed; trial court’s suppression of field sobriety results upheld; case remanded. |
Key Cases Cited
- State v. Schmitt, 101 Ohio St.3d 79 (2004-Ohio-37) (field sobriety tests may be admitted on substantial compliance)
- State v. Sunday, 9th Dist. No. 22917, 2006-Ohio-2984 (2006-Ohio-2984) (testing standards may derive from sources beyond NHTSA)
- State v. Phillips, 2010-Ohio-1547 (Ohio) (sufficient specificity shifts burden to State to prove substantial compliance)
- State v. Kale, 7th Dist. No. 08-CO-47, 2009-Ohio-6530 (2009-Ohio-6530) (boilerplate suppression motions insufficient to shift burden)
- State v. Broom, 2d Dist. No. 22468, 2008-Ohio-5160 (2008-Ohio-5160) (evidence of standards required for field sobriety testing)
- State v. Homan, 89 Ohio St.3d 421 (2000-Ohio-1) (probable cause based on totality of circumstances)
- State v. Cunningham, 7th Dist. No. 08 MO 8, 2009-Ohio-4394 (2009-Ohio-4394) (probable cause can accompany suppressed test results)