2023 Ohio 1643
Ohio Ct. App.2023Background
- Around midnight on Nov. 7, 2021, Cohen drove home from a bar; an officer observed speeding (over 80 mph) and weaving and initiated a stop.
- Officer Asbury testified Cohen smelled of alcohol, had red/watery eyes, slurred speech, and reacted slowly to lights; she admitted speeding and lane violations but denied drinking.
- Officer administered field sobriety tests: HGN showed 6 of 6 cues, walk-and-turn showed 3 of 8 cues, one-leg stand passed but missed a count; Cohen refused a breath test.
- Cohen was arrested and charged with OVI (R.C. 4511.19(A)(1)(a)), speeding, and marked-lane violation; after a bench trial she was convicted on all counts and sentenced (probation, fines, jail suspended, license suspension).
- On appeal Cohen argued the OVI conviction was against the manifest weight of the evidence, relying chiefly on the bodycam video and alternative explanations (fatigue, navigation, cold weather, clothing).
Issues
| Issue | State's Argument | Cohen's Argument | Held |
|---|---|---|---|
| Whether OVI conviction is against the manifest weight of the evidence | Officer observations and FST failures (HGN 6/6, walk-and-turn cues, odor, red/watery eyes, slurred speech) plus refusal to test support impairment | Bodycam does not show indicators; driving errors were due to fatigue/navigation; weather/clothing explain FST issues; refusal should not be decisive | Affirmed. Trial court credibility findings and totality of the evidence support conviction; refusal to test may be considered by trier of fact |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (Ohio 1997) (appellate court sits as a "thirteenth juror" in manifest-weight review)
- State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (Ohio Ct. App. 1983) (reversal on manifest weight only in exceptional cases where evidence heavily weighs against conviction)
- City of Maumee v. Anistik, 69 Ohio St.3d 339, 632 N.E.2d 497 (Ohio 1994) (defendant's refusal to submit to chemical test may be considered by the trier of fact)
- Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40 (Ohio 1968) (evidence of refusal to submit to chemical test may be used against defendant)