2005 Ohio 2915 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 3} Appellant filed a Motion to Suppress moving the court to suppress "the introduction of the evidence including any testimony of evidence regarding Defendant's `refusal' to submit to testing regarding alcohol content of Defendant's blood, breath, or urine, and any testimony or evidence regarding field sobriety tests."
{¶ 4} Judge Spurgeon, after the evidentiary hearing on Appellant's motion, ruled:
{¶ 5} `Officer Tharp failed to perform the HGN testing strict compliance with the NHSTA standards. He DID, however, perform the HGN test in substantial compliance with the NHSTA standards. Therefore, the HGN test results are admissible.
{¶ 6} "Officer Weiser performed the Walk and Turn test and the One Leg Stand test. Officer Weiser observed 3 clues of impairment on the Walk and Turn test and that the Defendant was unable to complete the one Leg Stand test. The Court finds that these tests were performed in substantial compliance with the NHSTA standards, therefore the tests are admissible.
{¶ 7} "The Court finds that the Officers had reasonable cause to stop the Defendant and probable cause to arrest the Defendant for the offense of operating a motor vehicle while under the influence of alcohol."
{¶ 8} As to Appellant's request to take a blood test as opposed to a breath test, the court determined:
{¶ 9} "The Court, sua sponte, finds that any testimony or other evidence, or inference concerning the Defendant's request for a blood test instead of a breath test will tend to confuse the jury. Accordingly, all testimony, evidence and inferences that the Defendant requested the Officer allow him to take a blood test instead of a breath test is suppressed."
{¶ 10} Appellant now appeals, raising four Assignments of Error:
{¶ 12} "II. The trial court erred by failing to suppress all evidence obtained by the police when the manifest weight of evidence showed there was a lack of probable cause to arrest the appellant for operating a vehicle under the influence of alcohol.
{¶ 13} "III. The trial court erred in failing to suppress or issue an order in limine, preventing the prosecution from introducing evidence of defendant's `refusal' to submit to breath testing. the trial court further erred in granting its own sua sponte motion to suppress evidence both relevant and favorable to defendant.
{¶ 14} "IV. The trial [sic] erred in permitting admission of field sobriety tests deemed to have been performed in `substantial' rather than `strict' compliance with generally accepted testing standards."
{¶ 16} 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),
{¶ 17} The standard of review for manifest weight and sufficiency of the evidence challenges is set forth in State v. Jenks (1981),
{¶ 18} "An appellate court=s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant=s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt."
{¶ 19} The weight to be given the evidence introduced at trial and the credibility of the witnesses are primarily for the trier of fact to determine. State v. Thomas (1982),
{¶ 20} The First Assignment of Error asserts error as to the failure by the State to establish that the field sobriety tests were conducted substantially in accordance with the NHTSA standards.
{¶ 21} State v. Homan (2000),
{¶ 22} Subsequently, R.C.
{¶ 23} "(b) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine, if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply:"
{¶ 24} The First Assignment asserts the failure of the State to establish substantial compliance with testing standards.
{¶ 25} As to the First Assignment of Error, Appellant argues lack of substantial compliance with NHTSA standards and explains extensively the holdings of the Ohio Supreme Court in State v. Homan (2000),
{¶ 26} Essentialy, Appellant is arguing that "substantial" compliance is almost "strict" compliance and that the officers are required to inquire as to medications, seizures, brain tumors, brain damage, inner ear disease and drug consumption.
{¶ 27} This type of questioning is not required even though medications or medical conditions can affect the test. Appellant is absolving himself of providing this information to this officer.
{¶ 28} We find nothing in the record of the suppression hearing to indicate error by the court as to substantial compliance with the NHTSA requirements.
{¶ 29} Before the court was a lack of smooth pursuit during the HGN test (Tr. 8). Appellant was asked if he had medical problems preventing testing. (Tr. 10). He did state that he had a few toes missing but couldn't remember which foot had the absence. (Tr. 21). He did not indicate the lack of toes prevented taking the tests. He was given the opportunity to stand on either foot. (Tr. 34).
{¶ 30} The testimony further indicated that Appellant did not walk heel to toe, that his arms were extended and that he swayed. (Tr. 10).
{¶ 31} He could not do the one-leg stand. (Tr. 11).
{¶ 32} He used his hands for balance. (Tr. 34).
{¶ 33} We reject the First Assignment of Error.
{¶ 34} The Second Assignment asserts lack of probable cause for the arrest.
{¶ 35} In order to respond, we must first examine the reasons for the stop of Appellant's vehicle.
{¶ 36} State of Ohio v. Nicholas K. Ryan, Jan. 28, 2005, Ohio App. 5 Dist., 2005-Ohio-555 states:
{¶ 37} "Before a law enforcement officer may stop a vehicle, the officer must have a reasonable suspicion, based upon specific and articulable facts, that an occupant is or has been engaged in criminal activity. State v. Gedeon (1992),
{¶ 38} As stated, the ordinance upon which Officer Weiser relied in making the traffic stop is the same as R.C.
{¶ 39} The testimony was that Appellant was observed at 2:41 a.m. driving without lights and going left of center. (Tr. 22-23). He had bloodshot and glazed eyes, an odor of alcohol, staggered and spoke with slurred speech. (Tr. 11, 32.)
{¶ 40} We find that a reasonable conclusion warranted the stopping of the vehicle and the arrest subsequent to the field tests.
{¶ 41} The record is sufficient to deny the Second Assignment of Error. {¶ 42} The Third Assignment concerns several errors alleged in the same Assignment.
{¶ 43} Testimony indicated that Appellant refused the breath test and expressed the desire to take a blood test. (Tr. 13). It was explained to him that he could have a blood test performed at his own expense but that only the breath test was being offered by the Officer. (Tr. 13).
{¶ 44} This comports with R.C.
{¶ 45} "The person tested may have a physician, a registered nurse, or a qualified technician, chemist, or phlebotomist of the person's own choosing administer a chemical test or tests, at the person's expense, in addition to any administered at the request of a law enforcement officer. The form to be read to the person to be tested, as required under section
{¶ 46} Appellant had no right to a choice of the type of chemical test available. R.C.
{¶ 47} "General Assembly has authority to establish conditions upon which licenses to operate motor vehicles are issued in state, and General Assembly can establish procedures and regulations suspending or revoking the statutorily granted privilege when interest of public safety or welfare is at stake."
{¶ 48} In the case sub judice, the refusal was clearly not conditional but apparently based solely upon Appellant's mistaken belief as to the right of test selection. As a result, the Court was clearly correct in overruling the motions in limine and suppression. The refusal therefore would have been admissible had this case been tried. City of Westervillev. Cunningham (1968),
{¶ 49} There is no Constitutional right to refuse to take a reasonably reliable test for intoxication. Schmerber v. State of California,
{¶ 50} We therefore find that the Third Assignment of Error is not well taken.
{¶ 52} We reject this contention.
{¶ 53} Article
{¶ 54} "(A)(1) In addition to all other powers vested by this article in the supreme court, the supreme court shall have general superintendence over all courts in the state. Such general superintending power shall be exercised by the chief justice in accordance with rules promulgated by the Supreme Court.
{¶ 55} "(2) The Supreme Court shall appoint an administrative director who shall assist the chief justice and who shall serve at the pleasure of the court. The compensation and duties of the administrative director shall be determined by the court.
{¶ 56} "(3) The chief justice or acting chief justice, as necessity arises, shall assign any judge of a court of common pleas or a division thereof temporarily to sit or hold court on any other court of common pleas or division thereof or any court of appeals or shall assign any judge of a court of appeals temporarily to sit or hold court on any other court of appeals or any court of common pleas or division thereof and upon such assignment said judge shall serve in such assigned capacity until the termination of the assignment. Rules may be adopted to provide for the temporary assignment of judges to sit and hold court in any court established by law.
{¶ 57} "(B) The Supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. Proposed rules shall be filed by the court, not later than the fifteenth day of January, with the clerk of each house of the General Assembly during a regular session thereof, and amendments to any such proposed rules may be so filed not later than the first day of May in that session. Such rules shall take effect on the following first day of July, unless prior to such day the General Assembly adopts a concurrent resolution of disapproval. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
{¶ 58} "Courts may adopt additional rules concerning local practice in their respective courts which are not inconsistent with the rules promulgated by the supreme court. The supreme court may make rules to require uniform record keeping for all courts of the state, and shall make rules governing the admission to the practice of law and discipline of persons so admitted.
{¶ 59} "(C) The chief justice of the Supreme Court or any judge of that court designated by him shall pass upon the disqualification of any judge of the courts of appeals or courts of common pleas or division thereof. Rules may be adopted to provide for the hearing of disqualification matters involving judges of courts established by law.
{¶ 60} Evidence Rules 101(A) and (C) 1 and 104(A) and (B) provide:
{¶ 61} "(A) Applicability These rules govern proceedings in the courts of this state, subject to the exceptions stated in division (C) of this rule.
{¶ 62} * * * *
{¶ 63} "(C) Exceptions These rules (other than with respect to privileges) do not apply in the following situations:
{¶ 64} "(1) Admissibility determinations. Determinations prerequisite to rulings on the admissibility of evidence when the issue is to be determined by the court under Evid. R. 104."
{¶ 65} Evid. R. 104 (A) and (B) states:
{¶ 66} "(A) Questions of admissibility generally Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (B). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
{¶ 67} "(B) Relevancy conditioned on fact When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition."
{¶ 68} In a well-reasoned opinion, the court in State v. Nutter held:
{¶ 69} "First, the express terms of Evid.R. 101(C)(1) specifically provide that the Rules of Evidence do not apply to determinations prerequisite to rulings on the admissibility of evidence when the issue is to be determined by the court under Evid.R. 104. Evid.R. 104(A) provides that preliminary questions concerning the admissibility of evidence shall be determined by the court, and in making its determination, it is not bound by the Rules of Evidence except those with respect to privileges. Thus, by its own terms, the Ohio Rules of Evidence are not applicable in suppression hearings. State v. Woodring (1989),
{¶ 70} "In considering this issue, the court has reviewed State v.Bresson (1990),
{¶ 71} "In making this determination, the court in Bresson stated: `The HGN test cannot be compared to other scientific tests, such as a polygraph examination, since no special equipment is required in its administration. Thus the only requirement prior to admission is the officer's knowledge of the test, his training, and his ability to interpret his observations. The admission of the results of the HGN test is no different from any other field sobriety test, such as finger-to-nose, walk-and-turn, or one-leg stand.' State v. Bresson,
supra,
{¶ 72} "In Bresson, the Ohio Supreme Court clearly rejected the line of case authority requiring expert testimony for HGN test results to be admitted. As no expert testimony is required for the admission of field sobriety tests, Evid.R. 702 does not have any application on this issue.
{¶ 73} "State v. Homan did not create a requirement for expert testimony for the admission of field sobriety tests. The Homan decision did, however, create a standard for the admission of field sobriety tests, that being a standard of strict compliance with the requirements of the NHTSA Manual."
{¶ 74} Appellant's fourth assignment of error is overruled.
{¶ 75} This cause is affirmed at Appellant's costs.
Boggins, P.J. Gwin, J. concurs separately and dissents Edwards, J. concurs separately
Concurrence Opinion
{¶ 82} I concur with the majority's analysis and disposition of appellant's first three assignments of error. However, while I concur with the majority's disposition of appellant's fourth assignment of error, I do so for a different reason.
{¶ 83} At issue in appellant's fourth assignment of error is whether R.C.
{¶ 84} The Ohio Supreme Court, in State v. Homan,
{¶ 85} While appellant argues that R.C.
{¶ 86} "Prior to the Supreme Court's decision in Homan, Ohio statutory law did not contain a provision regarding the admissibility of field sobriety test results. After the Homan decision, however, the Ohio General Assembly deliberated on the issue of field sobriety tests, and enacted Amended Substitute Senate Bill No. 163 (S.B.163) in 2002. S.B. 163 amended R.C.
{¶ 87} "The state claims that the amendment of R.C.
{¶ 88} "The Rules of Evidence contain provisions regarding the admissibility of certain types of specific evidence. Evid.R. 807, for example, provides a specific procedure for child testimony in abuse cases. However, we find that no specific Rule of Evidence pertinent to the standard of admissibility required for field sobriety tests has been adopted. The Homan court cited no specific evidentiary rule in its opinion. . . . "Although we are very cognizant of the judicial branch's exclusive authority under the Ohio Constitution to promulgate rules of procedure in its courts, the legislature's amendment of R.C.
{¶ 89} Based on the foregoing, I concur that R.C.
Dissenting Opinion
{¶ 76} I concur in the majority's disposition of Assignments of Error I through III. However, I respectfully dissent from the majority's disposition of appellant's Fourth Assignment of Error.
{¶ 77} A trial judge or jury is not suited, absent expert testimony, to determine whether a given deviation from the testing protocol found in the NHTSA manual renders the results of the HGN test unreliable. The potential arises that his method did not skew the results even though he did not follow the procedure. This creates a problem because the officer does not have a background in statistical analysis, nor the methodology utilized by NHTSA in determining the reliability of the HGN, or the effect of any deviation from standard protocol.
{¶ 78} The decisions in Schmitt and Homan make clear that absent strict compliance in the realm of any FST, such as the HGN, that is not a psychomotor test within the observations a layperson would make in assessing an individual's sobriety, and is not within a juror's common understanding, will not satisfy the threshold reliability standard for the admission of expert testimony pursuant to Evid. R. 702.
{¶ 79} Absent strict compliance with the testing protocol, the HGN test would not be "admissible under the Rules of Evidence." R.C.
{¶ 80} It is unlikely that the average juror has any conception or understanding of what nystagmus means. It is a scientific term probably not familiar to most persons. The relationship of nystagmus to the consumption of alcohol or drugs is a scientific principle. The manifestation of nystagmus under different circumstances is also a scientific theory that would not be known by the average person. HGN testing is based on a scientific principle not generally known by lay jurors. State v. DeLong, 5th Dist. No. 02CA35, 2002-Ohio-5289 at ¶ 59-60.
{¶ 81} Accordingly, for the reasons set forth in State v. Robinson, 5th Dist. No. 2004-CA-45, I would sustain appellant's Fourth Assignment of Error only as it pertains to the failure to administer the HGN test in substantial compliance with the NHTSA testing criteria.