State v. AppelhansState v. Appelhans
Corey J. Speweik, for appellant.
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SINGER, J.
{¶ 1} Appellant, Erich Appelhans, appeals from his conviction in the Bowling Green Municipal Court for driving under the influence of alcohol, a violation of
{¶ 3} “I. The trial court erred in finding reasonable, articulable suspicion existed to stop appellant, thereby denying appellant‘s right against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution.
{¶ 4} “II. The trial court erred in finding that reasonable, articulable suspicion existed to investigate appellant further for driving under the influence thereby denying appellant‘s rights against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Article I, section 14 of the Ohio Constitution.
{¶ 5} “III. The trial court erred by finding that probable cause existed to arrest appellant, thereby denying appellant‘s rights against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Article I, section 14 of the Ohio Constitution.”
{¶ 6} In his first assignment of error, appellant contends that the court erred in denying his motion to suppress evidence in that the arresting officer did not have reasonable suspicion to make an investigative stop.
{¶ 8} The investigative stop exception to the Fourth Amendment allows “a police officer to stop an individual, provided the officer has the requisite reasonable suspicion, based upon specific and articulable facts, that a crime has occurred or is imminent.” State v. Molk, 11th Dist. No. 2001-L-146, 2002-Ohio-6926, ¶ 15, citing State v. Gedeon (1992), 81 Ohio App.3d 617, 618, citing Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. See, also, Maumee v. Weisner (1999), 87 Ohio St.3d 295, 296.
{¶ 9} Officer Edward Zeman of the Pemberville Ohio Police Department testified that he was on duty the early morning hours of November 7, 2009, when he observed a
{¶ 10}
{¶ 11} “(A)(1) Whenever any person driving a vehicle or trackless trolley approaches a railroad grade crossing, the person shall stop within fifty feet, but not less than fifteen feet from the nearest rail of the railroad if any of the following circumstances exist at the crossing:
{¶ 12} “(a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a train.
{¶ 13} “* * *
{¶ 14} “(C) Whoever violates this section is guilty of a misdemeanor of the fourth degree.”
{¶ 15} As Officer Zeman testified, he observed appellant‘s car on the tracks as the warning lights were flashing, we conclude that he had a reasonable, articulable suspicion to stop appellant. Appellant‘s first assignment of error is found not well-taken.
{¶ 16} In his second assignment of error, appellant contends that Officer Zeman lacked specific and articulable facts to further detain him for purposes of administering the portable breathalyzer and field sobriety tests.
{¶ 18} Once an officer stops a vehicle for a traffic offense and begins the process of obtaining the offender‘s license and registration, the officer may then proceed to investigate the detainee for operating a vehicle under the influence if the officer has a reasonable suspicion that the detainee may be intoxicated based on specific and articulable facts, such as where there are clear symptoms that the detainee is under the influence. State v. Evans (1998), 127 Ohio App.3d 56, 62-63.
{¶ 19} Circumstances from which an officer may derive a reasonable, articulable suspicion that the detained driver was operating the vehicle while under the influence include, but are not limited to: the time and day of the stop, any indicia of erratic driving before the stop that may indicate a lack of coordination, the condition of the suspect‘s eyes, impairments of the suspect‘s ability to speak, and the odor of alcohol coming from the interior of the car. Id. at 63.
{¶ 21} In his third assignment of error, appellant contends that Officer Zeman lacked probable cause to arrest appellant for driving under the influence of alcohol.
{¶ 22} “Probable cause exists where there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that an individual is guilty of the offense with which he or she is charged.” State v. Medcalf (1996), 111 Ohio App.3d 142, 147.
{¶ 23} The trial court excluded testimony relating to the scoring of the field sobriety tests finding that the tests were not conducted in substantial compliance with the National Highway Transportation Safety Administration (NHTSA) testing standards. Nevertheless, even when the results of field sobriety testing are suppressed, an officer may testify at trial, pursuant to Evid.R. 701, regarding his layman‘s observations made
{¶ 24} The fact that Officer Zeman witnessed appellant commit a traffic violation, the appearance of appellant‘s eyes, appellant‘s sluggish demeanor, the smell of alcohol from appellant‘s breath, his admission that he had consumed alcohol and the fact that Zeman testified that appellant was unable to keep his balance when performing the field sobriety test, all provided Officer Zeman the requisite probable cause to arrest appellant for driving while under the influence of alcohol. Appellant‘s third assignment of error is found not well-taken.
{¶ 25} On consideration whereof, the judgment of the Bowling Green Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
WD-10-026
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J. _______________________________
JUDGE
Mark L. Pietrykowski, J. _______________________________
Arlene Singer, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.