State v. BrabantState v. Brabant
Lawrence R. Fisse, 34 North Third Streеt, Batavia, Ohio 45103, for defendant-appellant
O P I N I O N
POWELL, J.
{¶1} Defendant-appellant, Donnie R. Brabant, appeals the judgment of the Clermont County Municipal Court denying his appeal of an administrative liсense suspension (ALS) imposed after his arrest for driving under the influence of alcohol. For the reasons that follow, we affirm.
{¶2} On March 6, 2010 at approximately 11:35 P.M., Officer Michael Shimko of the Ohio Statе Highway Patrol was dispatched to a single-vehicle crash on
{¶3} Between 1:00 and 1:30 A.M. on March 7, 2010, Officer Shimko arrived at appellant‘s residence to find appellant in a heavily intoxicated condition. At that time, Officer Shimko read appellant the contents of the Bureau of Motor Vehicles Form 2255, which included the consequences of refusing to submit to a blood, breath or urine test. Officer Shimko then requested appellant tо perform a breath test, but appellant refused, based on advice from his attorney.
{¶4} As a result of the events occurring on March 6 and early March 7, 2010, appellant was placed under аn ALS. Appellant appealed the ALS pursuant to
{¶5} Appellant subsequently filed the instant appeal, asserting a single assignment of error for review:
{¶6} “THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT‘S APPEAL FROM AN ADMINISTRATIVE LICENSE SUSPENSION IMPOSED FOR REFUSING A REQUESTED CHEMICAL BREATH TEST SUBSEQUENT TO HIS ARREST FOR OPERATING A VEHICLE UNDER THE INFLUENCE OF ALCOHOL.”
{¶8} Pursuant to
{¶9} Appellant argues that because the state did not establish (1) the precise time of the crash, and (2) appellant‘s condition at the time of the crash, it failed to prove Officer Shimko had a reasonable belief that appellant was under the influence оf alcohol at the time of the crash. However, our review of the record reveals sufficient evidence to support the trial court‘s conclusion that Officer Shimko had reasonablе grounds to believe appellant crashed the vehicle while under the influence of alcohol.
{¶10} After leaving the crash site, Officer Shimko encountered appellant at his residencе between 1:00 and 1:30 A.M., at which time Officer Shimko noticed a strong odor of alcohol coming from appellant‘s person, along with his bloodshot eyes and slurred speech. After reading appеllant Miranda warnings, Officer Shimko asked appellant whether he drove the vehicle at the time of the crash. At first, appellant denied driving the vehicle at all that evening. Eventually, appellant admittеd to driving at the time of the crash, and explained that he left the scene because he was “scared.”
{¶11} When Officer Shimko asked appellаnt if he consumed alcohol prior to the crash, appellant responded he consumed only half of one beer, but that he drank vodka upon returning to his residence after the crash. When Officer Shimko asked appellant to produce the vodka bottle, appellant stated he instead drank Bacardi after the crash, but failed to produce either bottle from the residence. As a result, Officer Shimko testified he did not believe appellant‘s explanation for his intoxication, based on his “evasive” behavior and refusal to submit to field sobriety tests. See, e.g., State v. Arnold (Sept. 7, 1999), Butler App. No. CA99-02-026, at 5 (refusal to take field sobriety tests can be a factor in reasonable grounds evaluation). Moreover, while appellant‘s mother testified appellant drank alcohol when he returned home, she admitted she did not witness appellant consuming any such beverages.
{¶12} In the case at bar, despite appellant‘s claim that his intoxication occurred after the crash, we find thе abundant inconsistencies in his story, coupled with Officer Shimko‘s training and experience, provided Officer Shimko with reasonable grounds to believe appellant violated
{¶13} Given the significant circumstantial evidence that appellant was under the influence of alcohol at the time of the crash, we find no error in the trial court‘s decision to overrule appellant‘s motion and uphold his ALS. Seе Hieney, 2007-Ohio-1199 at ¶17.
{¶14} Secondly, appellant argues
{¶15}
{¶16} The quoted language of
{¶17} Additionally, we note the Ohio Supreme Court has held “that a persоn arrested for operating a vehicle under the influence of alcohol who refuses to submit to a chemical test, even though the test is requested more than two hours after the alleged viоlation, is subject to the implied consent law if the police officer making the request has ‘reasonable grounds to believe the person to have been operating a vehicle upon the public highways in this state while under the influence of alcohol.‘” Cline v. Ohio Bur. of Motor Vehicles (1991), 61 Ohio St.3d 93, 99. (Emphasis added.)
{¶18} Therefore, the “two-hour time limit,” which forms the basis of appellant‘s second argument, is not relevant to this case, where the ALS rеsulted from an explicit refusal of chemical testing. See
{¶19} Accordingly, appellant‘s single assignment of error is overruled.
{¶20} Judgment affirmed.
BRESSLER, P.J., and RINGLAND, J., concur.