State v. Clark, 1733 (2-6-2009)State v. Clark, 1733 (2-6-2009)
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{¶ 1} This mаtter is before the Court on the Notice of Appeal of Russell Clark, filed February 5, 2008. On September 2, 2007, Clark was cited for operating a vehicle while under the influence of alcohol (“OVI“), in violation of
{¶ 2} At the suppression hearing, Trooper Nadi Antonio Charlie Fuentes Graham testified. According to Graham, who had been a trooper since 2001, he was driving northbound on State Route 49, when he observed Clark‘s southbound vehicle “driving partially over the berm over the white line” by about eight to ten inches. Graham testified that he turned around to follow Clark, and as he “started to catch up to him, he again drove over the white line.” When Graham activated his lights and siren, Clark pulled into a private parking lot. Graham identified himself to Clark and informed him that he stopped him for the lane violations. Graham testified, “[u]pon initial contact with the driver, I noticed an odor of an alcoholic beverage about the vehicle.” Graham characterized the odor as “medium.” Clark initially agreed to perform field sobriety tests, but then refused to do so. Clark stumbled “as he was coming to a stop to stand still” after exiting the cruiser. Graham testified that Clark had bloodshot, glassy eyes, and that his speech was slurred. Clark told Graham that he had two beers to drink. Graham testified that he had arrested roughly 60 to 65 DUIs so far that year. Based upon his experience and training, Graham was of the opinion that Clark was intoxicated, and he made an arrest. The municipal court overruled Clark‘s Motion to Suppress on December 19, 2007.
{¶ 3} Clark filed a Jury Demand, which the muniсipal court denied as untimely on January 3, 2008.
{¶ 4} On January 8, 2008, Clark entered a no contest plea to the charges, and he was found guilty. On the OVI charge, Clark was sentenced to 180 days, and the court suspended all but twenty
{¶ 5} Clark asserts two assignments of error. His first assignment of error is as follows:
{¶ 6} “THE TRIAL COURT SHOULD HAVE ORDERED THE EVIDENCE SUPPRESSED BECAUSE AT THE SUPPRESSION HEARING THE OFFICER FAILED TO ARTICULATE AREASONABLE SUSPICION FOR STOPPING THE VEHICLE.”
{¶ 7} “Appellate courts give great deference to the factual findings of the trier of facts. (Internal citations omitted). At a suppression hearing, the trial court serves as the trier of fact, and must judge the credibility of witnesses and the weight of the evidence. (Internal citations omitted). The trial court is in the best position to resolve questions of fact and evaluate witness credibility. (Internal citations omitted). In reviewing a trial court‘s decision on a motion to suppress, an appellate court accepts the trial court‘s factual findings, relies on the trial court‘s ability tо assess the credibility of witnesses, and independently determines whether the trial court applied the proper legal standard to the facts as found. (Internal citations omitted). An appellate court is bound to accept the trial court‘s factual findings as long as they are supported by competent, credible evidence. (Internal citations omitted).” State v. Purser, Greene App. No. 2006 CA 14, 2007-Ohio-192, ¶ 11.
{¶ 8}
{¶ 9} The Ohio Supreme Court recently answered the following certified question in the affirmative: “May a рolice officer who witnesses a motorist cross a right white edge line and without any further evidence of erratic driving or that the crossing was done in an unsafe manner make a constitutional stop of the motorist?” State v. Mays (2008), 119 Ohio St.3d 406, 894 N.E.2d 1204, 2008-Ohio-4539, ¶ 1. In Mays, a State trooper observed the vehiclе ahead of him cross the white lane markings on the right side of the road by about one tire width. Moments later, he observed the vehicle again drift across the right line by about a tire width and then drift back into the lane of traffic. The trooper observed no other traffic violations. The trooper followed the vehicle for about a mile and a half, and then initiated a traffic stop.
{¶ 10} When asked for his driver‘s license Mays presented a credit card. The trooper noticed an odor of alcohol, and that Mays’ eyes were bloodshоt and glassy. The trooper removed Mays from the car, and Mays refused to perform any field sobriety tests. Mays was arrested and charged with OVI, in violation of
{¶ 11} Mays filed a Motion to Suppress, which the trial court sustained, “concluding that the trooper did not have a reasonable and articulable suspicion to support the traffic stop.” Id., at ¶ 4. On appeal, the Fifth District, in contrast, determined that the trooper had a reasonable articulable suspicion that appellant may have violated
{¶ 12} The Supreme Court began its analysis by noting that the
{¶ 13} “Therefore, if an officer‘s decision to stop a motorist for a criminal violation, including a traffic violation, is prompted by a reasonable and articulable suspicion considering all the circumstances, then the stop is constitutionally valid.” Id., ¶ s 7-8.
{¶ 14} As the Mays Court noted, “` * * * the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual‘s
{¶ 15} “As the United States Supreme Court elaborated in Berkemer v. McCarty, a police officer who lacks probable cause but whose observations lead him reasonably to suspect that a particular person‘s behavior is criminal may detain the person briefly to investigate the circumstances that рrovoked the suspicion. 468 U.S. at 439, 104 S.Ct. 3138, 82 L.Ed.2d 317.
{¶ 16} “`[T]he stop and inquiry must be “reasonably related in scope to the
{¶ 17} Mays argued that
{¶ 18} In rejecting Mays’ arguments, the Supreme Court first noted, “the question of whether appellant might have a possible defense to a charge of violating
{¶ 19} In examining
{¶ 20} Quoting the Seventh District Court of Appeals, the Supreme Court noted, “The legislature did not intend for a motorist to be punished when road debris or a parked
{¶ 21} As in Mays, Graham observed Clark drift across the right hand berm line twice, and he accordingly had a reasonable and articulable suspicion that Clark violated
{¶ 22} Clark‘s second assignment of error is as follows:
{¶ 23} “THE ARREST IN THIS CASE VIOLATED THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION BECAUSE THE OFFICER MADE THE ARREST WITHOUT PROBABLE CAUSE.”
{¶ 24} “In State v. Thomas, Montgomery App. No. 21430, 2006-Ohio-6612, we observed:
{¶ 25} The standard of probable cause is a practical, nontechnical concept that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. Probable сause is a fluid concept, turning on the assessment of probabilities in particular factual contexts, not readily or even usefully reduced to a near set of legal rules. Id. In substance, probable cause depends upon the totality of the circumstances that present reasonable grounds for belief of guilt, and that belief of guilt must be particularized with respect to the person to be searched or seized. (Citations omitted). To determine whether an officer had probable cause to arrest an individual, a court must еxamine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.‘” State v. Pencil, Clark App. No. 07CA0057, 2007-Ohio-7164, ¶ 14-15.
{¶ 26} According to Clark, the smell of alcohol, alone, does not indicate intoxication. Clark further argues that bloodshot and glassy eyes may be the result of allergic reactions, hours without sleep, medical conditions or the lateness of the hour. Clark asserts that slurred speech and stumbling may be caused by fatigue, and not necessarily intoxication. Clark relies in part on State v. Dixon, Greene App. No. 2000-CA-30. In Dixon, the defendant was pulled over at 2:20 a.m. for a window tint violation. The officer initiating the stop noticed an odor of alcohol on Dixon‘s person, and Dixon admitted that he had consumed one or two beеrs. The officer asked Dixon to perform field sobriety tests, and during that time, the officer learned that Dixon had an active warrant for his arrest. It was undisputed that the officer had a right to stop Dixon and ultimately arrest him, but the issue was whether the officer had the right to administer
{¶ 27} Here, the smell of alcohol, and an admission to drinking two beers alone did not result in Clark‘s arrest. Graham‘s further observations gave Graham probable cause to arrest Clark; Clark drifted from his lane of travel twice, in violation of
WOLFF, J. and GRADY, J., concur.