State v. DyeState v. Dye
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Hunter Brown, Bowling Green City Prosecutor, for appellee.
Joseph C. Patituce, Megan M. Patituce, and C. Adam Carro, for appellant.
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MAYLE, J.
{¶ 1} Appellant, Joel Dye, appeals the February 18, 2021 judgment of the Bowling Green Municipal Court sentencing him for a misdemeanor conviction of operating a vehicle under the influence of alcohol (“OVI“). For the following reasons, we reverse.
{¶ 2} Early in the morning of October 6, 2019, Dye was parked on the side of Interstate 75 when trooper Christopher Kiefer of the Ohio State Highway Patrol (“OSHP“) stopped to investigate. As a result of their interaction, Dye was arrested and charged with operating a vehicle while under the influence of alcohol in violation of
{¶ 3} Dye moved to suppress the evidence against him because (1) Kiefer did not have the reasonable suspicion necessary to remove Dye from his vehicle and conduct field sobriety tests; (2) Kiefer did not substantially comply with National Highway Traffic Safety Administration (“NHTSA“) standards in conducting the field sobriety tests; (3) Kiefer did not observe any “additional markers of impairment,” so he did not have probable cause to arrest Dye; and (4) the Intoxilyzer 8000 breath-testing machine used to test Dye‘s BAC was not operated in compliance with
{¶ 4} On March 9, 2020, the trial court held a hearing on Dye‘s motion to suppress. The city called Kiefer and Frank Nedveski, an Ohio Department of Health (“ODH“) inspector for alcohol and drug testing. Dye called paramedic Matthew Bechstein. The following facts were adduced at the hearing.
{¶ 5} Around 4:30 a.m. on October 6, 2019, Kiefer saw a Dodge pickup truck parked on the side of Interstate 75. He pulled in behind the vehicle to investigate, as he is required to do with any disabled vehicle. It was raining at the time, but the rain stopped while Kiefer was interacting with Dye. Kiefer approached the driver—Dye—to offer assistance. He said that he noticed that Dye had “bloodshot and glassy” eyes, but did not notice anything else unusual about him. Kiefer testified that Dye asked if Kiefer could take him to get gas. Kiefer agreed, and had Dye step out of his truck. Kiefer “conducted a consensual pat-down for weapons * * *.” While conducting the pat-down and speaking to Dye, Kiefer testified that he “detect[ed] a strong odor of an alcoholic beverage coming from [Dye].” Later, the prosecutor asked, “Would it surprise you if I told you that you noted in the report that you smelled the odor of alcohol when you immediately walked up to the car?” Kiefer responded, “It wouldn‘t surprise me, but if that‘s what I wrote down, that‘s what I wrote down.” The city did not use Kiefer‘s report to refresh his recollection or attempt to admit the report into evidence.
{¶ 6} On cross, Dye played the video recorded by the cameras in Kiefer‘s cruiser. The video showed that, although Kiefer‘s microphone was not activated for the first several minutes, when the sound came on, the first question Kiefer asked Dye was something like “How many did you have to drink tonight?”1 Dye denied drinking.
{¶ 7} Kiefer proceeded to conduct three field sobriety tests: the horizontal gaze nystagmus test (“HGN“), the walk-and-turn test, and the one-leg stand test. Kiefer said that he is required to ask about a suspect‘s general health before conducting field sobriety tests. According to Kiefer, “[a]t some point in the night * * *,” Dye told him that he was a diabetic and had insulin in his truck. Kiefer was aware that diabetes can cause physical issues that “emulate the signs of impairment.”
{¶ 8} During each test, Kiefer observed multiple signs of impairment, including “distinct and sustained nystagmus at maximum deviation” during the HGN test. Kiefer said that when this indicator is present “the probability of the blood alcohol level being above an 08 is 88% [sic].”
{¶ 9} On cross-examination, Dye‘s attorney asked Kiefer about his compliance with NHTSA standards while administrating the field sobriety tests, including his
{¶ 10} Following the field sobriety tests, Kiefer asked Dye to submit to a portable breathalyzer test, which Dye refused. Kiefer then arrested Dye for OVI and placed him in the back of the cruiser. Kiefer explained that he believed he had probable cause to arrest Dye because Dye was the only person in the truck and had told Kiefer that he was driving, Dye had “bloodshot and glassy eyes,” Kiefer noticed “the strong odor of an alcoholic beverage,” and because of “all the field sobriety testing[.]” Dye told Kiefer at the time of the arrest that his blood-sugar level might be high, and Kiefer conceded that Dye‘s behavior could have been affected by “that hyperglycemic state * * *.”
{¶ 11} On cross-examination, Kiefer admitted that he “never saw the vehicle in motion[,]” so he did not witness Dye driving erratically. Nor did he see any signs of an accident or damage to Dye‘s truck. When Kiefer approached Dye‘s truck and spoke to him, Dye was alert and responsive to Kiefer‘s questions. He told Kiefer that he had not consumed any alcoholic beverages. Kiefer said that he did not notice the odor of alcohol while Dye was in the truck, nor did he smell any cover-up odors like cigarettes or perfume. Kiefer asked Dye to get out of the truck so that Kiefer could take him to get
{¶ 12} In addition to noticing the smell of alcohol once Dye was out of the truck, Kiefer said on cross that he first noticed that Dye‘s eyes were glassy and bloodshot after Dye was out of the truck. He also said that he knew that “NHTSA specifically removed bloodshot glassy eyes from its list of clues of impairment[.]”
{¶ 13} Further, although Kiefer initially said that Dye‘s “speech was slurred” when Dye‘s attorney asked if Dye was “speaking incoherently or anything” when Kiefer first spoke to Dye while he was inside the truck, after reviewing the video from his cruiser that showed Dye speaking clearly, Kiefer said that Dye‘s speech was slurred “[a]t some point of the night, * * *” although Kiefer did not “remember exactly when * * *.”
{¶ 14} After arresting Dye, Kiefer took him to the OSHP post near Bowling Green, where Dye took a breath-alcohol test on an Intoxilyzer 8000 breath-testing machine. The test showed that Dye‘s BAC was .141. As far as Kiefer knew, the Intoxilyzer was working properly that day.
{¶ 15} While at the OSHP post, Dye told Kiefer that he was having some diabetic issues. Kiefer called EMS to check Dye. It is unclear whether Kiefer called EMS before or after Dye took the breath test. He said that the paramedics who responded “checked [Dye‘s] blood sugar and it was abnormally high,” although Kiefer could not remember
B. Nedveski‘s testimony
{¶ 16} The city‘s other witness was Frank Nedveski, an ODH inspector. Part of his job included training officers to use the Intoxilyzer 8000, conducting annual certifications of Intoxilyzers, and checking the machines if the dry gas pressure is low or the dry gas canister needs to be replaced.
{¶ 17} On May 22, 2019, Nedveski conducted the annual certification of the Intoxilyzer involved in Dye‘s case. He said that certification involves seven tests, five with a solution and two with dry gas. The results of each certification test “fell within the tolerance of plus or minus 005[,]” which meant that “the instrument is working perfectly to continue to be used for evidential testing.” He also checked to make sure that he could blow into the Intoxilyzer “with no restrictions” and that the instrument would abort a test if there was radio frequency interference. The Intoxilyzer passed both of those checks. There was nothing in the reports from the May 22 certification that indicated to Nedveski that the Intoxilyzer was not working properly.
{¶ 18} Nedveski said that he was familiar with dry gas “[o]nly to install the gas cylinder into the [Intoxilyzer] 8000.” Regardless, he explained that dry gas “has ethanol and nitrogen in it and it‘s made for a value to be tested on an instrument, that it‘s reading properly[,]” and that the gas “mirrors alcohol.” The dry gas is used by the Intoxilyzer for “self checks” before a test subject‘s first breath sample and after the subject‘s second
{¶ 19} Some definitions are necessary for a complete understanding of certain legal issues related to Nedveski‘s testimony—which involve “metrology,” i.e., “the science of weights and measures or of measurement.” Merriam Webster‘s Collegiate Dictionary 732 (10th Ed.1996). According to a publication by NIST that was admitted as defendant‘s exhibit No. 2 at the suppression hearing—“Supplementary Materials related to NIST Policy on Metrological Traceability” (“NIST supplement“)—“NMI” means national metrology institute, which is a governmental organization responsible for maintaining a country‘s standard measurements. See National Institute of Standards and Technology, Supplementary Materials related to NIST Policy on Metrological Traceability (Sept. 10, 2019), I.C.1. NIST is the NMI for the United States. Id. The “Mutual Recognition Arrangement” (“MRA“; referred to in the DRYGAZ certificate of analysis, which was admitted as city‘s exhibit D at the suppression hearing, as a “mutual recognition agreement“) is an agreement among the NMIs of different countries to help establish the degree of equivalence of national measurement standards, provide for mutual recognition of calibration and measurement certificates issued by NMIs, and provide a secure technical foundation for international trade, commerce, and regulation. Id. at I.E.1
{¶ 21} When the prosecutor asked Nedveski how he knew that the dry gas was traceable to NIST, Nedveski replied, “It says it on the report here that it‘s traceable to the National Metrology Institute tracing standards and that‘s the standards it uses.” Nedveski said that the Intoxilyzer would not have been certified if the dry gas in the machine was not up to ODH standards.
{¶ 22} On cross, Nedveski said that
{¶ 23} Throughout cross-examination, Nedveski made it clear that he did not know specifics about the traceability of the dry gas canister that he installed in the Intoxilyzer 8000 at the Bowling Green OSHP post. For example, following a line of questions about traceability, Nedveski said that “as far as going into [NIST traceability] * * * I‘m not qualified to go into that.” He also said that his job, as it relates to the certificate of analysis that comes with a canister of dry gas, is “to review the value of it and enter that into the [Intoxilyzer] 8000 * * *.” Importantly, he said that another ODH employee was a more appropriate witness to testify regarding traceability. According to Nedveski, “this would be more of Gina‘s expertise to question any of the methods used for traceability. I just accept the tank for the value performance and install into the instrument. * * * [A]s far as the person to question the validity of accurate testing on the dry gas or analytical, you would have to have Gina come in and testify.”
{¶ 24} Regardless, Nedveski attempted to answer some of Dye‘s questions specific to traceability. He first acknowledged that “NMI Traceable Standards” is “what‘s on the cert form” for the canister of dry gas that he used to certify the Intoxilyzer in May 2019 and that the certificate “has a specification to NMI and other standards, analytical testing.” While NMI is not the same entity as NIST, Nedveski believed that
{¶ 25} Counsel showed Nedveski an Intoxilyzer certification from December 2019—after Dye‘s breath test—that included a certificate of analysis for ILMO brand dry gas. According to Nedveski, there was “[n]o specific reason to change dry gas vendors. [ODH] just bought this dry gas.” He acknowledged that the ILMO certificate of analysis said that “[t]he calibration results within this certificate were obtained using equipment and standards capable of producing analytical results traceable to NIST * * *[,]” and that the DRYGAZ certificate did not contain the phrase “traceable to NIST.” Regardless, Nedveski responded “Yes” when counsel asked if he “still fe[lt] that this machine was properly calibrated under NIST[.]”
{¶ 26} On redirect, Nedveski agreed with the prosecutor‘s clarification that “the traceability as is noted on the [DRYGAZ certificate] is compliant with the Ohio
C. Bechstein‘s testimony
{¶ 27} Following the city‘s case, Dye called Bechstein, who was one of the paramedics who responded to the OSHP to examine Dye. He testified that the normal blood sugar range for a healthy adult is between 60 and 110. Dye‘s blood sugar at the time Bechstein examined him was 329. The paramedics allowed Dye to take his own insulin, after which his blood sugar level began to decrease.
{¶ 28} Bechstein said that people with hyperglycemia—or high blood sugar—exhibit different symptoms depending on how high their blood sugar is, but that it can affect a person‘s mental state and coordination. Additionally, a person with hyperglycemia who has entered ketoacidosis—a state in which the body attempts to mitigate high blood sugar by releasing ketones—will sometimes have a “sweet” or “fruity” odor on their breath. Although Dye‘s blood sugar was high, Bechstein said that “somebody might not have diabetic ketoacidosis at that level.” Bechstein had not personally seen any cases where a person‘s ketoacidosis affected the results of a breath-alcohol test.
{¶ 29} On cross, Bechstein said that he did not remember Dye telling him that he had been drinking that day and did not notice an odor of alcohol while caring for Dye. However, the EMS report from that run, which was written by Bechstein‘s partner, said that “patient admits to alcohol use.” He also said that someone who is having a diabetic
D. The trial court‘s decision
{¶ 30} Following the hearing, the trial court denied Dye‘s motion to suppress. In its findings of fact, the trial court determined that “Kiefer could smell a strong odor of alcohol coming from [Dye] and [Dye‘s] truck while his speech was slurred.” The odor of alcohol and slurred speech, combined with Kiefer‘s observation that Dye‘s eyes were “glassy and bloodshot” provided Kiefer with reasonable suspicion to conduct field sobriety tests. The court also determined that Kiefer administered the field sobriety tests “in substantial compliance with the NHTSA requirements if not literal compliance * * *.” Finally, the court found that Kiefer had probable cause to arrest Dye for OVI “[b]ased upon the results of the [field sobriety tests], [Dye] being found out of gas and stranded by the roadside at 4:24 am, [Dye‘s] bloodshot, glassy eyes, slurred speech and strong odor of alcohol * * *.”
{¶ 31} Regarding the traceability of the dry gas used in the Intoxilyzer, the trial court found that Nedveski “testified that he had no knowledge of the traceability of dry gas to NIST used with [the Intoxilyzer] other than that printed on State‘s Exhibit D [the DRYGAZ certificate of analysis] which showed the gas was approved by ODH.” However, the court went on to hold that the “use of the dry gas similar to that in [Dye‘s] test and previously approved by the Ohio Department of Health substantially complied with the ODH regulations for Intoxilyzer 8000 instruments.” The court also determined
E. Dye‘s plea and sentence
{¶ 32} Following the denial of his motion to suppress, Dye pleaded no contest to OVI in violation of
{¶ 33} Dye appeals his conviction, raising four assignments of error:
ASSIGNMENT OF ERROR 1: THE TRIAL COURT ERRED IN FINDING THAT TROOPER KIEFER HAD REASONABLE AND ARTICULABLE SUSPICION TO JUSTIFY THE CONTINUED DETENTION FOR FIELD SOBRIETY TESTING.
ASSIGNMENT OF ERROR 2: THE TRIAL COURT ERRED IN FINDING THAT THE FIELD SOBRIETY TESTS WERE CONDUCTED IN SUBSTANTIAL COMPLIANCE WITH NHTSA STANDARDS.
ASSIGNMENT OF ERROR 3: THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO SUPPRESS, BECAUSE TROOPER KIEFER LACKED PROBABLE CAUSE TO ARREST APPELLANT DUE TO THE LACK OF MARKERS OF IMPAIRMENT.
ASSIGNMENT OF ERROR 4: THE TRIAL COURT ERRED IN FINDING THAT THE INTOXILYZER 8000 WAS IN COMPLIANCE WITH
OHIO ADMINISTRATIVE CODE 3701-53-04 .
II. Law and Analysis
{¶ 34} In his assignments of error, Dye argues that (1) the trial court‘s determination that Kiefer had reasonable suspicion to conduct field sobriety tests was not supported by competent, credible evidence; (2) the trial court erred in finding that Kiefer conducted the field sobriety tests in substantial compliance with NHTSA standards; (3) the trial court‘s determination that Kiefer had probable cause to arrest him based, he claims, on “the alleged odor of alcohol alone * * *” was insufficient evidence of probable cause; and (4) the Intoxilyzer used to test his BAC was not certified in compliance with
A. Standard of review
{¶ 36} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The trial court acts as the trier of fact at a suppression hearing by weighing the evidence and determining the credibility of the witnesses. Although we must accept any findings of fact that are supported by competent, credible evidence, we conduct a de novo review
B. The city failed to meet its burden of showing substantial compliance with Ohio Adm.Code 3701-53-04 .
{¶ 37} We first address Dye‘s fourth assignment of error. In it, he contends that the trial court erred in finding that the Intoxilyzer used to test his BAC complied with the requirements of
{¶ 38} In
{¶ 39} To trigger the presumption of admissibility in
{¶ 40} Although the Ohio Supreme Court has determined that “rigid compliance with the Department of Health regulations is not necessary for test results to be admissible[,]” it has also “limit[ed] the substantial-compliance standard * * * to excusing only errors that are clearly de minimis” or that can be characterized as “‘minor procedural deviations.‘” Id. at ¶ 34, citing State v. Steele, 52 Ohio St.2d 187, 370 N.E.2d 740 (1977); and quoting State v. Homan, 89 Ohio St.3d 421, 426, 732 N.E.2d 952 (2000).
{¶ 41} By adopting this standard, the Supreme Court sought to prevent lower courts from making judicial determinations of whether the state‘s compliance with alcohol-testing regulations affected the reliability of alcohol-test results. It did this to prevent the courts from “second-guessing whether the regulation with which the state has not complied is necessary to ensure the reliability of the alcohol-test results” and “usurping a function that the General Assembly has assigned to the Director of Health * * *“—i.e., “ensur[ing] the reliability of alcohol-test results * * *“—which the court deemed
{¶ 42} The regulations that the director of ODH promulgated related to alcohol testing are in Ohio Adm.Code Chapter 3701-53. Pertinent to Dye‘s case, ODH has approved the Intoxilyzer 8000 as a breath-alcohol testing instrument.
Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code [i.e., the Intoxilyzer 8000] shall automatically perform a dry gas control using a dry gas standard traceable to the national institute of standards and technology (NIST) before and after every subject test. For purposes of [the Intoxilyzer 8000], a subject test shall include the collection of two breath samples. A dry gas control is not required between the two breath samples. (Emphasis added.)
The regulation also requires the use of dry gas traceable to NIST any time “[r]epresentatives of the director” of ODH “perform an instrument certification on * * *”
{¶ 43} We recently decided a case addressing the issue of the traceability of the same brand of dry gas used for Dye‘s breath test. In Bowling Green v. Farrell, 2021-Ohio-1554, 172 N.E.3d 488 (6th Dist.), based on similar testimony from Nedveski, the same certificate of analysis, an earlier version of the NIST supplement,3 and an additional NIST publication (the “NIST policy“), we found that the city failed to show substantial compliance with
{¶ 44} First, the DRYGAZ certificate of analysis presented to the trial court plainly states that the “CERTIFICATION [is] TRACEABLE TO National Metrology Institute Traceable Standards.” (Emphasis added.) Equally plain is
{¶ 45} In Farrell, at ¶ 27, we noted that
[a]ccording to the NIST policy, “[m]etrological traceability requires the establishment of an unbroken chain of calibrations * * * to specified references.” Although NIST “assures the traceability of measurement results that NIST itself provides, * * * [o]ther organizations are responsible
for establishing the traceability of their own results to those of NIST or other specified references.” It is official NIST policy that “providing support for a claim of metrological traceability of the result of a measurement is the responsibility of the provider of that result * * *.” The NIST policy also “[c]ommunicates, especially where claims expressing or implying the contrary are made, that NIST does not * * * certify metrological traceability * * * of the results of measurements except those that NIST itself provides, either directly or through an official NIST program or collaboration.” (Brackets and ellipses sic.)
{¶ 46} Although the NIST policy that was before the court in Farrell was not admitted into evidence in this case, the trial court record does contain the NIST supplement—which goes into even greater detail about metrological traceability and how to determine whether a measurement is, or is not, traceable to NIST standards. Of importance here is the NIST supplement‘s discussion of the MRA (i.e., the Mutual Recognition Arrangement). The NIST supplement explains that the MRA is an agreement among the NMIs that are members of the International Committee on Weights and Measures. In short, the arrangement allows member NMIs to recognize and accept as equivalent the measurements established by the NMIs of all other member countries. Section I.E.2. of the NIST supplement directly addresses whether measurements that are traceable to standards maintained by one signatory NMI are also traceable to standards maintained by another signatory NMI:
While signatory NMIs (including NIST) recognize the validity of other signatories’ measurement and calibration certificates under the MRA, such recognition does not mean that measurement results obtained by one signatory NMI are automatically traceable to stated references developed and maintained by any other signatory NMI. However, users of measurement results * * * may well decide that sufficient evidence exists under the MRA to provide mutually acceptable traceability of these results to the standards and measurements of two or more participating NMIs. (Emphasis added.)
{¶ 47} The information in section I.E.2. of the NIST supplement tells us two things: (1) metrological traceability of measurement results to standards maintained by some unspecified NMI—even one that is a signatory to the MRA—does not automatically result in traceability to NIST standards and (2) the proponent of the measurement is free to decide that the MRA provides sufficient evidence of “mutually acceptable traceability” between the other NMI‘s standards and NIST‘s standards. Essentially, traceability to another NMI that is an MRA signatory is not definitively synonymous with traceability to NIST. Rather, NIST allows the proponent of the measurement to articulate why its reference to standards maintained by another signatory NMI is sufficient to support its claim of traceability to NIST standards. Importantly, the NIST supplement clearly states that the proponent of the measurement has the burden of showing that its measurement is traceable to NIST standards.
{¶ 49} Based on this evidence, we cannot say that the city demonstrated in this case that it used “a dry gas standard traceable to the national institute of standards and technology (NIST) * * *,” as required by
{¶ 51} Even a cursory reading of the NIST supplement shows that the field of metrology, generally, and metrological traceability, specifically, are highly precise, technical, and exacting in nature. In the breath-alcohol-testing regulations, the director of ODH unambiguously required the Intoxilyzer 8000 to use a dry gas that was traceable to NIST standards. The evidence in this case shows that the dry gas was traceable to unspecified NMI standards, but does not show that those NMI standards and NIST standards are equivalent or interchangeable. Without that critical link, we cannot find that the city met its burden of demonstrating that Dye‘s breath test was administered in substantial compliance with
{¶ 52} On that basis—and given that the record lacks any testimony regarding the traceability of the dry gas at issue—we cannot say that the use of dry gas that is traceable to different metrological standards than those required by
[a]lthough the Ohio Supreme Court has recognized that the director of ODH has scientific expertise superior to that of the judiciary, Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 32, and we agree that courts “cannot undercut [ODH‘s] rulemaking authority * * *” by ignoring or adding to the requirements of validly-adopted regulations, State v. Yoder, 66 Ohio St.3d 515, 518, 613 N.E.2d 626 (1993), courts are not required to blindly accept the truth of the information that the state presents simply because it involves science. * * *
Contrary to the city‘s argument, this is not a case where we, as a court, are looking at compliance with
Ohio Adm.Code 3701-53-04 to make a determination about the reliability of the test result, thereby second-guessing a scientific decision made by the director of ODH in implementing a regulation regarding alcohol testing. Rather, as instructed in Burnside, we are looking at the contents of the regulation to see if the city has demonstrated that it substantially complied with the requirements of the regulation when it administered Farrell‘s breathalyzer test. Burnside at ¶ 32 (“[C]ompliance with the regulations * * * is the criterion for admissibility.” (Emphasis omitted.)). Indeed, in this particular case,
{¶ 54} The city also argues that the “Governing Case Law on this Issue * * *” shows that the DRYGAZ complies with
{¶ 56} At the suppression hearing, Nedveski stated numerous times that he did not have the knowledge and expertise to opine on the traceability of the dry gas used in Dye‘s breath test. He was clear that his knowledge of the suitability of a canister of dry gas for use in an Intoxilyzer was limited to “review[ing] the value of it and enter[ing] that into the [Intoxilyzer] 8000 * * *[,]” and “accept[ing] the tank for the value performance and install[ing] into the instrument.” So, although Nedveski‘s testimony showed that the dry gas met the potency standard that he was looking for, his testimony is insufficient to
{¶ 57} Moreover, in Farrell we distinguished the municipal court cases on the basis that the trial court had documentary evidence before it that was not presented to the other municipal courts (i.e., in Farrell, the NIST policy and supplement; in this case, the NIST supplement). The NIST publications, standing alone, demonstrated that the certificate of analysis was insufficient to show traceability to NIST without some additional testimony or explanation. Id. at ¶ 39.
{¶ 58} Accordingly, we find that Dye‘s fourth assignment of error is well-taken because the trial court erred in denying his motion to suppress the results of his breathalyzer test.
{¶ 59} Unlike in Farrell, however, our analysis does not end here because Dye was convicted of OVI under
{¶ 60} We now turn to Dye‘s first assignment of error, in which he argues that Kiefer lacked the requisite reasonable suspicion, based on specific, articulable facts, to conduct field sobriety tests. We agree.
{¶ 61} The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution protect citizens from unreasonable searches and seizures. “‘The U.S. Supreme Court has created three categories of police-citizen contact to identify the separate situations where constitutional guarantees are implicated: (1) consensual encounters, (2) investigative or ”Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)]” stops, and (3) arrests.‘” (Brackets sic.) State v. Williams, 6th Dist. Lucas No. L-17-1148, 2018-Ohio-5202, ¶ 20, quoting State v. Staten, 4th Dist. Athens No. 03CA1, 2003-Ohio-4592, ¶ 16.
{¶ 62} Two of the three types of encounters—arrests and investigatory stops—require the officer to have some justification for his contact with the citizen. For an arrest, the officer must have probable cause. State v. Barner, 6th Dist. Wood No. WD-01-034, 2002 WL 737065 (Apr. 26, 2002). For an investigatory stop, the officer must have a reasonable, articulable suspicion that criminal activity is occurring. State v. Mesley, 134 Ohio App.3d 833, 840, 732 N.E.2d 477 (6th Dist.1999), citing United States v. Brignoni-Ponce, 422 U.S. 873, 840, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). However, the requirement for reasonable, articulable suspicion or probable cause is excused when police exercise their “community caretaking” function to approach a person who appears
{¶ 63} Here, Kiefer testified that he is required to stop and investigate any disabled vehicle, and Dye said on the video from Kiefer‘s cruiser that he was surprised at how quickly a trooper arrived after he called for assistance. We conclude that Kiefer‘s initial contact with Dye—i.e., his initial approach of Dye‘s vehicle, which was stopped on the side of I-75 late at night—falls under the umbrella of community caretaking, and we find no fault with this interaction.
{¶ 64} Although Kiefer‘s initial encounter with Dye did not require justification, his administration of field sobriety tests did. An officer‘s request that a driver participate in field sobriety testing qualifies as a seizure subject to Fourth Amendment protection and must be “‘separately justified by specific, articulable facts showing a reasonable basis for the request.‘” Bowling Green v. Murray, 6th Dist. Wood No. WD-18-045, 2019-Ohio-4285, ¶ 19, quoting State v. Trevarthen, 11th Dist. Lake No. 2010-L-046, 2011-Ohio-1013, ¶ 15; and citing State v. Bright, 5th Dist. Guernsey No. 2009-CA-28, 2010-Ohio-1111, ¶ 17. Kiefer, therefore, was required to provide specific, articulable facts supporting a reasonable suspicion that Dye operated his vehicle while under the influence of alcohol. State v. Graff, 6th Dist. Lucas No. L-11-1307, 2013-Ohio-2242, ¶ 15.
{¶ 65} Ohio courts recognize that a number of factors may supply an officer with reasonable suspicion to conduct field sobriety tests, including, but not limited to (1) the time of day that the stop occurred; (2) the area where the stop occurred; (3) whether there was erratic driving that might point to a lack of coordination; (4) the existence of a “cognizable report” that the driver might be intoxicated; (5) the appearance of the suspect‘s eyes;4 (6) impairments related to the individual‘s speech; (7) an odor of alcohol in the car or on the person; (8) the strength of that odor; (9) lack of coordination after the stop; (10) “the suspect‘s demeanor“; and (11) the suspect‘s admission of alcohol consumption. State v. Evans, 127 Ohio App.3d 56, 63, 711 N.E.2d 761 (11th Dist.1998), fn. 2. In determining whether the officer had reasonable suspicion we look at the totality of the circumstances, not any one factor. State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991).
{¶ 66} Whether the facts of a case provide an officer with reasonable suspicion for conducting field sobriety tests is often a close issue. Murray at ¶ 21, citing State v. Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, ¶ 16. These decisions are “‘very fact-intensive,‘” leading courts to reach different decisions in seemingly similar circumstances; “[t]he slightest difference between officers’ descriptions of an encounter can form the basis for opposite outcomes.” Id., quoting State v. Burkhart, 2016-Ohio-7534, 64 N.E.3d 1004, ¶ 15 (4th Dist.).
{¶ 67} Here, the trial court determined that Kiefer had the reasonable suspicion necessary to conduct field sobriety tests because Kiefer “could smell a strong odor of alcohol coming from [Dye] and [Dye‘s] truck while his speech was slurred[,]” and Kiefer noticed that Dye‘s eyes were “glassy and bloodshot.” We find that, under the facts of this case, the trial court erred in determining that Kiefer had reasonable, articulable suspicion to conduct the field sobriety tests because some of these factual findings lacked competent, credible evidence.
{¶ 68} We have repeatedly held that “[w]here a non-investigatory stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication * * * reasonable suspicion exists.” (Emphasis added.) Beeley at ¶ 16. “[F]urther indicia of intoxication” that we have found sufficient to provide an officer with reasonable suspicion include admission to consuming alcohol, slurred speech, and fumbling or searching for a driver‘s license or registration paperwork. E.g., Beeley at ¶ 17 (“strong” and “unmistakable” odor of alcohol as soon as driver rolled down his car window, bloodshot eyes, admission to drinking “about an hour” before the stop); State v. Mapes, 6th Dist. Fulton No. F-04-031, 2005-Ohio-3359, ¶ 42 (odor of alcohol in driver‘s
{¶ 69} However, without additional indicia of intoxication, we tend to find that the odor of alcohol and bloodshot, glassy eyes—standing alone—are insufficient to provide reasonable suspicion for field sobriety tests.
{¶ 70} In Whitehouse v. Stricklin, 6th Dist. Lucas L-10-1277, 2012-Ohio-1877, for example, the officer stopped Stricklin‘s vehicle at 1:26 a.m. after observing that one of his headlights was inoperable. Id. at ¶ 3. Stricklin exited his car, struck the headlight with his hand, rendering it operable, and then returned to the car. Id. The officer continued to speak to Stricklin after he was back in his car, and during the course of their interaction, she noticed that Stricklin had a slight odor of alcohol on his breath, bloodshot, glassy eyes, and an “anxious” demeanor. Id. at ¶ 3-4. Stricklin denied that he had been drinking. Id. at ¶ 4. The officer ran Stricklin‘s license information and learned that he had a prior OVI. Id. She then asked Stricklin to take a portable breath test and, when he refused, asked him to exit the vehicle so that she could administer field sobriety tests. Id. After determining that Stricklin failed those tests, the officer arrested him for OVI. Id.
{¶ 71} On appeal from the trial court‘s decision denying Stricklin‘s motion to suppress the results of the field sobriety tests, we explained that “[t]raffic violations of a
{¶ 72} Similarly, in State v. Kennard, 6th Dist. Huron No. H-01-006, 2001 WL 605106, (June 1, 2001), an officer pulled Kennard over because her license plate light was not functioning and she weaved within her lane of travel. Id. at *1. The officer testified that Kennard‘s speech was slurred and she had “a moderate or strong odor of alcohol about her person.” Id. There was also a video of the stop in which Kennard admitted to drinking “one beer.” Id. at *2. The trial court found that, contrary to the officer‘s testimony, the video did not show Kennard slurring her speech—which undermined the officer‘s credibility—and suppressed the evidence from the stop. Id.
{¶ 73} We affirmed because the time of the stop, the moderate to strong odor of alcohol about Kennard‘s person, and her admission to drinking one beer were insufficient to give rise to a reasonable, articulable suspicion that she was intoxicated. Id.; see also State v. Watkins, 2021-Ohio-1443, 170 N.E.3d 549, ¶ 37 (6th Dist.) (finding that the officer lacked reasonable, articulable suspicion to conduct field sobriety tests when he “observed only that [Watkins‘s] eyes were bloodshot and glassy (at approximately 3:00 a.m.), she smelled of alcohol (of an unspecified strength), and she admitted to having had
{¶ 74} In this case, the trial court determined that Kiefer identified three indicators of impairment before he conducted the field sobriety tests: (1) a strong odor of alcohol, (2) bloodshot, glassy eyes, and (3) slurred speech while Dye was in his truck. We will address slurred speech first because we find that the record lacks competent, credible evidence to support this finding.
{¶ 75} Kiefer first testified on cross-examination that Dye‘s “speech was slurred” when Dye‘s attorney asked if Dye was “speaking incoherently or anything” when Kiefer first approached Dye in his truck. However, after Dye‘s attorney played the video from the cruiser—which shows Dye speaking clearly—Kiefer changed his testimony. Instead of alleging that Dye‘s speech was slurred at the time of initial contact, Kiefer clarified that Dye‘s speech was slurred “[a]t some point of the night, * * *” but he did not “remember exactly when * * *.” Critically, Kiefer did not testify that he noticed that Dye‘s speech was slurred before he decided to administer the HGN test.
{¶ 76} Because Kiefer testified that he could not remember “exactly when” he heard slurred speech from Dye—and because the cruiser video demonstrates that Dye‘s speech was clear (i.e., does not sound slurred) from the time Kiefer activated his microphone to the time he asked if he could “check [Dye‘s] eyes real quick“—the record lacks competent, credible evidence to support the trial court‘s finding that Dye exhibited “slurred speech” while he was in his truck.
{¶ 78} Finally, regarding Dye‘s eyes, Kiefer testified that he noticed that they were “bloodshot and glassy” while he was talking to Dye at the window of Dye‘s truck.
{¶ 79} Based on our case law and considering the totality of the circumstances, we cannot find that Kiefer had reasonable, articulable suspicion to administer field sobriety tests to Dye. Based on the evidence and testimony in the record, we are left with Kiefer‘s observations that Dye‘s eyes were glassy and bloodshot (at 4:30 a.m.), and his testimony that Dye had a “strong” odor of alcohol upon him, which he noticed when he “got close to [Dye]” to perform a pat-down. As discussed above, there is no competent, credible evidence to suggest that Dye‘s speech was slurred at any point before Kiefer began to administer the field sobriety tests. Additionally, there were no other indicia of impairment—such as erratic driving, admission to drinking alcohol, stumbling, falling, or
{¶ 80} Because the record lacks evidence of impairment beyond glassy, bloodshot eyes and the odor of alcohol, we cannot find that the trial court‘s determination regarding Kiefer‘s reasonable, articulable suspicion that Dye was impaired is supported by some competent, credible evidence. Accordingly, we find that the trial court erred in failing to suppress the results of Dye‘s field sobriety tests. Dye‘s first assignment of error is well-taken.
D. Dye‘s second assignment of error is moot.
{¶ 81} Because we have determined that the trial court should have suppressed the results of the field sobriety tests, the issue of whether Kiefer conducted the tests in substantial compliance with NHTSA standards is moot. Dye‘s second assignment of error is not well-taken.
E. Kiefer lacked probable cause to arrest Dye.
{¶ 82} Finally, in Dye‘s third assignment of error, he argues that Kiefer lacked probable cause to arrest him for OVI because “Trooper Kiefer testified that ultimately, the alleged odor of alcohol alone was enough probable cause to arrest [him].” While we disagree with Dye‘s characterization of Kiefer‘s testimony, we agree that he lacked probable cause to make an arrest.
{¶ 83} To determine whether an officer had probable cause to arrest a driver for OVI, a reviewing court must consider whether, at the time of the arrest, “the police had
{¶ 84} Here, Kiefer testified that he believed he had probable cause to arrest Dye because Dye was the only person in the truck and had told Kiefer that he was driving, Dye had “bloodshot and glassy eyes,” Kiefer noticed “the strong odor of an alcoholic beverage,” and “all the field sobriety testing[.]” The trial court found that Kiefer had probable cause to arrest Dye for OVI “[b]ased upon the results of the [field sobriety tests], [Dye] being found out of gas and stranded by the roadside at 4:24 am, [Dye‘s] bloodshot, glassy eyes, slurred speech and strong odor of alcohol * * *.” We have determined that the results of the field sobriety tests are inadmissible, so we cannot consider them in determining whether Kiefer had probable cause to arrest Dye.
{¶ 85} The remaining circumstances that play into Kiefer‘s probable cause to arrest Dye are (1) a “strong” odor of alcohol coming either from Dye‘s person or Dye‘s truck; (2) Dye slurring his speech “[a]t some point of the night * * *,” although Kiefer could not remember when, and, importantly, it is unclear whether the slurred speech occurred before or after Dye‘s arrest; (3) Dye denying drinking any alcohol; (4) Dye admitting that he was coming from a “college campus“; (5) Dye running out of gas and parking on the side of an interstate with his hazard lights flashing at 4:30 in the morning; (6) Kiefer‘s testimony that he did not recall Dye having difficulty exiting the truck, Dye did not lean on the truck or fall when he got out, and there were no open containers of alcohol in the truck; (7) Kiefer‘s admission that Dye told him that his blood-sugar level might be high, which Kiefer conceded could have affected Dye‘s behavior; and (8) Kiefer‘s testimony that Dye was alert and responsive to Kiefer‘s questions.
{¶ 86} Taken together, these facts do not support a finding that Kiefer had, at the time he arrested Dye, “sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that [Dye] was driving under the influence.” Homan at 427. Although Dye was out at 4:30 a.m., had glassy, bloodshot eyes, and smelled of alcohol, Dye‘s behavior did not show
III. Conclusion
{¶ 87} Based on the foregoing, the February 18, 2021 judgment of the Bowling Green Municipal Court is reversed, and Dye‘s conviction is vacated. The city is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed.
Mark L. Pietrykowski, J.
Christine E. Mayle, J.
Myron C. Duhart, J.
CONCUR.
JUDGE
JUDGE
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.supremecourt.ohio.gov/ROD/docs/.