State v. LoveState v. Love
JUDGMENT: Reversed. Conviction Vacated.
Atty. Vito Abruzzino, Columbiana County Prosecutor and Atty. Danielle Menning, Assistant Prosecuting Attorney, Columbiana County Prosecutor‘s Office, 38832 Saltwell Road, Lisbon, Ohio 44432, for Plaintiff-Appellee
WAITE, J.
{¶1} Appellant Stacy R. Love appeals a March 31, 2019 Columbiana County Municipal Court judgment entry convicting her of operating a vehicle while under the influence of alcohol or drugs (“OVI“). Appellant argues that the state failed to present sufficient evidence that she was impaired by a drug of abuse at the time of the traffic stop. In addition, she argues that the trial court erroneously gave the jury a “drug of abuse” instruction even though there was no evidence to show that methamphetamine is a drug of abuse. For the reasons provided, Appellant‘s arguments have merit. The judgment of the trial court is reversed and Appellant‘s conviction is vacated.
Factual and Procedural History
{¶2} On July 8, 2019, Appellant parked at a gas station pump in Columbiana, Ohio. As she filled her tank, a station attendant called the police and informed dispatch that the person using pump number three, Appellant, appeared to be impaired. The attendant provided to dispatch the license plate number of the car Appellant was driving.
{¶3} Patrolman Bryan Granchie of the Columbiana Police Department arrived at the gas station shortly thereafter and saw Appellant pull out of the parking lot. He made eye contact with her, and saw that she was having what he described as uncontrollable body tremors. He followed Appellant‘s car in his vehicle and she quickly completed a right-hand turn without the use of a turn signal and then crossed the center line. He initiated a traffic stop of the vehicle. At that time, he noticed her speech was slurred, but
{¶4} Patrolman Granchie conducted a field sobriety test which Appellant did not successfully complete. He offered to have her take a urine test, which she refused. She told him that she had a prescription for Suboxone but had taken something “not prescribed” the day before. (Trial Tr., p. 94.) Patrolman Granchie placed her under arrest and transported her to the police station. He searched Appellant‘s person and her vehicle, but did not find any contraband. He did not seek a warrant to have a blood test performed on Appellant.
{¶5} A video showing Appellant at the police station was offered and admitted at trial. This video has no audio component. Although Appellant is sitting with her back to the camera for most of the time, there are several points during the video where she stood. At those times, Appellant can be seen having some difficulty controlling her body movements.
{¶6} Ohio State Patrol Trooper Timothy Myers, a drug recognition expert (“DRE“), was called in to observe Appellant. Myers testified that a DRE analysis is conducted by reviewing the standards within the National Highway Traffic Safety Administration (“NHTSA“) manual. Myers’ findings are outlined within a report that was admitted into evidence as state‘s exhibit F.
{¶8} In Trooper Myers’ report he indicated that Appellant had an elevated pulse, consisting of three readings taken at different times and registering at 90, 100, and 90. However, as pointed out on cross-examination, a pulse reading of 90 is at the higher end of the normal range, which includes pulse readings of 60 to 90 beats per minute. (Trial Tr., p. 174.) Thus, two of Appellant‘s readings were within the normal range. The report also noted Appellant‘s elevated blood pressure, which was 120 over 90. On cross-examination of Trooper Myers, he admitted the 120 reading is normal, but the 90 reading was slightly above normal. Trooper Myers testified that he observed “heat bumps” in Appellant‘s oral cavity. He explained that these bumps are caused “from smoking an unfiltered item. Anything without a filter can cause these bumps on the back on your tongue.” (Trial Tr., p. 152)
{¶10} Based on his evaluation, Trooper Myers believed Appellant had taken methamphetamine. He testified that methamphetamine would be expected to show its effects on a user for up to twelve hours after use. He testified that the traffic stop occurred at 8:25 p.m. The state introduced and heavily relied on Appellant‘s comment that she had “slipped up” and taken something “not prescribed” the previous day.
{¶11} After a one-day trial, a jury convicted Appellant on the OVI charge. After the jury‘s verdict, the trial court separately convicted Appellant on the turn signal violation. The court sentenced Appellant to ninety days in jail, with eighty-four days suspended. The court imposed a one-year driver‘s license suspension and two years of probation. The court also imposed an $875 fine for the OVI and a $30 fine for the turn signal violation. The court granted Appellant‘s motion to stay the sentence in its entirety pending appeal. It is from this entry that Appellant timely appeals.
ASSIGNMENT OF ERROR NO. 1
THE COURT COMMITTED PREJUDICIAL ERROR BY DENYING A MOTION FOR JUDGMENT OF ACQUITTAL WHEN THE STATE FAILS TO PROVE THE DEFENDANT IS UNDER THE INFLUENCE OF A SPECIFIC DRUG OF ABUSE AND FAILS TO PRESENT ANY EVIDENCE AS TO WHAT CONSTITUTES A DRUG OF ABUSE.
{¶12} Appellant argues that the state failed to present any evidence that she was impaired by any specific drug, an element of
{¶13} Appellant was convicted of a violation of
{¶15} On appeal, the Collins court reversed the conviction based on insufficient evidence. While the court acknowledged that the officers testified at length as to the driver‘s condition and their observations, the court held that this was insufficient to establish that she was impaired, specifically, by a drug of abuse. Thus, the state failed to establish a nexus between the driver‘s condition and a drug of abuse. The court emphasized that no drugs were found in the vehicle or on the driver‘s person and she did not otherwise admit to drug use.
{¶16} One year later, the Eighth District addressed the issue of what evidence must be presented to demonstrate a nexus between a drug of abuse and impairment for purposes of
{¶18} The Fourth District more recently addressed the issue in State v. Husted, 2014-Ohio-4978, 23 N.E.3d 253 (4th Dist.). In Husted, officers were called to check on a person sitting inside a vehicle parked in the front of a gas station. The woman exhibited signs of impairment and, when she exited the vehicle, a small straw commonly used to snort drugs fell off her lap. She admitted that she did take a drug, but did not specify which drug. She declined both a field sobriety test and a urine test, and the officers did not submit the straw for residue testing.
{¶19} On appeal, the Husted court reversed the woman‘s conviction based on insufficient evidence. The court acknowledged that the straw found on her lap was typically associated with drug use, however, there was no evidence to show what drug had been ingested and whether that drug was a drug of abuse. Id. at ¶ 21. The court
{¶20} The state argues that unlike the cases cited by Appellant, this matter involves an admission of drug use. The state relies on Appellant‘s statement that she had “slipped up” the day before and apparently taken something “not prescribed.” She did not specify what she had taken and did not enlarge her statement beyond saying that whatever she took was not prescribed. Similarly, in Turner and Husted, there were vague admissions to use of an unspecified drug. Both courts held that, in order to satisfy the requirements of the statute, any alleged admission must refer to a specific drug of abuse. Here, Appellant never admitted to using a specific drug except for Suboxone, which does not qualify as a drug of abuse. At best, the state proved that Appellant took some substance she was “not prescribed” the day before the incident. This could refer to a methamphetamine, or it could refer to cold medicine. Without more, Appellant‘s “admission” is wholly speculative. Her statement does not constitute evidence that she
{¶21} The officers “guessed” that Appellant‘s behavior and lack of body control was the result of methamphetamine use because she allegedly demonstrated behavior consistent with use of that drug. While Appellant did fail her field sobriety test, this fact was insufficient for conviction in each of the above cited cases, as there can be many causes behind certain behaviors. For this reason also, testimony that a defendant‘s behavior was consistent with use of a drug is also insufficient to support conviction under this statute. There is no evidence in this case that Appellant‘s behavior could only be caused by methamphetamine, despite evidence of clear impairment. And similar to the above cited cases, a search of Appellant‘s vehicle and person did not reveal any contraband.
{¶22} The state contends that Trooper Myers’ examination report provides circumstantial evidence that Appellant was under the influence of methamphetamine. However, this finding is contradicted by the report itself and by Trooper Myers’ own testimony. Trooper Myers testified that methamphetamine would be expected to show its effects for up to twelve hours after use. Specifically, the state asked Trooper Myers if methamphetamine could cause a person to show its effects for several days, and he answered, “[m]ethamphetamines can show effects for up to 12 hours. The initial effect is quick, but overall effects can last for 12 hours.” (Trial Tr., p. 153.)
{¶23} Appellant said she had ingested something “not prescribed” the day before. Based on Trooper Myers’ testimony, the effects of methamphetamine would not be expected to be apparent after twelve o‘clock noon even if Appellant took the drug as late
{¶24} In addition, Trooper Myers conceded both in his report and in his testimony that Appellant showed signs that were completely inconsistent with use of a CNS stimulant such as methamphetamine, and did not support a conclusion that she was under the influence of a CNS stimulant. For instance, Trooper Myers testified that a CNS stimulant would be expected to raise a person‘s body temperature. Appellant‘s body temperature was only 95.8 degrees Fahrenheit. While the state claims, without evidence, that the thermometer used is less than accurate, it is the thermometer that Trooper Myers, a DRE expert, chose to use during his evaluation. The state cannot now use the allegation of inaccuracy against Appellant, who had no choice in which instrument was used. Trooper Myers also testified that Appellant exhibited a “lack of convergence” which also did not support a finding that she used a CNS stimulant. Trooper Myers conceded that Appellant‘s muscle tone was flaccid and CNS stimulants cause rigid muscle tone.
{¶25} While Trooper Myers characterized Appellant‘s pulse rate as high, which may indicate use of a CNS stimulant, her pulse readings were: 90, 100, and 90. Two of these readings are within the normal range. Trooper Myers relied on his interpretation
{¶26} While the state urges that obtaining warrants for chemical testing is cumbersome in terms of both time and expense, the state‘s interests cannot come at the expense of nullifying a defendant‘s well-established rights. It is clear that this statute and all relevant caselaw place the burden on law enforcement to obtain a chemical test. If not, they face a substantial burden to convict under this statute absent a clear admission to use of a specific drug of abuse or the existence of physical evidence showing a specific drug of abuse.
{¶27} Because law enforcement did not obtain a chemical test result, no contraband was found in the vehicle or on Appellant‘s person, Appellant did not admit to use of a specific drug (a drug of abuse), and no other evidence was presented to demonstrate her impairment was caused by a specific drug of abuse, Appellant‘s first assignment of error has merit and is sustained.
ASSIGNMENT OF ERROR NO. 2
THE COURT COMMITTED PREJUDICIAL ERROR BY GIVING JURY INSTRUCTIONS ON ISSUES THAT WERE NOT SUPPORTED BY EVIDENCE IN THE RECORD AND BY ALLOWING THE JURY TO DECIDE AN ISSUE OF LAW.
{¶29} In response, the state appears to argue that
{¶30} Because we are vacating Appellant‘s conviction for the reason that the state presented insufficient evidence to support a conviction pursuant to this statute, this assignment of error is moot.
Conclusion
{¶31} Appellant argues that the state failed to present sufficient evidence to prove that she was impaired by a drug of abuse at the time of a traffic stop. In addition, she argues that the trial court erroneously instructed the jury on drug of abuse without evidence to show that methamphetamine is a drug of abuse. For the reasons provided, Appellant‘s arguments have merit and the judgment of the trial court is reversed and Appellant‘s conviction is vacated.
Donofrio, P.J., concurs.
D‘Apolito, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.