State v. MontelauroState v. Montelauro
Rendered on December 20, 2011
Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, City Prosecutor, and Melanie R. Tobias, for appellee.
Eric E. Willison, for appellant.
APPEAL from the Franklin County Municipal Court.
BRYANT, P.J.
{¶1} Defendant-appellant, Joseph A. Montelauro, appeals from a judgment of the Franklin County Municipal Court finding him guilty, (1) pursuаnt to no contest plea, of one count of operating a vehicle while under the influence of alcohol, drugs of abuse, or both (OVI) and one count of driving with a prohibited breath alcohol content (per se OVI), as well as (2) pursuant to guilty plea, one count of driving with expired tags. Defendant assigns a single error:
The Trial Court erred when it failed to suppress all evidence after the initial stop of the Defendant, including but not limited to the results of field sobriety testing, statements made during field sobriety testing, the arrest, and the results of the blood alcohol content of the Appellant together with any evidence gathered thereafter.
Because the trial court properly concluded the police officer who stopped defendant had probable cause to stop defendant for an expired tags violation, had reasonable suspicion to ask defendant to perform field sobriety tеsts, and had probable cause to arrest defendant as a result of those field sobriety tests, we affirm.
I. Facts and Procedural History
{¶2} On October 4, 2010 at 1:46 a.m., Officer Erick Moynihan stopped defendant for driving with expired tags on his vehicle, a violation of
{¶3} In the motion to suppress, defendant asserted the officer had no lawful cause to stop defendant, to detain defendant, or to arrest him. Dеfendant thus asked the court to suppress the results of tests of defendant‘s coordination or sobriety, the results of any administered chemical tests, the officer‘s observations and opinions regarding defendant‘s sobriety, and any statements defendant made. At a pretrial the trial court conducted, defendаnt withdrew his motion as to the initial stop, but continued to assert
{¶4} In resolving the motion, the court noted defendant did not dispute that the officer validly stopped defendant for driving with expired tags. As to defendant‘s contentions that the officer lacked reasonable suspicion to further detain and probable cause to arrest, the court concluded the information the officer gathered on stopping defendant for driving with expired tags gave the officer reasonable suspicion to administer field sobriety tests, and the results of those tests supported probable cause to arrest defendant. With those determinations, defendant changed his plea to no contest to the OVI and per se OVI charges, and to guilty to the expired tags violation. Finding defendant guilty, the trial court sentenced defendant accordingly. Defendant appeals, contesting the trial court‘s rеsolution of his motion to suppress.
II. Assignment of Error—Motion to Suppress
{¶5} Defendant‘s single assignment of error asserts the trial court should have suppressed all evidence the officer gathered after initially stopping defendant, including the results of field sobriety tests, defendant‘s statements made during the testing, and results of alcohol testing administered to dеfendant.
A. Applicable Law
{¶6} In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Curry (1994), 95 Ohio App.3d 93, 96. A reviewing court is bound to accept the trial
{¶7} The
{¶8} A person has been seized for purposes of the
B. The Officer‘s Testimony
{¶9} Officer Erick Moynihan, with the Blendon Township Division of Police, was the sole witness at the motion to suppress hearing. According to his testimony, he was on patrol on October 4, 2010, when he first noticеd defendant at a traffic light at Dempsey Road and State Route 3. A random check of defendant‘s license plate on the officer‘s in car computer revealed the tag had expired. After double checking that he had entered the correct tag number into the computer, the officеr activated his red and blue overhead lights and performed a traffic stop on the vehicle. Defendant pulled over in just a few seconds, and the officer informed him the tags had expired. Defendant acknowledged that fact and advised the officer he was trying to save money for his upcoming wedding.
{¶10} Once the window was down, the officer immediately detected an obvious odor of alcoholic beverage emitting from the vehicle and noted that [defendant‘s] eyes were glassy and bloodshot. (Tr. 14-15.) The officer acknowledged during his testimony that he did not feel comfortable saying strong, moderate or light with respеct to the odor of alcohol. (Tr. 15.) As he explained, To me it‘s just obviously an odor of alcoholic
{¶11} The officer testified defendant was polite, cooperative, and able to provide a driver‘s license. When the officer asked defendant if he had been drinking, defendant said he had consumed one Long Island Iced Tea. The officer testified a Long Island Iced Tea is a particularly strong alcoholic beverage made of several different alcоhols. (Tr. 16.) He described it as a more potent drink than some others and noted defendant was a slender male, not large by any means.
{¶12} The officer asked defendant from where he came, and defendant said he was coming from Cushions, a billiards bar in Blendon Township. The officer knew the drinks at the bar were half-priсe that night. He further knew that when drivers have an obvious odor of alcoholic beverage, glassy and bloodshot eyes, folks tend to admit to having just one or two drinks. And it‘s been noted on more than one occasion, they have many more than that. (Tr. 19-20.) In the end, the officer decided to conduct field sobriety tests оn defendant because defendant was coming from Cushions, drinks were half price that night, defendant admitted to consuming a strong drink, he had an odor of alcohol about his person, and his eyes were glassy and bloodshot.
{¶13} On cross-examination, the officer testified defendant was not driving erratically at the time the оfficer stopped him, did not have slurred speech, was not disheveled or inappropriate in appearance, pulled over almost immediately, and did not fumble with his license. The officer further admitted defendant‘s face was not flushed or red, and defendant was not disoriented, confused, overly еmotional, loud, obnoxious, or aggressive but was polite, respectful, and friendly. Defendant had no trouble
{¶14} Relying heavily on two cases from the Second District and one from the Seventh District, State v. Dixon (Dec. 1, 2000), 2d Dist. No. 2000-CA-30, State v. Spillers (Mar. 24, 2000), 2d Dist. No. 1504, and State v. Derov, 7th Dist. No. 07 MA 71, 2009-Ohio-5513, defendant contends that, on the facts produced at the hearing, the officer lacked reasonable suspicion to conduct field sobriety tests. Defendant‘s reliance on those cases is misplаced for several reasons.
{¶15} Initially, none of the cases emanates from this district and, although they are persuasive authority, they lack the precedential value of cases from this district. Moreover, the cases are factually distinguishable from defendant‘s circumstances. In Derov, the court addressеd an early morning stop where the driver had a strong odor of alcoholic beverage and bloodshot, glassy eyes. Although the court concluded the officer lacked reasonable suspicion to administer field sobriety tests, the court based its conclusion in part on the lack of clarity in the trooper‘s testimony about whether Derov admitted, prior to the officer‘s administering field sobriety tests, that he consumed an alcoholic beverage.
{¶16} Derov relied on Dixon, which in turn relied on Spillers. Spillers involved a de minimus traffic violation where the driver had a slight odor of alcohol and admitted to having consumed one or two beers. The court concludеd the evidence was insufficient, by itself, to trigger reasonable suspicion of DUI, and nominal traffic violations, being common to virtually every driver, add nothing of significance. (Emphasis sic.) In Dixon,
{¶17} Perhaps more detrimental to defendant‘s reliance are subsequent decisiоns from the Second District that appear to reject defendant‘s interpretation of Spillers and Dixon. See State v. Hido, 2d Dist. No. 10CA0046, 2011-Ohio-2560, ¶10, citing State v. Marshall, 2d Dist. No. 2001-CA-35, 2001-Ohio-7081. In State v. Santiago, 2d Dist. No. 2010 CA 33, 2011-Ohio-5292, the court preliminarily pointed out that [w]hether an officer has reasonable articulable suspicion to administer field sobriety tests is a very fact-intensive determination. Id. at ¶13, quoting State v. Wells, 2d Dist. No. 20798, 2005-Ohio-5008, ¶9. As Santiago explained, a court determines the existence of reasonable suspicion of criminal activity by evaluating the totality of the circumstances, considering those circumstances through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. Id., quoting State v. Heard, 2d Dist. No. 19323, 2003-Ohio-1047, ¶14, quoting State v. Andrews (1991), 57 Ohio St.3d 86, 87-88.
{¶18} Although Santiago acknowledged the decisions in Spillers and Dixon, it, like Hido, noted the Second District has held that a strong odor of an alcoholic beverage, without other significant indicia of intoxication, may be sufficient to provide an officer with
{¶19} As is true in the cases that distinguish Spillers and Dixon, the facts here are sufficient to provide reasonable suspicion to conduct field sobriety tests. Although the issue is less clеar than it might otherwise be if the officer had characterized the odor of alcohol as either slight, moderate or strong, the officer nonetheless noted an obvious odor of alcohol, which the trial court concluded was more than slight, defendant‘s admission to drinking Long Island Iced Tea, not one оr two beers, the officer knew drinks were half price that night, and defendant had glassy, bloodshot eyes, all giving the officer a reasonable, articulable suspicion to conduct field sobriety tests.
C. Probable Cause to Arrest
{¶20} In determining whether a police officer has probable cause to arrest a suspect for OVI, a cоurt considers whether, at the moment of arrest, the officer had information within the officer‘s knowledge, or derived from a reasonably trustworthy source, of facts and circumstances sufficient to cause a prudent person to believe the suspect was driving under the influence of alcohol, drugs, or both. State v. Homan (2000), 89 Ohio St.3d 421, 427 (superseded by statute on other grounds); Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225; Perkins at ¶26. In mаking this determination, the trial court examines the totality of facts and circumstances surrounding the arrest. Homan.
{¶21} The officer administered three field sobriety tests to defendant: the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand. The horizontal gaze nystagmus test rendered results of noticeable jerking on еach eye on each of three phases of the test for a total of six out of six possible clues indicating impairment. In the walk-and-turn test, the officer noted defendant attempted to start the test before being instructed to do so, asked after nine steps whether he needed to walk backwards, a question absolutely inconsistent with the instructions, and then turned improperly. (Tr. 30.) In doing so, defendant demonstrated on the walk-and-turn test three of eight clues indicating impairment. He exhibited no clues indicating impairment on the one-leg stand. Based on the results of the tests, the officer estimated defendant had an 80 perсent chance of being over the legal limit in breath alcohol content and so arrested defendant. Given defendant‘s performance of the field sobriety tests, the state presented sufficient evidence to support probable cause to arrest defendant.
III. Disposition
{¶22} Because the officеr had a reasonable, articulable suspicion to support asking defendant to perform field sobriety tests, and because defendant‘s performance on the tests gave the officer probable cause to arrest defendant, we overrule defendant‘s single assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
FRENCH and CONNOR, JJ., concur.
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