State v. RussoState v. Russo
Dated: December 30, 2009
CARR, Presiding Judge.
{¶1} Appellant, Anthony Russo, appeals the judgment of the Medina Municipal Court which denied his motion to suppress. This Court affirms.
I.
{¶2} On July 20, 2008, Russo was cited for speeding in violation of
{¶3} The trial court held a hearing on the suppression motion. On December 2, 2008, the trial court issued its judgment, granting the motion in part, and denying it in part. The trial court ordered that the results of the horizontal gaze nystagmus test would be inadmissible at trial. However, it denied the motion to suppress in regard to the remaining field sobriety tests and the
{¶4} Pursuant to plea negotiations, Russo entered a plea of no contest to driving under the influence of alcohol pursuant to
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN DENYING ANTHONY L. RUSSO‘S MOTION TO SUPPRESS THE BREATH TEST BECAUSE SAID TEST WAS CONDUCTED PURSUANT TO AN UNLAWFUL WARRANTLESS ARREST FOR WHICH THE ARRESTING OFFICERS LACKED PROBABLE CAUSE TO EFFECTUATE, IN CONTRAVENTION OF THE FOURTH AMENDMENT OF THE U.S. CONSTITUTION AND OHIO CONSTITUTION ARTICLE I, SECTION 14.”
{¶5} Russo argues that the trial court erred by denying his motion to suppress the breath test because the police lacked probable cause to arrest him. This Court disagrees.
{¶6} “The review of a motion to suppress presents a mixed question of fact and law for an appellate court.” State v. Farris, 9th Dist. No. 03CA0022, 2004-Ohio-826, at ¶7, quoting State v. Long (1998), 127 Ohio App.3d 328, 332. This Court must accept the trial court‘s factual determinations made during the suppression hearing, so long as they are supported by competent and credible evidence. Farris at ¶7; State v. Robinson (Oct. 25, 2000), 9th Dist. No. 19905. This Court, however, must review the trial court‘s application of the law to those facts de novo. Farris at ¶7; State v. Searls (1997), 118 Ohio App.3d 739, 741. Moreover, “this Court reviews a
{¶7} As a preliminary matter, we note that Russo does not challenge the propriety of the initial traffic stop. This Court has repeatedly recognized that “[a]n officer may stop a vehicle to investigate a suspected violation of a traffic law.” Sunday at ¶29, quoting Akron v. Tomko (Nov. 3, 1999), 9th Dist. No. 19253. Russo does not dispute that Sgt. Bruce Linville of the Hinckley Township Police Department stopped him for speeding. Accordingly, the initial traffic stop was not improper.
{¶8} Russo‘s argument on appeal is that, if this Court concludes that the field sobriety tests are not admissible for purposes of establishing probable cause, then the State has failed to meet its burden of proving that, under a totality of the facts and circumstances as they existed at the time of the arrest, Sgt. Linville had probable cause to arrest him without a warrant. In effect, Russo asserts that only the results of field sobriety tests, administered in substantial compliance with standardized procedures, can support probable cause to arrest a suspect for driving under the influence of alcohol. Russo‘s argument is premised on inaccurate statements of law.
{¶9} Before an officer may effectuate a warrantless arrest, he must have probable cause that the suspect is engaging in criminal activity. State v. McGinty, 9th Dist. No. 08CA0039-M, 2009-Ohio-994, at ¶11. An officer has probable cause to arrest a person for driving under the influence of alcohol “if, at the moment of the arrest, the totality of the facts and circumstances within the officer‘s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the suspect had violated
{¶10} This Court has stated that the totality of the facts and circumstances can support probable cause for arrest even in the absence of the administration of field sobriety tests. McGinty at ¶20; see, also, Kurjian at ¶18, citing State v. Homan (2000), 89 Ohio St.3d 421, 427. In fact, we have held that “the totality of the facts and circumstances can support a finding of probable cause to arrest even when the results оf the field sobriety tests must be excluded for lack of compliance to standardized procedures.” Sunday at ¶32, citing Akron v. Buchwald, 9th Dist. No. 21433, 2003-Ohio-5044, at ¶14. Assuming, without deciding, that the field sobriety tests were not administered in substantial compliance with the regulations, the police still had probable cause to arrest Russo.
{¶11} Sgt. Linville stopped Russo‘s vеhicle at approximately 2:12 a.m. on July 20, 2008. He testified that he had been a police officer for twelve years. The officer testified that when he approached Russo‘s vehicle, he “immediately smelled the odor of an alcoholic beverage[,]“and noted that Russo‘s eyes were “bloodshot and glossy[,]” thereby leading him to believe that Russo had been consuming alcohol that evening. He testified that, when he asked Russo whether he had consumed any alcohol that evening, Russo replied that he had had “a few” at his friend‘s house.
{¶12} “Regardless of a challenge to field sоbriety tests, an officer may testify regarding his observations made during administration of the tests.” State v. Griffin, 12th Dist. No. CA2005-05-118, 2006-Ohio-2399, at ¶11, citing State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, at ¶14-15. In addition to his observations above, Sgt. Linville testified that Russo began the one leg stand twice, putting his foot down within a few seconds each time. The officer testified that Russo swayed and lost his balance during the walk and turn test. As in Sunday, the totality of the facts and circumstances available to Sgt. Linville - the late hour, Russo‘s bloodshot and
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN DENYING ANTHONY L. RUSSO‘S MOTION TO SUPPRESS THE BREATH TEST BECAUSE SAID TEST WAS NOT ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH THE REGULATIONS SET FORTH IN OAC 3701-53-04(B).”
{¶13} Russo argues that the trial court erred by denying his motion to suppress the results of the breath test because it was not administered in substantial compliance with the requirements of
{¶14} This Court‘s standard of review in regard to a trial court‘s ruling on a motion to suppress is set forth above.
{¶15} The version of
{¶16} In his motion to suppress, Russo generally asserted that “[a]n instrument check was nоt conducted at the time or in the manner required by
{¶17} As this issue has evolved, “courts have applied a burden-shifting procedure to govern the admissibility of alcohol-test results.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶24. The Burnside court clarified:
“The defendant must first challenge the validity of the alcohol test by way of a pretrial motion to suppress; failure to file such a motion waives the requirement on the state to lay a foundation for the admissibility of the test results. After a defendant challenges the validity of test results in a pretrial motion, the state has the burden to show that the test was administered in substantial compliance with the regulatiоns prescribed by the Director of Health. Once the state has satisfied this burden and created a presumption of admissibility, the burden then shifts to the defendant to rebut that presumption by demonstrating that he was prejudiced by anything less than strict compliance.” (Internal quotations and citations omitted.) Id.
{¶18} In this сase, Russo preserved the issue for appeal by challenging the validity of the alcohol test in a pretrial motion to suppress. Accordingly, the State assumed the burden of showing that the test was administered in substantial compliance with the OAC.
{¶19} Sgt. Linville testified that he prepared State‘s Exhibit 3, which сonsists of his affidavit and a certified packet for the Intoxilyzer 5000, the breath testing instrument used to test Russo‘s breath alcohol content on July 20, 2008. He testified that the instrument was calibrated before its first use. He averred in his affidavit that the instrument was calibrated on July 17, 2008, and again on July 21, 2008. The instrument check forms reference “Rule 3701-53-04.” Accordingly, the State presented evidence of the instrument‘s timely calibration and, therefore,
{¶20} On cross-examination, Russo failed to question the officer regarding whether the instrument had been removed for service or repair between its calibration on July 17, and Russo‘s breath test on July 20. Moreover, Russo failed to point to any facts obtained through discovery to support any allegation that the instrument may have been removed for service or repair in the interim. It was only during his closing argument that Russo for the first time asserted that the State had not presented sufficient testimony to show that there had been no repairs which would have required recalibration before his breath test. By failing to present any evidence that the instrument may have been rеmoved for service or repair after the July 17 calibration, but before the July 20 breath test, after the State demonstrated timely calibration in substantial compliance with
III.
{¶21} Russo‘s assignments of error are overruled. The judgment of the Medina Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a nоtice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J. CONCURS
BELFANCE, J. CONCURS IN PART, AND DISSENTS IN PART, SAYING:
{¶22} I respectfully dissent from the majority‘s resolution of the second assignment of error. We have acknowledged that analysis of “[r]esults of alcoholic concentration tеsts are admissible upon a showing of substantial compliance with the regulations of the administrative code.” State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, at ¶13. We have also stated that “[o]nce the state has established substantial compliance with the administrative rules, the burden then shifts to the defendant to demonstrate that he would be prеjudiced by anything less than literal compliance.” (Emphasis added.) Id. Thus, our precedent establishes that the State has the burden to establish substantial compliance with the administrative rules.
{¶23} In this matter, the Appellant specifically challenged the State‘s compliance with
APPEARANCES:
VINCENT C. RUSSO, Attorney at Law, for Appellant.
ARTHUR E. FOTH, Medina City Prosecutor, for Appellee.