Willowick v. OsborneWillowick v. Osborne
Patrick D. Quinn, Quinn Legal Associates, 2802 SOM Center Road, Suite 102, Willoughby, OH 44094, and Joseph Hada, 1392 SOM Center Road, Mayfield Heights, OH 44124 (For Defendant-Appellant).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Appellant, Christopher John Osborne (“Mr. Osborne“), appeals the judgment of the Willoughby Municipal Court denying his motion to suppress following his pleas of no contest to and convictions for speeding and two counts of operating a vehicle under the influence of alcohol (“OVI“).
{¶2} Mr. Osborne argues (1) the police officer did not have reasonable suspicion to justify field sobriety tests, (2) the City of Willowick (the “city“) did not establish that the
{¶3} After a careful review of the record and pertinent law, we find (1) the police officer‘s decision to conduсt field sobriety tests was justified by specific, articulable facts, (2) any possible error in finding substantial compliance with NHTSA standards was harmless, (3) the officer had probable cause to arrest Mr. Osborne for OVI, (4) Mr. Osborne‘s motion to suppress did not provide the city with adequate notice of the issues in dispute in relation to the breath test; and (5) with respect to Mr. Osborne‘s specific challenges to the breath test, the city demonstrated substantial compliance.
{¶4} For the reasons that follow, we affirm the judgment of the Willoughby Municipal Court.
Substantive and Procedural History
{¶5} On January 11, 2018 at approximately 1:27 a.m., Officer Jacob Cook (“Officer Cook“) of the Willowick Police Department observed Mr. Osborne‘s vehicle traveling westbound on State Route 2 in the City of Willowick, Ohio, at a rate of speed of 88 m.p.h. in a 60 m.p.h. zone. Officer Cook initiated a traffic stop for the speeding violation, and Mr. Osborne pulled over to the left side of the roadway rather than the right side.
{¶6} After approaching the driver‘s side window of the vehicle, Officer Cook detected the odor of alcoholic beverage and slightly slurred speech. Mr. Osborne admitted he had been at the Handle Bar in the City of Eastlake where he drank at least
{¶7} Officer Cook instructed Mr. Osborne to exit the vehicle so he could conduct field sobriety tests. Officer Cook proceeded to administer the horizontal gaze nystagmus (“HGN“) test, where he observed all six clues of impairment. He next administered the one-leg stand, where he observed two clues of impairment, although this did not constitute a failed test. Finally, he administered the walk-and-turn, where he observed six clues of impairment. Officer Cook placed Mr. Osborne under arrest for OVI and took him to the police station.
{¶8} At the police station, Mr. Osborne provided two breath samples on the Intoxilyzer 8000 following the expiration of a 20-minute observation period. During the collection of both samples, Officer Cook observed that Mr. Osborne‘s breath alcohol concentration (“BAC“) was measuring above 0.190.
{¶9} The printer attached to the Intoxilyzer failed to print the test results immediately following the test. Therefore, Officer Cook reported on the applicable state reporting form (BMV-2255) that Mr. Osborne‘s BAC test result was 0.190. After Mr. Osborne posted bond and was released, another officer was able to retrieve a printout of the test results from the Intoxilyzer‘s internal printer, which showed a BAC of 0.201. Officer Cook crossed out “.190” on the BMV-2255, wrote “.201,” and initialed it.
{¶10} Mr. Osborne was charged with OVI in violation of
{¶11} After several continuances and a change of counsel, Mr. Osborne filed a motion to suppress, alleging that the police did not have reasonable suspicion to stop his
{¶12} At the hearing on the motion, Mr. Osborne waived his challenge to the officer‘s initial stop of his vehicle. Following the hearing, the trial court issued a judgment entry denying Mr. Osborne‘s motion to suppress. The trial court found that the initial traffic stop was justified based on the officer‘s observation of the speed violation and that the officer possessed reasonable and articulable suspicion to continue the detention of Mr. Osbornе and require field sobriety testing based on the odor of alcohol, slurred speech, the time of night, excessive speed, Mr. Osborne‘s admission to consuming alcoholic beverages prior to driving, and the officer‘s previous experience in dealing with drunk drivers.
{¶13} The trial court also found that the city established substantial compliance regarding the field sobriety tests, and they were admissible at trial as to the officer‘s observations. The trial court noted that the tests were not conclusive as evidence of impairment, since the one-leg stand was not a failed test.
{¶14} The trial court further found that probable cause existed for Mr. Osborne‘s arrest based on his excessive speeding, the odor of alcohol, admission of drinking alcoholic beverages, observations during the field sobriety testing, and slurred speech. With regard to the breath test, the trial court referenced Mr. Osborne‘s “boilerplate” motion to suppress but found that the city had met its burden of substantial compliance.
{¶15} Mr. Osborne subsequently entered pleas of no contest to the three charges. As part of his sentence, the trial court imposed three days in jail.
{¶17} Mr. Osborne raises the following four assignments of error:
{¶18} “[1.] The trial court erred in finding that reasonable articulable suspicion existed for the officer to expand the scope of the investigation.
{¶19} “[2.] The trial court erred in finding that the city proved that the officer administered the standardized field sobriety tests in substantial compliance with the NHTSA standards in effеct at the time the tests were given pursuant to
{¶20} “[3.] The trial court erred in finding that the city proved that the officer had probable cause to arrest the defendant in light of the admiisble [sic] evidence.
{¶21} “[4.] The trial court erred in finding that the city proved the city showed substantial compliance with the
Jurisdiction
{¶22} Although Mr. Osborne pleaded no contest to the charges against him, a plea of no contest does not waive a defendant‘s appeal from an adverse ruling on a motion to suppress.
Standard of Review
{¶23} 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, ¶8. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Id.,
Reasonable Suspicion
{¶24} In his first assignment of еrror, Mr. Osborne claims Officer Cook was not justified in requiring him to perform field sobriety tests. We disagree.
{¶25} The
{¶26} Mr. Osborne does not contest the propriety of the initial stop. Rather, he claims that once stopped, Officer Cook improperly detained him in order to conduct field sobriety tests.
{¶28} “(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect‘s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect‘s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or more significantly, on the suspect‘s person or breath; (8) the intensity of that odor, as described by the officer (‘very strong,’ ‘strong,’ ‘moderate,’ ‘slight,’ etc.); (9) the suspect‘s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect‘s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.” Id. at fn. 2.
{¶29} A reviewing сourt may consider all these factors, together with the officer‘s previous experience in dealing with impaired drivers, in determining whether the officer acted reasonably. Id. Courts generally defer to the law enforcement officer‘s judgment in deciding to conduct field sobriety tests when the officer‘s decision was based on a number of factors. State v. Trimble, 11th Dist. Portage No. 2010-P-0078, 2011-Ohio-4473, ¶14, citing Evans at 63.
{¶31} “Where a non-investigatory stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication, such as an admission of having consumed alcohol, reasonable suspiсion exists.” (Citations omitted.) State v. Wiesenbach, 11th Dist. Portage No. 2010-P-0029, 2011-Ohio-402, ¶24.
{¶32} Mr. Osborne cites this court‘s decision in Brickman, supra, in support of his argument that Officer Cook did not have reasonable suspicion. In Brickman, we held that an officer did not have reasonable suspicion to administer sobriety tests based on a suspect‘s (1) driving 20 miles per hour over the speed limit (55 mph in a 35 mph zone), (2) smelling “mildly” of alcohol, and (3) admission that he “had a beer.” Id. at *3. However, we noted that the officer‘s decision was not “based on a number of factors set forth in
{¶33} Mr. Osborne also cites a line of cases originating from the Second District. In State v. Spillers, 2d Dist. Darke No. 1504, 2000 WL 299550 (Mar. 24, 2000), the Second District held an officer did not have reasonable suspicion to administer sobriety tests based on (1) three or four “de minimis” lane violations, followed by an interval in which the suspect drove home with no traffic violations or remarkable driving, (2) a slight odor of alcohol on the suspect, which was possibly beer, and (3) the suspect‘s admission to consuming “a couple” of beers. Id. at *3.
{¶34} In State v. Dixon, 2d Dist. Greene No. 2000 CA 30, 2000 WL 1760664 (Dec. 1, 2000), the Second District, citing Spillers, held an officer did not have reasonable suspicion to administer sobriety tests based on (1) the time of night (2:20 a.m.), (2) the susрect‘s glassy, bloodshot eyes, (3) an odor of alcohol on the suspect‘s person, and (3) the suspect‘s admission of having consumed one or two beers. Id. at *2. The court noted that the officer did not observe any erratic driving prior to administering field sobriety tests. Id.
{¶35} In State v. Swartz, 2d Dist. Miami No. 2008 CA 31, 2009-Ohio-902, the Second District, citing Spillers and Dixon, held an officer did not have reasonable suspicion to administer sobriety tests based on (1) a de minimis traffic violation (failure to signal), (2) the suspect‘s glassy, bloodshot eyes, and (2) an unspecified odor of alcohol. Id. at ¶16. The court noted that the officer did not observe any erratic driving prior to administering field sobriety tests. Id.
{¶36} Similarly, in Whitehouse v. Stricklin, 6th Dist. Lucas No. L-10-1277, 2012-Ohio-1877, the Sixth District, citing Spillers and Dixon, held a state trooper did not have
{¶37} In State v. Reed, 7th Dist. Belmont No. 05 BE 31, 2006-Ohio-7075, the Seventh District, citing Dixon and Spillers, held an officer did not have reasonable suspicion to administer sobriety tests based on (1) a slight smell of alcohol on the suspect, (2) the suspect‘s red, glassy eyes, and (3) the suspect‘s admission of drinking two beers. Id. at ¶12. The court noted that the officer did not witness a moving violation or erratic driving, and the suspect‘s speech was not impaired. Id.
{¶38} Finally, in State v. Derov, 7th Dist. Mahoning No. 07 MA 71, 2009-Ohio-5513, the Seventh District, relying on Dixon and Reed, held a state trooper did not have reasonable suspicion to administer sobriety tests based on (1) the time of night, (2) the suspect‘s red glassy eyes, and (3) a strong smell of alcohol coming from the suspect‘s person. Id. at ¶15. The court noted that the trooper did not witness any erratic driving or notice any signs of physical impairment. Id.
{¶39} The above cases are factually distinguishable because Mr. Osborne demonstrated actual signs of impairment. He was not stopped for a de minimis traffic violation but for driving 88 m.p.h., which was 28 m.p.h. over the speed limit. Mr. Osborne also stopped his car in an unusual manner after Officer Cook initiated the traffic stop. In addition to bloodshot eyes and emanating an odor of alcohol, Mr. Osborne exhibited slurred speech. Further, Mr. Osborne did not claim to have had only a beer or two. He admitted that he had left a local bar where he recently drank at least three Long Island Iced Teas, which are mixed drinks comprised of various hard liquors.
{¶41} We conclude that the seven Evans factors stated above, together with the Officer Cook‘s previous experience and training regarding impaired drivers, as referenced in the record, demonstrated a justifiable reasonable suspicion to detain Mr. Osborne after the initial stop to conduct field sobriety tests.
{¶42} Mr. Osborne‘s first assignment of error is without merit.
Field Sobriety Tests
{¶43} In his second assignment of error, Mr. Osborne claims the trial court erred in finding that the city met its burden of proof that Officer Cook administered the field sobriety tests in substantial compliance with the NHTSA standards in effect at the time the tests were given.
{¶44} An officer may testify concerning the results of a field sobriety test administered in substantial compliance with the testing standards. (Emphasis added.) State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶9. Specifically,
{¶45} However, a law enforcement officer may testify at trial regarding observations made during a defendant‘s performance of nonscientific standardized field sobriety tests. (Emphasis added.) Schmitt at ¶15.
{¶46} Mr. Osborne alleges that the state did not produce sufficient evidence of the applicable NHTSA standards. In addition, he alleges numerous instances of noncompliance with the NHTSA manual with respect to all three field sobriety tests. However, we do not need to determine whether Officer Cook‘s testimony demonstrated substantial compliance with the applicable standards.
{¶47} Although the trial court found that the field sobriety tests “were administered in substantial compliance,” it concluded that the tests were “admissible at trial as to the officer‘s observations.” (Emphasis added.) Significantly, the trial court did not rule that the test results were admissible at trial.
{¶48} Similarly, in determining that probable cause existed for Mr. Osborne‘s arrest, the trial court only referenced Officer Cook‘s observations during the field sobriety testing, not the test results. As demonstrated below, the totality of the facts and circumstances, without reference to the field sobriety tests, support a finding of probable cause to arrest Mr. Osborne for OVI.
{¶49} Therefore, even if the trial court erred in finding substantial compliance, such error was harmless. State v. Duncan, 11th Dist. Lake No. 2004-L-065, 2005-Ohio-7061, ¶26 (“the state‘s failure to introduce the standard and prove substantial compliance
{¶50} Mr. Osborne‘s second assignment of error is without merit.
Probable Cause
{¶51} In his third assignment of error, Mr. Osborne claims Officer Cook did not have probable cause to arrest him for OVI. We disagree.
{¶52} In determining whether the police had probable cause to arrest an individual for OVI, courts consider whether, at the moment of arrest, the police had sufficient information, derived from a reasonable trustworthy source of facts and circumstances, to cause a prudent person to believe that the suspect was driving under the influence. State v. Homan, 89 Ohio St.3d 421, 427 (2000), citing Beck v. Ohio, 379 U.S. 89, 91 (1964) and State v. Timson, 38 Ohio St.2d 122, 127 (1974). In making this determination, courts examine the “totality of facts and circumstances surrounding the arrest.” Id. The totality of the circumstances can support a finding of probable cause to arrest, even where no field sobriety tests were administered or where the tеst results are excluded. Id.
{¶53} Even excluding the results of the field sobriety tests, the totality of the facts and circumstances in this case provided ample probable cause for Officer Cook to arrest Mr. Osborne for OVI. See id. (probable cause found where officer observed erratic driving, the suspect had red, glassy eyes and breath that smelled of alcohol, and the suspect admitted to consuming alcoholic beverages); State v. Wojewodka, 11th Dist. Portage No. 2009-P-0029, 2010-Ohio-973, ¶20 (probable cause found where suspect had red and watery eyes and slow speech, the officer smelled a strong odor of alсohol, and the suspect admitted to consuming alcohol); State v. Penix, 11th Dist. Portage No. 2007-P-0086, 2008-Ohio-4050, ¶30 (probable cause found where suspect sped on snowy, wet road conditions during the early morning hours, had an odor of alcohol emanating from his vehicle and person, admitted to drinking, and admitted to being at a bar); State v. Dwyer, 11th Dist. Lake No. 2001-L-075, 2002 WL 255498, *4 (Feb. 22, 2002) (probable cause found where officer observed erratic driving, the suspect had bloodshot and glassy eyes, breath that smelled of alcohol, and slurred speech, and the suspect admitted to consuming alcoholic beverages).
{¶54} Mr. Osborne cites the Fifth District‘s decision in State v. Kopp, 5th Dist. Licking No. 16-CA-96, 2017-Ohio-4428, in support of his argument that Officer Cook did not have probable cause. However, Kopp is clearly distinguishable. The officer in Kopp pulled the suspect over for an expired license, not for any traffic or moving violations. Id.
{¶55} Mr. Osborne‘s third assignment of error is without merit.
Breath Test
{¶56} In his fourth assignment of error, Mr. Osborne claims the city did not demonstrate substantial compliance with the
Legal Standards
{¶57}
{¶58} The issue of whether “[t]he bodily substance withdrawn [was] analyzed in accordance with methods approved by the director of health” is not a jury question and is to be decided by the court prior to trial. State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, ¶20. To make that determination, a trial court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial. (Citations omitted.) Id. at ¶14.
{¶59} Courts apply a burden-shifting procedure to govern the admissibility of alcohol test results. (Citation omitted.) Burnside at ¶24. The defendant must first
{¶60} 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 regulations prescribed by the Director оf Health. Id. The substantial compliance standard excuses only errors that are clearly de minimis. Id. at ¶34.
{¶61} 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. (Citation omitted.) Id. at ¶24.
“Shotgun” Motion to Suppress
{¶62} In his motion to suppress, Mr. Osborne alleged generally that the breath test was not administered in accordance with
{¶63} Pursuant to
{¶65} In Shindler, the defendant filed a motion to suppress a breath test that was a virtual copy of a sample motion contained in a legal handbook. Id. at 57. The court found that the defendant‘s motion was sufficient because in аddition to setting forth a list of legal reasons for suppression, the defendant also set forth “underlying facts.” Id.
{¶66} In Codeluppi, the defendant‘s motion to suppress alleged that the officer had not conducted field sobriety tests in substantial compliance with NHTSA guidelines as required by
{¶67} Here, Mr. Osborne‘s motion contained no factual basis nor was it targeted toward one specific code section. Rather, Mr. Osborne employed a “shotgun approach achieved by merely ‘wrapping the administrative code in a folder and filing it.‘” (Citation omitted.) See State v. Stoner, 6th Dist. Ottawa No. OT-05-042, 2006-Ohio-2122, ¶26; State v. Kuzma, 11th Dist. Portage No. 93-P-0019, 1993 WL 545129, *2 (Dec. 3, 1993). By alleging a violation of everything, Mr. Osborne alleged a violation of nothing in particular. See State v. Tyner, 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, ¶13.
{¶68} Such motions do not give the prosecutor or the court adequate notice of the issues truly in dispute. See Tyner at ¶15 (defendant did not meet his burden where he “filed а boilerplate memorandum that * * * unreasonably alleged every conceivable
{¶69} Therefore, we conclude Mr. Osborne did not meet his burden to adequately plаce the city on notice of the need to present suppression hearing testimony establishing compliance with
{¶70} Further, at the suppression hearing, Mr. Osborne raised only two specific challenges to the breath test. Mr. Osborne‘s failure to assert additional challenges constitutes a waiver of such issues for purposes of appeal. See State v. Box, 10th Dist. Franklin No. 16AP-371, 2017-Ohio-1138, ¶13; Xenia, supra, at 218 (“Failure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal“).
Substantial Compliance
{¶71} Even if Mr. Osborne properly placed the city on notice regarding the specific issues he raised at the suppression hearing, the city established substantial compliance.
{¶72} The first issue involved whether the Intoxilyzer ran a “dry gas control” in between Mr. Osborne‘s two breath samples. Officer Cook testified that after Mr. Osborne provided his first breath sample, he took the air hose and put it back on the holster so the machine could run a dry gas control. He then took the hose back out and had Mr. Osborne provide his second sample. When Mr. Osborne‘s counsel presented him with the test
{¶73}
{¶74} The second issue related to the printout of Mr. Osborne‘s test results. Officer Cook testified that the printer attached to the Intoxilyzer failed to print the test results immediately following Mr. Osborne‘s test. After Mr. Osborne posted bond and was released, another officеr was able to retrieve a printout of the test results from the Intoxilyzer‘s internal printer, which showed a BAC of 0.201. Officer Cook also identified the printout at the suppression hearing. Although the printout is not part of the record for our review, the trial court stated in its judgment entry that the printout showed a BAC of 0.201 and contained no error reports.
{¶75} Accordingly, the trial court‘s finding of substantial compliance is supported by competent, credible evidence. Further, Mr. Osborne did not attempt to demonstrate that he was prejudiced by anything less than strict compliance.
{¶76} Mr. Osborne‘s fourth assignment of error is without merit.
{¶77} Based on the foregoing, the judgment of the Willoughby Municipal Court is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.