State v. Donovan

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[Cite as State v. Donovan, 2003-Ohio-1045.] IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 02CA0052 T.C. CASE NO. 01TRC16031 JAMES DONOVAN : (Criminal Appeal from Municipal Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 7th day of March, 2003. . . . . . . . . . Michael F. Sheils, Prosecuting Attorney; Christopher Hickey, Asst. Pros. Attorney, 50 East Columbia Street, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee Gregory K. Lind, 4 W. Main Street, Suite 415, Springfield, Ohio 45502, Atty. Reg. No. 0055227 Attorney for Defendant-Appellant . . . . . . . . . GRADY, J. {¶1} This case presents two issues. The first is whether the trial court erred when it found that the warrantless stop of Appellant s vehicle was justified by probable cause of a marked lanes violation. The second issue is whether the trial court erred when it denied Defendant s motion to suppress evidence of field sobriety tests that formed a basis for Defendant s subsequent arrest on a DUI charge because the trial court failed to follow the strict compliance rule of State v. Homan, 89 Ohio 2 St.3d 421, 2000-Ohio-212. {¶2} We find no error in the trial court s decision that the stop of Defendant s vehicle was justified. the trial court erred when it However, we find that applied and followed the substantial compliance test that Homan rejected to find that evidence of the field sobriety tests was admissible. Accordingly, we shall reverse Defendant s conviction and remand for further proceedings on the issue. {¶3} Defendant was operating his vehicle westbound on Interstate Route 70 on December 11, 2001, at approximately 4:14 a.m., when he was stopped by Sgt. Joe Luebbers of the Ohio Highway Patrol. Sgt. Leubbers later testified that he observed Defendant commit a marked lanes violation and stopped Defendant in order to cite him on that charge. {¶4} When he engaged Defendant in conversation, Sgt. Luebbers suspected that Defendant might be under the influence of alcohol. He noted that Defendant s eyes were bloodshot and that his breath had a strong odor of alcohol. (T. 11). asked Defendant if he d had anything to drink. he d had a couple. {¶5} Sgt. Luebbers Defendant said (T. 52). Sgt. Luebbers required Defendant to submit to three field sobriety tests: the horizontal gaze nystagmus (HGN) test, a one-leg stand test, and a walk-and-turn test. Based on the result of those tests, Sgt. Luebbers concluded that Defendant was under the influence of alcohol and he arrested Defendant on that charge. {¶6} evidence. Defendant filed a Crim.R. 12(C) The motion had two branches. stop of Defendant s vehicle. motion to 3 suppress The first challenged the The second challenged the probable cause for his arrest on the DUI charge, and specifically the admissibility of the results of field sobriety tests that Sgt. Luebbers performed. The trial court conducted an evidentiary hearing on Defendant s motion and thereafter denied it. {¶7} contest. Defendant changed his plea from not guilty to no The trial court accepted the plea, entered a judgment of conviction, and imposed a sentence pursuant to law. Defendant filed a timely notice of appeal. FIRST ASSIGNMENT OF ERROR {¶8} THE TRIAL COURT ERRED BY FINDING THAT THERE WAS PROBABLE CAUSE TO PULL APPELLANT OVER DESPITE THE ONLY EVIDENCE BEING NON-SPECIFIC TESTIMONY ABOUT THE VEHICLE CROSSING THE LANE MARKINGS. {¶9} a seizure A law enforcement officer s stop of a motor vehicle is for purposes of the Fourth Amendment, and when performed without benefit of a warrant is illegal absent some justification therefore which legal. in When the a law renders Defendant s it reasonable motion to and suppress challenges a warrantless stop, the state has the burden to show the necessary justification. If the state fails to meet that burden, the court must suppress all evidence gathered from and as a result of the stop. {¶10} The State sought to justify the warrantless stop of 4 Defendant s vehicle on the basis of the rule announced in Whren v. United States (1996), 517 U.S. 806, 116. S.Ct. 1769, and Dayton v. Erickson (1996), 76 Ohio St.3d 3. {¶11} Where probable cause occurring, the a police that a stop officer traffic is not That rule holds: stops violation a vehicle has unreasonable based occurred under the or on was Fourth Amendment to the United States Constitution even if the officer had some ulterior motive for making the stop, such as a suspicion that the violator activity. was engaging in more nefarious criminal Erickson, Syllabus by the Court. {¶12} Pretext wasn t an issue here. Rather, the question was whether facts and circumstances Sgt. Luebbers observed concerning Defendant s travel were sufficient to present probable cause of a violation of R.C. 4511.33(A). That section states, in pertinent part: Whenever any roadway has been divided into two or more clearly marked lanes for traffic, . . .[a] vehicle . . . shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such a lane or line until the driver has first ascertained that such movement can be made with safety. {¶13} Sgt. Luebbers testified that he saw Defendant s vehicle weave to the sides of its lane of travel, its tires crossing the lines marking the lane s left and right sides by about one tire width, four distance of times in all. approximately These one half events occurred mile, according within to a Sgt. Luebbers, and as a result caused him to stop Defendant s vehicle to cite him for a violation of R.C. 4511.33(A). {¶14} The trial court portray concluded probable that cause 5 evidence this of a marked was sufficient to lanes violation. Defendant challenges that finding, arguing that the evidence was too unspecific as to how far across the line markers Defendant s vehicle traveled and whether those events were merely momentary or were more substantial. State v. Brite (1997), 120 Ohio He relies on the holdings in App.3d 517; State v. Hiler (1994), 96 Ohio App.3d 271; and State v. Gullett (1992), 78 Ohio App.3d 138. {¶15} Brite, Hiler and Gullett stand for the proposition that de minimus crossings of line markers, absent other evidence of erratic driving or some danger that resulted, are insufficient to portray probable cause of a marked lanes violation sufficient to justify a warrantless stop under Whren and Erickson. Those holdings exhibit some concern that such events are only a pretext for a stop, and should be rejected as such in keeping with the principles and prohibitions of the Fourth Amendment. {¶16} Whren and Erickson rejected a pretext inquiry when probable cause is shown, but they did not lower the standard for probable cause. That standard is whether the police officer possessed information sufficient to cause a prudent person to believe that the particular violation of law at issue was taking place. Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223. {¶17} Since Whren and Erickson were decided, and possibly as a result, officers now often stop a vehicle for a traffic violation that s not ordinarily the basis for a citation at all because it s so trivial. One sometimes employed is a license 6 Another is a failure to signal a turn, even light violation. though no regular particular use of these hazard resulted tactics to from the failure. suspected investigate The drug offenses can only add to the sense of unfairness felt by many persons who live in those parts of a community identified as high drug areas where such stops most often occur. concerns wouldn t seem to apply here. Those same More importantly, however, we believe that the probable cause required for the stop was shown. {¶18} In State v. Schweiterman (Feb. 7, 2003), Darke App. No. 1588, we addressed a claim similar to Defendant s claim that the movements of his vehicle that Sgt. Luebbers observed were insufficient to constitute probable cause of a violation of R.C. 4511.33, stating: {¶19} . . . Ohio s marked lanes statute requires a driver to remain in a single lane as nearly as is practicable. In this context, the word practicable means performable, feasible or possible. 3053. State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio- As the Seventh District explained in Hodge: {¶20} The legislature did not intend for a motorist to be punished when road debris or a parked vehicle makes it necessary to travel outside the lane. Nor, we are quite certain, did the legislature intend this statute to punish motorists for traveling outside their lane to avoid striking a child or animal. equally certain that option the legislature of staying did within not intend their lane We are to at give motorists the their choosing. Common sense dictates that the statute is designed to 7 keep travelers, both in vehicles and pedestrians, safe. The logical conclusion is that the legislature intended only special circumstances to be valid reasons inattentiveness or carelessness. to leave lane, not mere To believe that the statute was intended to allow motorists the option of when they will or will not abide by the lane requirement is simply not reasonable. Id., at 558. Schweiterman, pp. 5-6. We further stated: Indeed, absent any readily apparent cause for a motorist to have strayed from his lane of travel, a police officer reasonably may infer that it was practicable for the motorist to have stayed in one lane. Consequently, Schweiterman committed an apparent traffic violation in the present case, as he crossed the edge line, three times when it appears to have been practicable for him to have stayed entirely within a single lane. Id., at pp. 6-7. {¶21} Sgt. Luebbers testified that Defendant s vehicle crossed the edge lines of his lane of travel not three but four times, weaving from one side to the other in the process. His vehicle crossed the line each time by one tire width, according to Sgt. Luebbers, who also stated that he could see no purpose for those movements. (T. 9). These are, in our view, facts sufficient probable cause to create of an R.C. 4511.33(A) violation that permitted Sgt. Luebbers to stop Defendant under the rule of Whren and Erickson. No Fourth Amendment violation is shown. {¶22} The first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR {¶23} THE COMPLIANCE TRIAL TEST COURT RATHER ERRED BY THE STRICT THAN USING 8 SUBSTANTIAL THE COMPLIANCE TEST WHEN DETERMINING WHETHER OR NOT THE FIELD SOBRIETY TESTS GIVEN IN THIS CASE PROVIDED PROBABLE CAUSE FOR AN ARREST FOR OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL. {¶24} Sgt. Luebbers had Defendant submit to three field sobriety tests: the HGN test of his eyes, the one-leg stand test, and the walk-and-turn test. Based on Defendant s performance as judged by Sgt. Luebbers, and his other observations concerning Defendant bloodshot eyes and an odor of alcohol on his breath, and his admission that he d had a couple of drinks Sgt. Luebbers arrested Defendant on a charge of DUI. {¶25} A warrantlees arrest is illegal and the evidence it produces is subject to suppression absent probable cause believe that the person arrested committed a violation of law. to probable cause circumstances. inquiry looks to all the relevant facts A and When the issue is whether the person arrested is under the influence of alcohol, for purposes of a DUI violation, the person s performance in sobriety circumstances to be considered. tests are important However, {¶26} In order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures. Homan, paragraph one of the Syllabus by the Court. {¶27} Homan rejected a substantial compliance standard in 9 favor of a strict compliance standard for field sobriety tests because it is well-established that in field sobriety testing even minor deviations from severely bias the results. the standardized procedures Id., at p. 426. those results inherently unreliable. Id., can That bias makes at p. 424. {¶28} The motion to suppress that Defendant filed on March 8, 2002, asked the court to suppress evidence of any observations and opinions of law enforcement officers regarding his sobriety or alcohol and or drug level. A handwritten entry on the motion states: 4/12/02: Amended to include non-compliance with the Field Sobriety Tests Standards as set by NHTSA. {¶29} Homan acknowledged the standardized test manuals published by the National Highway Transportation Safety Agency ( NHTSA ) as an authoritative source for the procedures to be followed in field sobriety tests. Homan requires condition for strict compliance admissibility of Homan, at p. 424, note 4. with such evidence procedures of a as a defendant s performance in field sobriety tests when that evidence is offered as proof of intoxication. {¶30} Sgt. Luebbers was questioned extensively in his direct and cross-examination follows and those he concerning the specifically procedures followed performed the three field sobriety tests. he generally when Defendant The State offered no evidence of what the applicable NHTSA standards are. {¶31} In his summation to the court on the motion to suppress, defense counsel pointed to a number of matters which in his opinion demonstrate that Sgt. Luebbers failed to strictly comply with NHTSA standards administered to Defendant. in the field (T. 55-60). sobriety 10 tests he Counsel neither cited the court to the provisions concerned nor offered evidence of the NHTSA standards. {¶32} When the court overruled the motion to suppress it found that there is significant or substantial compliance with the requirements for performing those tests and the court does feel that there was sufficient compliance to allow those tests to be . . . used in evidence. (T. 62). We agree that the trial court erred when it applied the substantial compliance test that Homan rejected requires. instead of the strict compliance test Homan Therefore, we will reverse Defendant s conviction and remand for further proceedings on his motion to suppress. {¶33} The motion to suppress contained sufficient factual allegations to put the court and the prosecutor on notice of Defendant s claim that Sgt. Luebbers failed to strictly comply with applicable standards in ordering Defendant to perform the three field sobriety tests. St.3d 54. State v. Shindler (1994), 70 Ohio The State was then required to offer evidence to rebut the allegation. Xenia v. Wallace (1988), 37 Ohio St.3d 216. That would require some proof of what the standards are, but the State offered none. It might have done so through the testimony of Sgt. Luebbers, who the State offered as an expert witness, and pursuant to Evid.R. 702(C)(3), which requires an expert opinion founded on a test to also show that [t]he particular procedure, test or experiment was conducted in a way that will yield an accurate result. 11 {¶34} Defendant failed to object to Sgt. Luebbers opinions and the basis on which he offered them. Therefore, he has waived any right to argue on appeal, as he does, that Sgt. Luebbers did not strictly comply with NHTSA standards. Indeed, lacking evidence of what the applicable standards are, we are unable to resolve the issue. {¶35} On proceedings remand, on the the motion trial to court suppress may and conduct hear further evidence or arguments relevant to the question the motion required the court to decide: whether the field sobriety tests Defendant performed were conducted in strict compliance with NHTSA standards. Alternatively, if the court finds that the totality of the facts and circumstances apart from the results of the field sobriety tests Defendant performed presented probable cause to arrest him for a DUI violation, the court may deny the motion on that finding. Homan. {¶36} The second assignment of error is sustained. Conclusion {¶37} Having sustained the second assignment of error, we will reverse Defendant s conviction proceedings on the charge against him. FAIN, P.J. and WOLFF, J. Copies mailed to: Christopher Hickey, Esq. Gregory K. Lind, Esq. Hon. Eugene Nevius and remand for further

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