Summary
In City of Cleveland v. Machnics, 984 N.E.2d 1129 (2012), a published opinion by the Cleveland Municipal Court, the court noted that since Evans was decided, the legal standard for intoxication has been reduced.
Summary of this case from State v. BurkhartOpinion
No. 2012 TRC 012085.
2012-11-29
CITY OF CLEVELAND, Plaintiff v. Elizabeth MACHNICS, Defendant.
Attorney Karrie Howard and Joanna Lopez, Assistant Police Prosecutors appearing on behalf of the City of Cleveland. Attorney John Mizanin, Cleveland, appearing on behalf of the defendant.
Attorney Karrie Howard and Joanna Lopez, Assistant Police Prosecutors appearing on behalf of the City of Cleveland. Attorney John Mizanin, Cleveland, appearing on behalf of the defendant.
EMANUELLA GROVES, Judge.
The defendant filed a Motion to Suppress challenging two areas relating to her arrest. First, defendant argued the trooper did not have sufficient justification to request her to step out of the motor vehicle. Second, the defendant argued that the field sobriety tests were not performed in substantial compliance with testing requirements set forth in the National Highway Traffic and Safety Administration (NHTSA) Manual.
The facts from which the case arose are as follows:
On February 24, 2012 at approximately 2:30 a.m., the defendant Elizabeth Machnics was stopped by Ohio Highway Patrol Trooper James Baker for no front plate and no rear license plate light. When the trooper approached the vehicle, he smelled alcohol on the defendant's breath. The trooper also observed the defendant had bloodshot and glassy eyes. The defendant admitted drinking earlier. Based on the trooper's six years of experience and almost 200 DUI arrests, he suspected that the defendant was intoxicated, and asked the defendant to exit the vehicle for further investigation.
Upon exiting the vehicle, the trooper had the defendant perform three field sobriety tests. The first test performed by the defendant was the Horizontal Gaze Nystagmus test, which requires four clues as evidence of impairment. The defendant presented six clues of impairment. The second test performed by the defendant was the one-leg stand, which requires two clues as evidence of impairment. The defendant only presented one clue for impairment. The third test performed by the defendant was the walk-and-turn, which requires at least two clues as evidence for impairment. The defendant presented two clues. In all, the defendant failed two of the three field sobriety tests.
The initial reason the trooper stopped the defendant was for an equipment, non-moving violation. As long as the trooper had probable cause to believe the defendant violated the law, the stop is reasonable under the Fourth Amendment. Once a motorist has been stopped for a valid offense (no matter how minor), no observations of erratic driving is necessary to investigate a driving while impaired offense. The degree of the violation is irrelevant for purposes of establishing probable cause for the stop. De minimis or minor violations are valid and sufficient reasons for a stop by law enforcement.
Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996).
State v. Terrell, 12th Dist. No. CA99–07–020, 2000 WL 1591147 (Oct. 23, 2000).
Although the trooper stopped the defendant for a minor violation, an investigation by the trooper is not limited to the scope of that violation. The trooper may detain the defendant to investigate additional violations. However, the trooper must have a reasonable suspicion based on specific articulable facts that a law has been violated or is being violated. The determination of reasonable suspicion to further detain the defendant must be based on the totality of the circumstances surrounding the trooper's observations.
State v. Slider, 11th Dist. No. 2007–P–0096, 2008 WL 2042828 (May 9, 2008).
State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980).
In short, the detention may not be based on an unparticularized suspicion or hunch. The difference between a hunch and a reasonable suspicion is the number of surrounding facts and circumstances. In State v. Evans, the Court of Appeals for the 11 th District enumerated factors that may be included in determining reasonable suspicion of operating a motor vehicle while under the influence of alcohol:
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
These factors include, but are not limited to (1) the time and date 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 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. All of these factors, together with the officer's previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably. No single factor is determinative.
State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761 (11th Dist.1998).
Here, the defendant argued the trooper had insufficient facts and circumstances to go beyond a mere hunch of operation while impaired. To support her argument, she cited two 2000 appellate cases. Both of these cases found that the odor of alcohol, glassy and bloodshot eyes and after midnight stop were insufficient to require a driver to submit to field sobriety tests. In essence, the court found these four factors as mere evidence that the drivers had consumed alcohol.
State v. Dixon, 2000 WL 1760664 (2nd Dist.); State of Ohio v. Spillers, 2000 WL 299550 (2nd Dist.).
The court decisions cited by the defendant are unpersuasive. In Spillers, the court admitted the issue of reasonable suspicion of impairment was close given the facts. Since the cited cases were decided, the legal standard for intoxication has been reduced. In 2003, the Ohio General Assembly reduced the presumption of intoxication by two-hundredths of one percent by weight per unit volume of alcohol in the person's whole blood . Given this lower standard, a number of factors listed in Evans will not be exhibited by an impaired driver at the lowest prohibited alcohol consumption level. Evans was also decided prior to the reduction in the presumptive level of alcohol impairment. Consequently, it is unlikely that a suspect's speech, behavior or coordination will be noticeably impaired. A prohibition to further investigate because only four factors of impairment are shown: bloodshot and glassy eyes, smell of alcohol, and time of day after 2:00 a.m. will probably preclude or hinder enforcement of driving while impaired at the reduced level of alcohol.
State of Ohio v. Spillers, 2000 WL 299550 (2nd Dist.).
.R.C. 4511.19
State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761 (11th Dist.1998).
When an impaired driver is stopped by law enforcement, operating a motor vehicle while impaired is actually an offense in progress. Unlike most other intrusions by law enforcement, the intrusion is not in the midst of the commission of the offense. In most other cases, the commission of the offense is imminent or has occurred. Upon observing reasonable indicia of impaired driving, the officer should be assured that the driver is not impaired before allowing the operator to drive further. As stated in the cited cases by the defendant, it is true that there is no absolute prohibition of drinking and driving, but that allowance to drink and drive should not prevent law enforcement from investigating whether the allowed level of consumption has been exceeded.
Facts which may not rise to a level of probable cause for an arrest can be sufficient to justify the lesser intrusion of requiring the motorist to perform sobriety tests. Certainly, the current facts are insufficient to support probable cause for an arrest. However, they are sufficient to merit further investigation. Trooper Baker noted the distinction between mere odor of alcohol on a driver and odor coupled with glassy and bloodshot eyes. The trooper stated that given his experience, these factors together suggested evidence of impairment.
City of Cleveland v. Sanders, Ohio App. 8th District, 2004 WL 1902228, citing State v. Cooper, Clark App No. 2001–CA–86, 2002 WL 1251154
In Sanders, the court stated that, “An analysis of an investigatory stop leading to an arrest requires careful attention to each stage of the detention in order to make sure that the extent of the intrusion represented by each stage is warranted by the officer's reasonable and articulable suspicion at that point.” In other words, there should be a progression of evidence gathering which leads to a determination of probable cause. The length of the investigation cannot be unreasonably extended. The Supreme Court of Ohio in 1985 held, “It is clear that the ‘brevity of the invasion’ of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justified on reasonable suspicion.” Additionally, the Supreme Court stated that consideration must be given to “law enforcement's purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.”
Sanders citing State of Ohio v. Spillers, 2000 WL 299550 (2nd Dist).
U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), citing U.S. v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983)
Sharpe citing U.S. v. Hensley, 469 U.S. 221, 228–229, 234–235, 105 S.Ct. 675, 680–681, 683–684, 83 L.Ed.2d 604 (1985);Place, supra, 462 U.S., at 703–704, 709, 103 S.Ct. at 2642–2643, 2645–2646, 77 L.Ed.2d 110;Michigan v. Summers, 452 U.S. 692, 700 and n. 12, 101 S.Ct. 2587, 2593 and n. 12, 69 L.Ed.2d 340 (1981) (quoting 2 W. La Fave, Search and Seizure § 9.2 pp. 36–37 (1978)).
Given the time of day, odor of alcohol, bloodshot and glassy eyes and the trooper's own experience, he had a reasonable articulable suspicion that the defendant was driving impaired. This suspicion required the trooper to request the defendant to step out of the car for further investigation. The time outside of the vehicle to perform the standard field sobriety tests was not unreasonable. Consequently, defendant's claim that she should not have been required to get out of the vehicle is without merit.
Defendant also challenged the manner in which the field sobriety tests were performed. Field sobriety tests must be administered in substantial compliance with the testing standards as shown by clear and convincing evidence. This standard has been upheld by the Ohio Supreme Court as constitutional.
State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155
The instructions for administering the standardized field sobriety tests are set forth in the NHTSA Manual. Trooper Baker testified how the tests were performed, and a review of the manual did not reveal any nonconformity with the instructions. Additionally, the defendant failed to identify any substantial non-compliance by the trooper in the field sobriety testing. Therefore, the defendant's second claim is also without merit.
Defendant's Motion to Suppress is denied on both claims.