State v. McCormick, Unpublished Decision (8-27-1999)
State v. McCormick, Unpublished Decision (8-27-1999)
Opinion of the Court
OPINION
Defendant Jennifer McCormick appeals a judgment of the Municipal Court of Coshocton, Ohio, convicting and sentencing her for driving under the influence of alcohol in violation of R.C.ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING DEFENDANT'S MOTION TO SUPPRESS, WHERE THE LAW ENFORCEMENT OFFICER HAD NO REASONABLE AND ARTICULABLE SUSPICION TO STOP THE DEFENDANT'S CAR FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL.
At the hearing on the motion to suppress, the State presented the testimony of Sergeant Tim Rogers, a deputy sheriff with the Coshocton County Sheriff's Office, and the arresting officer in this case. Sergeant Rogers testified on October 18, 1998, just before 8:00 p.m., he received a dispatch identifying a possible DUI leaving the area of Warsaw driving a white Lumina. Sergeant Rogers learned it was a female driver with a small child in a car seat, possibly headed to the area of Cambridge. Sergeant Rogers testified no license plate number was given, and he did not believe the dispatcher informed him of the suspect's name on the radio. Sergeant Rogers proceeded to Route 36, and positioned his cruiser to illuminate any vehicle that came down Route 36. It was raining very hard. When Sergeant Rogers saw a white Lumina with a child in a car seat, he pulled out behind the vehicle and ran its license plate number. When it came back, the dispatcher informed the officer it was the suspect's car, and the officer testified he believed the dispatcher also confirmed the driver's name. Sergeant Rogers followed the suspect to observe her driving ability. The officer testified he followed the appellant for two to two and one-half miles, and never observed any driving infraction. Appellant's license check came back valid with no prior violations or suspensions. Nevertheless, Sergeant Rogers decided to make a traffic stop because of the child in the car. The officer activated his lights and siren, and appellant continued down the road for approximately .2 of a mile. Appellant pulled over at a gas station and pulled up to the pump. The officer testified he did not know whether appellant pulled over in response to his siren and lights, or because she wanted to purchase gasoline. When Sergeant Rogers approached appellant, he smelled a strong odor of alcohol about her person, and did a field sobriety test. The State also called Deanna Good, appellant's sister-in-law. Ms. Good testified on the day in question, she observed appellant driving her car with her two-year old child, behaving in a manner which led Ms. Good to believe she was drunk. Ms. Good testified she called the Sheriff's Department because of her fear for the child. On cross-examination, Ms. Good conceded she did not actually see appellant consuming alcohol. The record is silent as to whether the arresting officer received any information from the dispatcher indicating Ms. Good's name or phone number. Appellant urges the trial court erred as a matter of law in refusing to suppress the evidence of the arresting officer, because he lacked any reasonable and articulable suspicion to stop her car. In Beck v. Ohio (1964),
For the foregoing reasons, the judgment of the Municipal Court of Coshocton County, Ohio, is reversed, and the cause is remanded to that court for further proceedings in accord with law and consistent with this opinion.
By Gwin, P.J., Farmer, J., and Edwards, J., concur
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