[Cite as State v. Tackett,

.]

IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellant : C.A. CASE NO. 2011-CA-15

vs. : T.C. CASE NO. TRC 1004201

BRANDON TACKETT : (Criminal Appeal from Common Pleas Court) Defendant-Appellee :

. . . . . . . . .

O P I N I O N

Rendered on the 23rd day of December, 2011.

. . . . . . . . .

Betsy A. Deeds, Atty. Reg. No. 0076747, Assistant Fairborn Prosecutor, 510 West Main Street, Fairborn, OH 45324 Attorneys for Plaintiff-Appellee

Terry L. Lewis, Atty. Reg. No. 0010324, 111 W. First Street, Suite 1000, Dayton, OH 45402 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, Brandon Tackett, appeals from his conviction

and sentence for operating a motor vehicle while under the influence

of alcohol.

{¶ 2} On May 2, 2010, between 2:00 a.m. and 3:00 a.m., Ohio 2

Highway Patrol Trooper D. Howard was patrolling westbound on

Colonel Glenn Highway when he observed Defendant’s vehicle back

out of a tavern parking lot onto Colonel Glenn Highway ahead of

him. While following behind Defendant’s vehicle, Trooper Howard

observed that Defendant’s vehicle traveled over the right fog line

by approximately one foot, then traveled over the lefthand double

yellow lines, drifted right, then traveled over the lefthand double

yellow lines, and then traveled right six to eight inches over

the fog line.

{¶ 3} Trooper Howard activated his overhead emergency lights

to initiate a traffic stop. In response, Defendant turned left

onto Old Yellow Springs Road and then turned right onto a side

road where he came to a stop. At the time of the stop, Defendant’s

vehicle remained in the right lane of traffic on the side road.

{¶ 4} Upon making contact with Defendant, Trooper Howard

noticed that Defendant’s speech was slurred, his eyes were glassy

and bloodshot, and that a strong odor of alcohol was coming from

Defendant’s breath. Trooper Howard also noticed that Defendant’s

head led the direction of his eyes. Based on these observations

and for his personal safety, Trooper Howard asked Defendant to

exit his vehicle. After Defendant exited his vehicle, Trooper

Howard asked Defendant if he had consumed any alcohol that night.

Defendant responded that he had consumed a couple of beers. 3

{¶ 5} Trooper Howard asked Defendant to perform several field

sobriety tests and Defendant consented. Trooper Howard had

Defendant perform the horizontal gaze nystagmus test, the vertical

nystagmus test, the walk-and-turn test, and the one-leg stand test.

On the horizontal gaze nystagmus test, Trooper Howard detected

six out of a possible six clues and also observed vertical

nystagmus. On the walk-and-turn test, Trooper Howard detected

five clues out of a potential eight. On the one-leg stand test,

Trooper Howard observed two clues. Following the administration

of the field sobriety tests, Trooper Howard placed Defendant under

arrest, handcuffed him, and advised him of his Miranda rights.

Defendant subsequently refused administration of the chemical test

to determine his blood alcohol content.

{¶ 6} Defendant was charged with operating a vehicle while

under the influence in violation of R.C. 4511.19(A)(1)(a),

operating a vehicle while under the influence and refusing the

chemical test with a prior conviction within twenty years in

violation of R.C. 4511.19(A)(2), and failure to drive within marked

lanes in violation of R.C. 4511.33. Defendant filed a motion to

suppress evidence obtained during the traffic stop. On January

28, 2011, following two days of hearing, the trial court overruled

Defendant’s motion in part and granted it in part. Defendant

entered a plea of no contest to a violation of R.C. 4511.19(A)(2) 4

and was sentenced on January 31, 2011. The remaining two charges

were dismissed.

{¶ 7} Defendant filed a timely notice of appeal.

ASSIGNMENT OF ERROR

{¶ 8} “THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT

APPELLANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED SUBSEQUENT TO

THE APPELLANT BEING ORDERED TO LEAVE HIS MOTOR VEHICLE.”

{¶ 9} In considering a motion to suppress, the trial court

assumes the role of trier of fact and is in the best position to

resolve factual questions and evaluate the credibility of the

witnesses. State v. Mills (1992),

.

Consequently, in reviewing a trial court’s decision on a motion

to suppress, an appellate court must accept the trial court’s

findings of fact if they are supported by competent, credible

evidence. State v. Curry (1994),

, citing

State v. Schiebel (1990),

. An appellate court,

however, determines as a matter of law, without deferring to the

trial court’s conclusions, whether the law has been appropriately

applied to those facts.

citing State v. Claytor (1993),

.

{¶ 10} On appeal, Defendant does not contest that his initial

stop for traffic violations was lawful. Dayton v. Erickson,

,

. Rather, Defendant claims that the 5

police officer lacked the reasonable suspicion that he was driving

his vehicle while under the influence of alcohol necessary to

justify continuing his detention for further investigation for

driving under the influence by conducting field sobriety tests.

State v. Evans (1998),

.

{¶ 11} The trial court found that:

{¶ 12} “Trooper Howard had reasonable and articulable suspicion

to detain the defendant. At the time that the trooper requested

the defendant to exit the vehicle the troop [sic] knew of the

above-described driving, that he detected a strong odor of an

alcoholic beverage emitting from the defendant’s breath, that

defendant’s head led the direction of his eyes, that defendant’s

eyes were bloodshot and glassy, and that defendant’s speech was

slurred. Based upon these observations, the Court finds that the

trooper had reasonable and articulable suspicion to detain the

defendant further.” (Dkt. 95.)

{¶ 13} Defendant relies upon previous decisions of this court

wherein we stated that an odor of alcohol, or a slight odor of

alcohol, coupled with a de minimus traffic violation, glassy

bloodshot eyes, and an admission to having consumed one or two

beers, was insufficient to create a reasonable suspicion of

driving under the influence and justify the administration of field

sobriety tests. State v. Spillers (Mar. 24, 2000), Darke App. No. 6

1504; State v. Dixon (Dec. 1, 2000), Greene App. No. 2000-CA-30.

This court has, however, repeatedly held that a strong odor of

alcohol alone is sufficient to provide an officer with reasonable

suspicion of criminal behavior. See State v. Marshall, Clark

App. No. 2001CA35,

(and the cases cited therein.)

{¶ 14} Here, Defendant was stopped at approximately 2:00 a.m.,

after committing lane violations. When Trooper Howard made

contact with Defendant he noticed that Defendant’s eyes were glassy

and bloodshot and that a strong odor of alcohol emanated from

Defendant’s breath. Further, Defendant’s head led his eyes when

Trooper Howard spoke with Defendant. Trooper Howard testified

that this is common in individuals who have consumed alcohol.

Further, Trooper Howard testified that Defendant’s speech was

slurred. Defendant argues that the videotape of Defendant’s

traffic stop taken by the camera in Trooper Howard’s cruiser does

not support a finding that Defendant’s speech was slurred.

However, even assuming that Defendant’s speech was not slurred,

the remaining facts, considered together, are sufficient to give

rise to a reasonable suspicion of criminal behavior, OMVI, and

justified continuing Defendant’s detention in order to conduct

field sobriety tests. State v. Knox, Greene App. No. 2005CA74,

.

{¶ 15} Defendant also argues that Trooper Howard’s failure to 7

execute all of the “PRE-EXIT INTERVIEW TECHNIQUES” outlined in

Section VI of the National Highway Traffic Safety Administration

Manual for DWI Detection and Standardized Field Sobriety Testing

(“NHTSA Manual”) precludes a finding that Trooper Howard had

sufficient, reasonable suspicion to continue the detention of

Defendant and order him out of his vehicle. We disagree.

{¶ 16} “[P]olice officers may require that the occupants of

a motor vehicle exit the vehicle pursuant to a stop for a traffic

violation because of the legitimate safety concerns of both the

officer and the occupants.” State v. Brock, Montgomery App. No.

23665,

, at ¶17 (citations omitted). As the United

States Supreme Court has explained:

{¶ 17} “The hazard of accidental injury from passing traffic

to an officer standing on the driver’s side of the vehicle may

also be appreciable in some situations. Rather, than conversing

while standing exposed to moving traffic, the officer prudently

may prefer to ask the driver of the vehicle to step out of the

car and off onto the shoulder of the road where the inquiry may

be pursued with greater safety to both.” Pennsylvania v. Mimms

(1977),

, 111,

,

.

{¶ 18} Further, under the heading “THE EXIT SEQUENCE” in Section

VI-6, the NTHSA Manual states, in part: “Your decision to instruct

the driver to step from the vehicle usually is made after you have 8

developed a suspicion that the driver is impaired.[] Except,

however, that you may instruct a suspect to exit the vehicle as

a means of ensuring your own safety. Safety considerations take

precedence over all other considerations.”

{¶ 19} Trooper Howard testified that he had Defendant exit his

vehicle because his car was parked in the right lane of the roadway

and the safety of Trooper Howard would be compromised if he

continued to question Defendant from outside the driver’s side

window. (November 2, 2010 Transcript, p. 86-87.) Once Defendant

exited the vehicle, Trooper Howard walked him to the front of the

patrol car. (October 11, 2010 Transcript, p. 25.) Pursuant to

Mimms and Section VI-6 of the NHTSA Manual, the safety of Officer

Howard was a sufficient reason, in and of itself, to order Defendant

out of his vehicle.

{¶ 20} Defendant concedes in his brief that an officer need

not follow all of the procedures set forth in the NHTSA Manual.

However, Defendant argues that his field sobriety tests should

be suppressed from evidence because Trooper Howard did not have

sufficient reasonable suspicion to further detain Defendant to

administer the field sobriety tests. Defendant does not identify

any section of the NHTSA Manual which is mandatory that Trooper

Howard did not follow. Neither does Defendant identify any section

of the Revised Code that Trooper Howard violated when he decided 9

to have Defendant exit the vehicle.

{¶ 21} R.C. 4511.19(D)(4) addresses situations in which the

results of field sobriety tests may be used in criminal proceedings.

R.C. 4511.19(D)(4) provides, in pertinent part:

{¶ 22} “(b) In any criminal prosecution or juvenile court

proceeding for a violation of division (A) or (B) of this section,

* * * if a law enforcement officer has administered a field sobriety

test to the operator of the vehicle involved in the violation and

if it is shown by clear and convincing evidence that the officer

administered the test in substantial compliance with the testing

standards for any reliable, credible, and generally accepted field

sobriety tests that were in effect at the time the tests were

administered, including, but not limited to, any testing standards

then in effect that were set by the national highway traffic safety

administration, all of the following apply:

{¶ 23} “(i) The officer may testify concerning the results of

the field sobriety test so administered.

{¶ 24} “(ii) The prosecution may introduce the results of the

field sobriety test so administered as evidence in any proceedings

in the criminal prosecution or juvenile court proceeding.

{¶ 25} “(iii) If testimony is presented or evidence is

introduced under division (D)(4)(b)(I) or (ii) of this section

and if the testimony or evidence is admissible under the Rules 10

of Evidence, the court shall admit the testimony or evidence and

the trier of fact shall give it whatever weight the trier of fact

considers to be appropriate.

{¶ 26} “(c) Division (D)(4)(b) of this section does not limit

or preclude a court, in its determination of whether the arrest

of a person was supported by probable cause or its determination

of any other matter in a criminal prosecution or juvenile court

proceeding of a type described in that division, from considering

evidence or testimony that is not otherwise disallowed by division

(D)(4)(b) of this section.”

{¶ 27} R.C. 4511.19(D)(4)(b) and (c) are “a codification of

the Ohio Supreme Court’s holding in State v. Schmitt,

,

,

, which held that even if

the actual test results of nonscientific standard field sobriety

tests were deemed inadmissible, an officer may nevertheless testify

as a lay witness, regarding observations made during a defendant’s

performance of these tests and the court may rely on this testimony

in making its probable cause determination.” State v. Lothes,

Portage App. No. 2006-P-0086,

, citing Schmitt,

at ¶13-16.

{¶ 28} As the Supreme Court explained in Schmitt, at ¶14:

{¶ 29} “We see no reason to treat an officer’s testimony

regarding the defendant’s performance on a nonscientific field 11

sobriety test any differently from his testimony addressing other

indicia of intoxication, such as slurred speech, bloodshot eyes,

and odor of alcohol. In all of these cases, the officer is

testifying about his perceptions of the witness, and such testimony

helps resolve the issue of whether the defendant was driving while

intoxicated.”

{¶ 30} Here, Trooper Howard testified regarding his

observations of Defendant that led to his decision to further detain

Defendant to conduct field sobriety tests. This testimony is

admissible and supports the trial court’s finding that Trooper

Howard had a reasonable and articulable suspicion of driving under

the influence to justify his decision to have Defendant exit the

vehicle and administer field sobriety tests.

{¶ 31} The assignment of error is overruled. The judgment of

the trial court will be affirmed.

FAIN, J., And HALL, J., concur.

Copies mailed to:

Betsy A. Deeds, Esq. Terry L. Lewis, Esq. Hon. Beth W. Root