[Cite as State v. Krzemieniewski,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 15CA0015-M

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE MARTIN L. KRZEMIENIEWSKI MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO Appellant CASE Nos. 13 TRC 02021 13 CRB 00463

DECISION AND JOURNAL ENTRY

Dated: July 18, 2016

BALDWIN, Judge.

{¶1} Appellant, Martin Krzemieniewski, appeals his conviction from the Medina

Municipal Court. This Court affirms.

I

{¶2} Montville Township Police Officer Brett Harrison observed a car travel left of

center while turning from Fox Meadow Drive to Poe Road. The driver-side tires crossed

completely over the solid yellow centerline. After that, the car moved toward the right side of

the road and the passenger-side tires crossed over the white fog line by about half a tire width.

Officer Harrison stopped the car for the marked-lanes violations. Krzemieniewski was the driver

of the car.

{¶3} Upon approaching the car, Officer Harrison noticed the odor of raw marijuana

coming from it. He also observed that Krzemieniewski’s eyes were bloodshot and glossy.

Krzemieniewski admitted that he had smoked some marijuana “a little bit ago” and that there 2

was more marijuana in the car. Officer Harrison administered standard field sobriety tests. He

observed one clue on the one-leg stand, but no clues on the other tests. Officer Harrison further

testified that Krzemieniewski seemed “[o]verly calm” under the circumstances.

{¶4} Officer Harrison arrested Krzemieniewski for operating a vehicle under the

influence of alcohol or drugs (“OVI”). A blood test was performed and Krzemieniewski was

charged with OVI in violation of R.C. 4511.19(A)(1)(j)(vii) and 4511.19(A)(1)(j)(viii)(II). He

was also cited for the marked-lanes violation under R.C. 4511.33 and possession of marijuana in

violation of R.C. 2925.11(A). The citation further noted that Krzemieniewski had two prior

OVI’s.

{¶5} Krzemieniewski pled not guilty and filed a motion to suppress the evidence against

him. Following multiple continuances by both sides, a hearing was held December 9, 2013.

Officer Harrison, who had six years of experience as a police officer, was the only witness to

testify at the suppression hearing. On October 15, 2014, the trial court issued a judgment entry

denying the motion to suppress.

{¶6} Thereafter, Krzemieniewski filed a motion to dismiss arguing that the trial court

took an unreasonable amount of time to rule on his motion to suppress in violation of his speedy

trial rights. The trial court denied the motion to dismiss noting, inter alia, that Krzemieniewski

had waived time on multiple occasions.

{¶7} Thereafter, the prosecutor, Krzemieniewski, and his counsel signed a pretrial

agreement. According to that agreement, the prosecutor recommended that, if Krzemieniewski

pled guilty or no contest to the R.C. 4511.19(A)(1)(j)(vii) and marijuana possession charges, the

State would dismiss the balance of the charges and consent to driving privileges. Above the

signatures of Krzemieniewski and his counsel, the agreement states: “The recommendation of 3

the [p]rosecutor is accepted by the defendant and defendant’s counsel and defendant waives all

speedy trial rights.”

{¶8} The court accepted Krzemieniewski’s no contest plea and found him guilty of OVI

in violation of R.C. 4511.19(A)(1)(j)(vii) and marijuana possession in violation of R.C.

2925.11(A). Krzemieniewski moved for a stay of his sentence pending appeal, which the trial

court granted. Krzemieniewski raises two assignments of error on appeal.

II

Assignment of Error Number One

DEFENDANT’S ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE.

{¶9} In his first assignment of error, Krzemieniewski argues that the trial court erred in

overruling his motion to suppress because he contends that Officer Harrison lacked probable

cause to arrest him for OVI. We disagree.

{¶10} We begin by noting the standard by which this Court reviews a trial court’s

decision on a motion to suppress.

Appellate review of a motion to suppress presents a mixed question of law and fact. 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. Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusions of the trial court, whether the facts satisfy the applicable legal standard.

(Internal citations omitted.) State v. Burnside,

,

, ¶ 8.

{¶11} The legal standard for probable cause to arrest for OVI is whether “at the moment

of the arrest, the police had sufficient information, derived from a reasonably trustworthy source

of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was

driving under the influence.” State v. Homan,

(2000), superseded by 4

statute on other grounds. This involves an examination of the totality of the facts and

circumstances known at the time of the arrest.

{¶12} Krzemieniewski does not disagree with the trial court’s factual findings that: (1) he

committed two traffic violations; (2) the odor of raw marijuana was coming from his vehicle; (3)

his eyes were bloodshot and glossy; (4) he admitted that he had smoked marijuana recently; and

(5) he admitted that there was marijuana in the car.1 He argues, however, that the totality of the

circumstances do not support probable cause to believe that he was driving under the influence

because: (1) Officer Harrison smelled only raw, unsmoked marijuana; (2) Officer Harrison had

not completed Advanced Roadside Impaired Driving Enforcement (“ARIDE”) training prior to

the stop; (3) Officer Harrison’s police report did not list factors that would be consistent with

sobriety; (4) Krzemieniewski passed the field sobriety tests; and (5) Krzemieniewski was calm

throughout the stop.

{¶13} Krzemieniewski first points out that Officer Harrison smelled raw marijuana,

indicating that it had not been smoked. While the smell of burnt marijuana would be a stronger

indicator of recent marijuana consumption and possible impairment, Krzemieniewski admitted to

Officer Harrison that he had smoked marijuana “a little bit ago.” Neither Officer Harrison nor

the court relied on the odor of marijuana alone in determining that there was probable cause.

Rather the marijuana odor was coupled with Krzemieniewski’s admission that he had recently

smoked marijuana, thus, supporting the probable cause determination.

{¶14} Krzemieniewski next argues that the court erred in mentioning that Officer

Harrison had ARIDE training because he did not complete that training until after the date of the

1 In his brief, Krzemieniewski lists: (1) his admission of marijuana consumption; (2) the odor of marijuana; (3) his marked lanes violations; and (4) his bloodshot eyes. He does not, however, dispute that he also admitted that there was marijuana in the car. 5

stop. On cross-examination, Officer Harrison was asked whether he was familiar with ARIDE,

and he responded that he took that training in the spring after this stop. Officer Harrison further

testified that, prior to the date of the stop, he had completed National Highway Traffic Safety

Administration (“NHTSA”) training for impaired driving detection. While his NHTSA training

focused on alcohol impairment, it also addressed marijuana. As Officer Harrison had training in

detecting marijuana impairment prior to the arrest, the trial court’s reference to his subsequent

ARIDE training was harmless.

{¶15} Krzemieniewski further argues that he exhibited a number of signs consistent with

sobriety that Officer Harrison did not account for in his police report. In his testimony at the

suppression hearing, Officer Harrison indicated which factors he did, and which he did not,

observe. In addition, the trial court’s decision denying the motion to suppress noted a number of

factors that either were not observed or referenced in the police report. Thus, those factors were

properly accounted for in making the probable cause determination.

{¶16} Krzemieniewski next points out that he passed the field sobriety tests. He implies

that because he passed those tests, he could not be arrested for OVI. In support of his argument,

he directs our attention to State v. Mason, 5th Dist. Stark No. 2012 CA 00075,

,

wherein it was noted that the one-leg stand and walk-and-turn tests could be affected by

marijuana consumption. Id. at ¶ 43-44. Krzemieniewski’s reliance on Mason is misplaced. In

Mason, the defendant argued that “field sobriety tests are unhelpful in establishing impairment

due to use of marijuana.” Id. at ¶ 41. The Mason court was not presented with the issue of

whether a defendant who passed field sobriety tests, yet exhibited other indicia of impairment,

could be arrested for OVI. 6

{¶17} “[T]he totality of the facts and circumstances can support probable cause for an

arrest even in the absence of the administration of field sobriety tests.” State v. Russo, 9th Dist.

Medina No. 09CA0009-M,

, ¶ 10. The fact that Krzemieniewski passed the

field sobriety tests does not negate the other indicia of impairment observed by Officer Harrison.

{¶18} Krzemieniewski further notes that Officer Harrison described his demeanor after

exiting the car as “[o]verly calm from what * * * the average person is [at] a traffic stop.”

Because he was not immediately arrested following the officer’s initial observations and he

passed the field sobriety tests, Krzemieniewski contends that he “was arrested for being calm.”

Krzemieniewski continues that in State v. Adair, 5th Dist. Muskingum No. CT2007-0035, 2007-

Ohio-7176, nervousness was an indicator of impairment. Id. at ¶ 20. Krzemieniewski implies

that an unusual degree of calmness could not also be an indicator. The trial court did not

reference Krzemieniewski’s demeanor in reaching its probable cause determination. We,

likewise, do not find it necessary to address this issue as Officer Harrison had probable cause to

believe that Krzemieniewski was operating a vehicle under the influence of a drug of abuse aside

from his demeanor. See State v. Willard, 9th Dist. Medina No. 04CA0045-M,

(declining to address field sobriety tests where other independent factors established

probable cause).

{¶19} Krzemieniewski’s arguments regarding his performance on the field sobriety tests

and his demeanor miss the essential question regarding probable cause. That is whether,

notwithstanding the field sobriety tests or his demeanor, a prudent person would believe that

Krzemieniewski was operating a vehicle under the influence of a drug of abuse. See State v.

Rospert, 9th Dist. Medina No. 12CA0033-M,

, quoting

(“It [

] does not matter why [the trooper] waited until after administering a portable breath alcohol test 7

to arrest [the defendant] because the issue is simply whether, notwithstanding the test, a ‘prudent

person’ would have cause to believe that [the defendant] had operated the truck under the

influence of alcohol.”). Under the totality of the circumstances in this case, probable cause

existed based on Krzemieniewski’s traffic violations, his bloodshot and glossy eyes, his

admission of having smoked marijuana recently, and the odor and presence of marijuana (albeit

raw) in the car. See

(erratic driving, red and glassy eyes, odor of alcohol, and

admission of alcohol consumption “amply support[ed]” decision to arrest).

{¶20} Krzemieniewski’s first assignment of error is overruled.

Assignment of Error Number Two

THE COURT’S ELEVEN MONTH DELAY BETWEEN THE MOTION TO SUPPRESS AND DECISION WAS UNREASONABLE AND IN VIOLATION OF KRZEMIENIEWSKI’S RIGHT TO A SPEEDY TRIAL.

{¶21} In his second assignment of error, Krzemieniewski argues that his speedy trial

rights were violated due to the time that lapsed between the hearing on his motion to suppress

and the trial court issuing a decision on the motion. We disagree.

{¶22} Krzemieniewski was charged with multiple offenses of different degrees, the

highest one being a first-degree misdemeanor. Therefore, the statutory time to bring him to trial

was ninety days. See R.C. 2945.71(B)(2) and (D). That time, however, may be extended by any

period necessitated by a motion of the accused. R.C. 2945.72(E). In addition, a defendant or his

counsel may waive the defendant’s right to a speedy trial. State v. O’Brien,

(1987).

{¶23} We note that Krzemieniewski does not dispute that his motion to suppress tolled

his speedy trial clock, nor does he contend that any of the continuances sought by either side

prior to the hearing on the motion to suppress were unreasonable or that any of that time should 8

count against the State. Rather, his argument focuses solely on the time period following the

suppression hearing while awaiting a ruling from the trial court.

{¶24} A trial judge should rule on motions as expeditiously as possible. State v. Sanchez,

,

, ¶ 27; State v. Martin,

(1978).

Krzemieniewski directs our attention to State v. Arrizola,

(3d Dist. 1992),

wherein that court found a seven-month delay was unreasonable.2

. We have previously

distinguished Arrizola from cases, such as this one, where the defendant has waived his speedy

trial rights. See State v. Goshen, 9th Dist. Lorain No. 93CA005574,

, *3 (Sept.

21, 1994).

Following an express, written waiver of unlimited duration by an accused of his right to a speedy trial, the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection and demand for trial, following which the state must bring the accused to trial within a reasonable time.

O’Brien at paragraph two of the syllabus. When a waiver does not mention a specific time

period, it is of unlimited duration. State v. Skorvanek, 9th Dist. Lorain No. 08CA009399, 2009-

Ohio-3924, ¶ 18.

{¶25} In the present case, Krzemieniewski waived his speedy trial right on multiple

occasions. Krzemieniewski’s counsel filed written waivers on April 18, May 10, and July 19,

2013. None of the waivers listed a specific time period; thus, they were of unlimited duration.

Krzemieniewski did not file an objection and demand for trial during the time that he awaited a

ruling on his motion to suppress. While not condoning any undue delay in ruling on motions, we

cannot say that this “one-judge court” erred by relying on Krzemieniewski’s multiple time

2 Arrizola did not establish a bright-line rule, but found the determination depends on the circumstances of each case, including the complexity of the facts, the difficulty of the legal issues presented, and the demands on the time and schedule of the trial court judge. Id. at 76. 9

waivers when prioritizing his docket. See

. We also note that, although it was

after the trial court denied the motions to suppress and dismiss, Krzemieniewski and his counsel

signed a pretrial agreement reiterating that the “defendant waives all speedy trial rights.”

{¶26} Krzemieniewski’s second assignment of error is overruled.

III

{¶27} Krzemieniewski’s assignments of error are overruled. The judgment of the

Medina Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CRAIG R. BALDWIN FOR THE COURT 10

HENSAL, P. J. SCHAFER, J. CONCUR.

(Baldwin, J., of the Fifth District Court of Appeals, sitting by assignment.)

APPEARANCES:

MICHAEL E. STEPANIK and JACK W. BRADLEY, Attorneys at Law, for Appellant.

J. MATTHEW LANIER, Attorney at Law, for Appellee.