[Cite as State v. Hopp,

.]

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

STATE OF OHIO C.A. No. 28095

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE STEVEN HOPP AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 15 TR 12557

DECISION AND JOURNAL ENTRY

Dated: December 7, 2016

MOORE, Presiding Judge.

{¶1} The Defendant, Steven Hopp, appeals from the judgment of the Akron Municipal

Court. This Court reverses and remands this matter for further proceedings consistent with this

decision.

I.

{¶2} On July 17, 2015, officers from the Summit County Sheriff’s Office stopped Mr.

Hopp at a sobriety checkpoint. After conducting field sobriety tests and a breathalyzer test, the

officers ultimately cited Mr. Hopp for OVI in violation of R.C. 4511.19(A)(1)(a) and

4511.19(A)(1)(d). Mr. Hopp pleaded not guilty, and thereafter he filed a motion to suppress

evidence. After a hearing, the trial court granted the motion to suppress with respect to the

results of the field sobriety tests conducted on Mr. Hopp, but it denied the motion to suppress in

all other respects. Thereafter, Mr. Hopp changed his plea to no contest. The trial court found

Mr. Hopp guilty and imposed sentence. 2

{¶3} Mr. Hopp timely appealed from the sentencing entry, and he now presents three

assignments of error for our review. We have re-ordered and consolidated certain assignments

of error in order to facilitate our review.

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT FOUND THAT OFFICERS HAD PROBABLE CAUSE TO ARREST [MR. HOPP] FOR OPERATING A VEHICLE WHILE INTOXICATED[.]

{¶4} In his second assignment of error, Mr. Hopp argues that the trial court erred in

concluding that the officers had probable cause to arrest Mr. Hopp for OVI.

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 conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Internal citations omitted.) State v. Burnside,

,

, ¶ 8.

Accord State v. Hobbs,

,

(Burnside applied). Mr. Hopp

has raised no challenge to the following facts, relevant to our discussion of probable cause,

which the trial court accepted in its analysis.

{¶5} At the suppression hearing, Deputy Brian Breeden of the Summit County

Sheriff’s Office, testified that, on July 17, 2015, he was working at a sobriety checkpoint on

West Market Street in Akron, Ohio. Mr. Hopp arrived at the checkpoint, and Deputy Breeden

asked Mr. Hopp for his driver’s license. At that point, the Deputy smelled a strong odor of

alcohol coming from Mr. Hopp’s car. The deputy told Mr. Hopp that he wanted to do further

testing on Mr. Hopp to determine if he was impaired, and the deputy asked Mr. Hopp to exit his 3

car to perform field sobriety tests. After performing the tests, the deputy determined that Mr.

Hopp was impaired and he escorted him to Deputy Cuckler to do BAC testing.

{¶6} On cross-examination, Deputy Breeden acknowledged that he saw no indications

of impaired driving when Mr. Hopp approached the checkpoint. Prior to performing the field

sobriety tests, the deputy recalled that Mr. Hopp spoke with slightly slurred speech. Mr. Hopp

had also indicated to Deputy Breeden that Mr. Hopp had a couple of scotches, and the deputy

observed that Mr. Hopp had bloodshot eyes.

{¶7} Although not explicitly stated in Deputy Breeden’s testimony, from the manner in

which the parties have framed their arguments, it appears that they agree that, once Deputy

Breeden determined that Mr. Hopp had failed the field sobriety tests, he placed him under arrest.

In its journal entry, the trial court determined that the results of the field sobriety tests were to be

suppressed because the State had failed to produce evidence pertaining to the NHTSA standards

for conducting these tests. See R.C. 4511.19(D)(4)(b). However, the trial court further

concluded that there existed probable cause to arrest Mr. Breeden without consideration of the

results of the field sobriety tests.

{¶8} The standard for determining if there was probable cause to justify an arrest for

OVI is whether, at the time of arrest, the officer had sufficient facts derived from a reasonably

trustworthy source to cause a prudent person to believe the suspect was driving under the

influence. State v. Homan,

,

, superseded by statute on

other grounds, R.C. 4511.19(D)(4)(b). The law does not prohibit driving after drinking alcohol;

instead, it prohibits driving when impaired by alcohol. State v. Taylor,

(1st Dist. 1981) (“For better or worse, the law prohibits drunken driving, not driving after a

drink.”) (Emphasis sic.); R.C. 4511.19. The determination of probable cause to arrest an 4

individual for driving under the influence is based on the totality of the facts and circumstances

surrounding the arrest. Homan at 427. “It is well settled that * * * ‘it is possible to have a valid

arrest for driving under the influence of alcohol even though the arresting officer has not actually

observed the arrestee operating a vehicle in an erratic or unsafe manner.’” State v. Snider, 9th

Dist. Medina No. 2924-M,

, *3, fn. 3 (July 28, 1999), quoting State v. Finch,

(12th Dist. 1985); Tallmadge v. Barker, 9th Dist. Summit No. 24414, 2009-

Ohio-1334, ¶ 17.

{¶9} Here, Mr. Hopp maintains that his admission to drinking a couple of scotches that

evening, the odor of alcohol on his person and his thick tongued speech and blood shot eyes did

not establish probable cause to arrest him for an OVI. Mr. Hopp maintains that these factors

may indicate that he was drinking alcohol, but do not establish probable cause that he was

impaired.

{¶10} When analyzing similar factors, the Twelfth District, in Finch, held that

observations of the driver’s appearance, smell of alcohol, slurred speech, and bloodshot eyes,

were insufficient to constitute probable cause for arrest in that case because there was no

indication that the defendant was impaired by his consumption of alcohol.

. Compare

with State v. Hoffman, 5th Dist. Licking No. 01 CA 22,

, *1-3, 2001-Ohio-

1378 (probable cause existed to arrest driver where the driver had glassy eyes, slurred speech,

and an odor of alcoholic beverage, and had admitted to drinking three or four beers, where the

officer observed the driver’s truck traveling at a high rate of speed for the road conditions, and

officer was advised by an informant that the driver had engaged in other erratic driving).

{¶11} Here, in concluding that there existed probable cause for the arrest, the trial court

relied on State v. Sunday, 9th Dist. Summit 22917,

, where this Court concluded 5

that, although the trial court erred in finding that the officer had conducted field sobriety tests in

substantial compliance with NHTSA guidelines, there existed probable cause for arrest. Id. at ¶

25, 33. However, in that case, along with other factors indicative of OVI, the defendant was

observed to have driven irregularly by crossing the center line, and he swayed while standing.

See id. at ¶ 33. See also State v. Walters, 9th Dist. Medina No. 11CA0039-M,

(probable cause existed for arrest for OVI where, among other factors, a half-naked

woman was inside of the car of the defendant, who had parked at a random location and was

outside of his car behaving oddly and acting visibly nervous when officer arrived). Unlike

Sunday or Walters, here there was no indication of erratic driving or behavior, and there was

little indication of physical impairment that would contribute to a conclusion that there was a

reasonable probability that Mr. Hopp was impaired. Although we do not rule out that there could

exist a case where the present factors of prior alcohol consumption, odor of alcohol, slurred

speech, and bloodshot eyes, may exist in degrees sufficient to support a finding of probable

cause, such was not the case here. Although the deputy smelled alcohol and Mr. Hopp’s eyes

were bloodshot, Mr. Hopp acknowledged having only a couple drinks, and Deputy Breeden

stated that Mr. Hopp’s speech was “slightly, slightly slurred. Not real bad, but slightly.”

{¶12} Based upon the totality of facts and circumstances of this particular case, we

conclude that there was not sufficient evidence to cause a prudent person to believe that Mr.

Hopp was driving while impaired. Accordingly, we agree that the trial court erred in

determining that there existed probable cause for Mr. Hopp’s arrest, and we sustain Mr. Hopp’s

second assignment of error. 6

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT DETERMINED THAT [MR. HOPP] WAS PRECLUDED FROM CHALLENGING THE STRUCTURE OF THE OVI CHECKPOINT[.]

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED WHEN IT FOUND THAT [MR. HOPP’S] BREATH TEST SUBSTANTIALLY COMPLIED WITH R.C. 3701.143[.]

{¶13} In his first assignment of error, Mr. Hopp argues that the trial court erred when it

determined that Mr. Hopp did not sufficiently challenge the constitutionality of the sobriety

checkpoint in his motion to suppress. In his third assignment of error, Mr. Hopp argues that the

trial court erred in concluding that that the breath test administered to Mr. Hopp substantially

complied with the requirements of the Ohio Administrative Code.

{¶14} We concluded above that the officers lacked probable cause to arrest Mr. Hopp.

Based upon our resolution of the second assignment of error, Mr. Hopp’s first and third

assignments of error are moot, and we decline to address them. See App.R. 12(A)(1)(c).

III.

{¶15} Mr. Hopp’s second assignment of error is sustained. We do not reach the merits

of Mr. Hopp’s first and third assignments of error, as they have been rendered moot. The

judgment of the trial court is reversed, and this matter is remanded for further proceedings

consistent with this decision.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. 7

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

Court, County of Summit, 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 Appellee.

CARLA MOORE FOR THE COURT

WHITMORE, J. SCHAFER, J. CONCUR.

APPEARANCES:

JUSTIN M. WEATHERLY, Attorney at Law, for Appellant.

EVE V. BELFANCE, Director of Law, and BRIAN D. BREMER, Assistant Director of Law, for Appellee.