State v. Farey

110 N.E.3d 960, 2018 Ohio 1466
CourtCourt of Appeals of Ohio, Fifth District, Stark County
DecidedApril 16, 2018
DocketNo. 2017CA00137
StatusPublished
Cited by12 cases

This text of 110 N.E.3d 960 (State v. Farey) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Fifth District, Stark County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Farey, 110 N.E.3d 960, 2018 Ohio 1466 (Ohio Super. Ct. 2018).

Opinion

Wise, Earle, J.

*962{¶ 1} Defendant-appellant Scott Farey appeals the June 12, 2017 decision of the Massillon Municipal Court, Stark County, Ohio, overruling his motion to suppress. Plaintiff-appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On November 24, 2016 at 12:20 a.m., Lieutenant Haymaker of the Ohio State Highway Patrol was conducting routine patrol. He noticed appellant travelling at what appeared to be faster than the posted limit of 40 miles per hour. Lt. Haymaker followed appellant's vehicle and activated his ground radar. He clocked appellant traveling at 49 miles per hour. He further noted a slight sideways movement of the vehicle, but appellant never left his lane of travel. Lt. Haymaker activated his overhead lights and pulled appellant over.

{¶ 3} Upon making contact with appellant, Lt. Haymaker noticed appellant smelled of alcohol, had glassy bloodshot eyes and a flushed face. Asked where he was coming from, appellant stated he had just picked his girlfriend up from a bar. Appellant denied he had been drinking. Appellant's speech and motions were slow as he gave Lt. Haymaker his license.

{¶ 4} Lt. Haymaker performed a preliminary horizontal gaze nystagmus (HGN) test while appellant was still seated in his vehicle and noted nystagmus present. He asked appellant if he was sure he had not been drinking, and appellant responded he had one drink while waiting for his girlfriend.

{¶ 5} Based on his observations and appellant's changing alcohol consumption claim, Lt. Haymaker asked appellant to exit his vehicle for field sobriety testing. He first placed appellant in his cruiser to perform complete HGN testing. Appellant exhibited six of six clues. Lt. Haymaker had appellant perform two other tests. He observed one of five clues on the one-legged stand and two of eight clues on walk and turn. He placed appellant under arrest and transported him to the Highway Patrol post. On the way, appellant stated he had two beers and had smoked marijuana around 8:00 p.m.

{¶ 6} At the post, appellant submitted to a breath alcohol test, and at .073, was under the legal limit for alcohol.

{¶ 7} Appellant also provided a urine sample which was sent to the Ohio State Highway Patrol laboratory for testing. Appellant's urine later tested positive for cocaine and marijuana.

{¶ 8} Appellant was cited for speeding in violation of R.C. 4511.21(C) and operating a vehicle under the influence of alcohol or drugs (OVI) in violation of R.C. 4511.19(A)(1)(a). He entered pleas of not guilty and filed a motion to suppress. Appellant argued Lt. Haymaker had no reasonable, articulable suspicion to ask him to exit his vehicle to perform sobriety tests, and no probable cause to arrest him for OVI.

*963{¶ 9} On May 18, 2017, a hearing was held on the matter. The state presented evidence from Lt. Haymaker as well as Edward Yingling of the Ohio State Highway Patrol's crime lab.

{¶ 10} Yingling testified appellant's urine contained prohibited amounts of both marijuana and cocaine. Under R.C. 4511.19(A)(1)(a), the per se limit for marijuana metabolite levels in urine is 35 nanograms per milliliter. Appellant's urine contained 114 nanograms per milliliter.

{¶ 11} As for cocaine, the per se limit is 150 nanograms per milliliter. Yingling testified appellant's urine contained 646 nanograms per milliliter. Appellant's urine also contained benzoylecgonine, a metabolite of cocaine. The per se cocaine metabolite level is 150 nanograms per milliliter. Yingling found that appellant's urine contained 1700 nanograms per milliliter.

{¶ 12} After hearing the evidence, the trial court found on the record:

* * * I think the stop was fine. I think there was speed. I saw [appellant] pulling away and so I think there was a reasonable suspicion for the stop um regardless of any lane violation that I didn't see or movement that I didn't see. When he got [to appellant's vehicle] he noticed obviously a smell of an odor of alcohol, defendant having denied drinking at all, but noticed his eyes were glassy, flushed face um later the defendant admitted to one drink, then two drinks um his speech sounded really slow to me um he had a hard time or took time finding his operator's license. I thought there was a reasonable suspicion to remove him from the vehicle. The HGN * * *, he found six out of six clues. The walk and turn test and the one-leg stand test um he did them about as well as I think you could probably do them, so I think there may have ... there was an initial um fall, not fall, but movement of his feet on the walk and turn test, but then he performed the test, I thought, perfectly. And yeah the turn wasn't exactly right, but he did a quicker turn than he's supposed to do and he kept his balance through it all, so I thought he did that well * * *. I thought he did well on the one-leg stand. I don't think that gave it probable cause. I think probable cause was found because of the initial reasons for getting him out of the car um the smell of alcohol, the not telling the truth about the drinking and that the HGN um six out of six clues and it just didn't add up with the flush face and the slow speed, so I thought he was right to take him and test him.

{¶ 13} On June 12, 2017, the trial court issued its judgment finding reasonable articulable suspicion for the stop, adequate indicia of impairment to continue the investigation, and from the totality of the circumstances, probable cause to arrest.

{¶ 14} Appellant entered a plea of no contest. The trial court found appellant guilty and convicted him. Appellant was then sentenced to 180 days in the Stark County Jail with 110 days suspended. For the balance, appellant was ordered to serve 10 days in the Stark County Jail and 60 days of electronically monitored house arrest. Appellant's operator's license was suspended for three years and assessed 6 points. He was ordered to obtain a drug and alcohol assessment and follow all treatment recommendations. Finally, appellant was ordered to pay a fine and court costs.

{¶ 15} With the exception of the operator's license suspension, appellant's sentence was stayed pending this appeal. Appellant raises two assignments of error:

I

{¶ 16} "THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION

*964TO SUPPRESS EVIDENCE BECAUSE LIEUTENANT HAYMAKER LACKED A REASONABLE, ARTICULABLE SUSPICION THAT THE APPELLANT WAS DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS TO REQUEST THE APPELLANT TO EXIT HIS VEHICLE TO PERFORM FIELD SOBRIETY TESTS IN VIOLATION OF THE APPELLANT'S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES."

II

{¶ 17} "THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE ARRESTING OFFICER LACKED PROBABLE CAUSE TO ARREST THE APPELLANT FOR OVI."

{¶ 18} First, as stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821

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Cite This Page — Counsel Stack

Bluebook (online)
110 N.E.3d 960, 2018 Ohio 1466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-farey-ohctapp5stark-2018.