[Cite as State v. Patel, 2013-Ohio-3300.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 2012CA00190 : VIKRAMKUMAR PATEL : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court Case No. 2012 TRC 05341
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 15, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOSEPH MARTUCCIO JEFFRY V. SERRA CANTON CITY LAW DIRECTOR THE FERRUCCIO LAW FIRM, L.P.A. ANTHONY RICH 220 Market Ave. S. 218 Cleveland Ave. SW 400 Huntington Plaza Canton, OH 44702 Canton, OH 44702 Stark County, Case No. 2012CA00190 2
Delaney, J.
{¶1} Appellant Vikramkumar Patel appeals from the October 1, 2012 judgment
entry of the Canton Municipal Court overruling his motion to suppress. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose around midnight on October 20, 2012 when Ptl. Buzzard
of the North Canton City Police Department observed appellant’s vehicle at the
intersection of South Main Street and Everhard Road S.W., Hoover Township, North
Canton, Stark County. Buzzard noticed the license plate of the gray Pontiac Grand-Am
had a blue date sticker on the license plate, indicating it expired in 2011. Buzzard
checked the vehicle registration, verified the plate actually expired on January 1, 2012,
and began to follow the vehicle.
{¶3} Buzzard initiated a traffic stop in a parking lot and made contact with the
driver, appellant. He advised appellant of the reason for the stop and noticed the strong
odor of alcohol emanating from appellant, who also had bloodshot eyes. Buzzard
asked appellant whether he’d had anything to drink, and appellant replied that he’d
gone to a party after work and had a few drinks. Buzzard told appellant he stopped him
for an expired plate and appellant repeated several times that he had a “small license”
or a “little license.” Buzzard did not understand what appellant meant until he stepped
back from the vehicle and noticed a (valid) temporary tag laying flat on the vehicle’s
back speaker ledge.
{¶4} Upon cross-examination, Buzzard acknowledged the vehicle would be in
compliance if the temporary tag had been properly displayed in the license plate holder; Stark County, Case No. 2012CA00190 3
however, it was not. Buzzard explained appellant displayed expired plates, and the
temporary tag was not visible on the back ledge.
Administration of SFSTs and Arrest
{¶5} Once backup arrived on the scene, Buzzard asked appellant to submit to
standardized field sobriety tests (SFSTs). On the horizontal gaze nystagmus (HGN)
test, appellant exhibited three clues of impairment in each eye: lack of smooth pursuit,
onset of nystagmus at 45 degrees, and clear and distinct nystagmus at maximum
deviation. On the walk-and-turn test, appellant exhibited a number of clues of
impairment: he was unable to maintain the proper stance while listening to instructions,
failed to touch heel to toe, raised his arm for balance, and stepped off the line while
performing the test. Finally, during the one-leg stand, appellant exhibited several clues
of impairment: he failed to look at his toe, told Buzzard he’d be unable to count by
thousands, and put his foot down, stopping the test and starting again.
{¶6} Buzzard administered a portable breath test to verify whether the source
of appellant’s apparent impairment was alcohol. The portable breath test result was
“.115.” Buzzard arrested appellant for O.V.I.
{¶7} After being placed under arrest, appellant stated he wanted to tell the truth
and that he’d had more than three drinks that night. Buzzard transported appellant to
the North Canton Police Department where another officer administered a breath test
on the department’s Intoxilyzer 8000. Appellant’s breath test result was “.113.”
Certification of the Intoxilyzer 8000
{¶8} The North Canton Police Department’s Intoxilyzer 8000, Instrument No.
80-004401, was certified by the Ohio Department of Health (O.D.H.) on July 10, 2011. Stark County, Case No. 2012CA00190 4
Appellant’s breath test was performed on August 20, 2012. Intoxilyzer 8000 No. 80-
004401 was certified again on August 28, 2012. Sgt. Mizner of the North Canton Police
Department testified that certification by O.D.H. was to be performed once every
calendar year; O.D.H. would usually certify the machine when personnel were present
at the police department to do other tasks, such as re-certify officers. Sgt. Mizner asked
O.D.H. personnel to clarify what was meant by certification within a “calendar year,” and
was told that certification anytime within the “federal calendar year” would suffice. In
this case, therefore, the machine was certified in calendar year 2011 (July 10, 2011)
and calendar year 2012 (August 28, 2012) and the fact that the certifications were over
13 months apart did not negatively affect the certifications.
Suppression Motion and Plea of No Contest
{¶9} The trial court overruled appellant’s motion to suppress. Appellant
entered pleas of no contest to one count of O.V.I. and one count of expired tag, and
was sentenced to a jail term of 180 days with 177 suspended, with the remaining three
days to be served in a Driver Intervention Program; 25 hours of community service; a
180-day suspension of his operator’s license; and a fine and court costs.
{¶10} Appellant now appeals from the October 1, 2012 judgment entry of the
trial court overruling his motion to suppress.
{¶11} Appellant raises four assignments of error: Stark County, Case No. 2012CA00190 5
ASSIGNMENTS OF ERROR
{¶12} “I. THE TRIAL COURT ERRED IN FINDING THAT OFFICER BUZZARD
HAD A REASONABLE, ARTICULABLE SUSPICION OF A CRIMINAL ACTIVITY TO
STOP THE APPELLANT’S VEHICLE WHEN THE APPELLANT’S VEHICLE WAS
EQUIPPED WITH A VALID TEMPORARY LICENSE PLATE.”
{¶13} “II. THE TRIAL COURT ERRED IN FINDING THAT OFFICER BUZZARD
HAD A REASONABLE, ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY TO
REQUEST THE APPELLANT TO EXIT HIS VEHICLE TO PERFORM FIELD
SOBRIETY TESTS.”
{¶14} “III. THE TRIAL COURT ERRED IN FINDING THAT OFFICER BUZZARD
HAD PROBABLE CAUSE TO ARREST THE APPELLANT FOR OVI.”
{¶15} “IV. THE TRIAL COURT ERRED IN ADMITTING THE APPELLANT’S
BREATH TEST RESULTS OBTAINED FROM THE INTOXILYZER 8000, SERIAL #80-
004401, AS THE MACHINE WAS NOT PROPERLY CERTIFIED ONCE EVERY
CALENDAR YEAR IN ACCORDANCE WITH O.A.C. 3701-53-04(C).”
ANALYSIS
I., II., III.
{¶16} Appellant’s first three assignments of error address whether the arresting
officer had reasonable and articulable suspicion to stop appellant’s vehicle and require
him to perform standardized field sobriety tests, and whether probable cause existed for
appellant’s arrest for O.V.I., and will be addressed together.
{¶17} Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, Stark County, Case No. 2012CA00190 6
713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the
role of trier of fact and, as such, is in the best position to resolve questions of fact and to
evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030
(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,
145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate
court must independently determine as a matter of law, without deference to the trial
court’s conclusion, whether the trial court’s decision meets the applicable legal
standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),
overruled on other grounds.
{¶18} There are three methods of challenging a trial court’s ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court’s findings of fact are against the manifest weight of the evidence. See, State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed
to apply the appropriate test or correct law to the findings of fact. In that case, an
appellate court can reverse the trial court for committing an error of law. See, Williams,
supra. Finally, an appellant may argue the trial court has incorrectly decided the
ultimate or final issues raised in a motion to suppress. When reviewing this type of
claim, an appellate court must independently determine, without deference to the trial
court’s conclusion, whether the facts meet the appropriate legal standard in any given
case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994). Stark County, Case No. 2012CA00190 7
{¶19} In this case, appellant argues the trial court incorrectly determined the
arresting officer did have reasonable and articulable suspicion to stop his vehicle and to
require him to perform SFSTs, and incorrectly determined probable cause existed to
arrest appellant for O.V.I. We agree with the trial court’s conclusions for the following
reasons.
Reasonable and Articulable Suspicion to Stop Appellant’s Vehicle
{¶20} The Fourth Amendment to the United States Constitution prohibits
warrantless searches and seizures, rendering them per se unreasonable unless an
exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d
576 (1967). An investigative stop, or Terry stop, is a common exception to the Fourth
Amendment warrant requirement. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d
889 (1968). Because the “balance between the public interest and the individual’s right
to personal security” tilts in favor of a standard less than probable cause in such cases,
the Fourth Amendment is satisfied if the officer’s action is supported by reasonable
suspicion to believe that criminal activity “may be afoot.” United States v. Brignoni-
Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v.
Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In Terry, the Supreme
Court held that a police officer may stop an individual if the officer has a reasonable
suspicion based upon specific and articulable facts that criminal behavior has occurred
or is imminent. See, State v. Chatton, 11 Ohio St.3d 59, 61, 463 N.E.2d 1237 (1984).
{¶21} The propriety of an investigative stop must be viewed in light of the totality
of the circumstances surrounding the stop “as viewed through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they Stark County, Case No. 2012CA00190 8
unfold.” State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991); State v.
Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489 (1988). The Supreme Court of the
United States has re-emphasized the importance of reviewing the totality of the
circumstances in making a reasonable suspicion determination:
When discussing how reviewing courts should make reasonable-
suspicion determinations, we have said repeatedly that they must
look at the “totality of the circumstances” of each case to see
whether the detaining officer has a “particularized and objective
basis” for suspecting legal wrongdoing. This process allows
officers to draw on their own experience and specialized training to
make inferences from and deductions about the cumulative
information available to them that “might well elude an untrained
person.” Although an officer’s reliance on a mere “hunch” is
insufficient to justify a stop, the likelihood of criminal activity need
not rise to the level required for probable cause, and it falls
considerably short of satisfying a preponderance of the evidence
standard. United States v. Arvizu, 534 U.S. 266, 273, 122
S.Ct.744, 151 L.Ed.2d 740 (2002), citing United States v. Cortez,
449 U.S. 411, 417-418 (1981).
{¶22} Traffic stops based upon observation of a traffic violation are
constitutionally permissible. Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 1996-Ohio-
431, 665 N.E.2d 1091. This Court has held that any traffic violation, even a de minimis
violation, may form a sufficient basis upon which to stop a vehicle. State v. Bangoura, Stark County, Case No. 2012CA00190 9
5th Dist. No. 08 CA 95, 2009-Ohio-3339, ¶ 14, citing State v. McCormick, 5th Dist. No.
2000CA00204, 2001 WL 111891 (Feb. 2, 2001). Buzzard’s observation of the expired
tag supports his stop of appellant’s vehicle. Appellant argues that “once Buzzard saw *
* * a valid temporary license plate displayed in the rear window, there was no longer any
reasonable, articulable suspicion of criminal activity * * *.” This statement is contrary to
Buzzard’s testimony at the hearing, however. The temporary tag was not properly
displayed in the rear window; it was laying on the ledge, out of the officer’s view (T. 20-
21). We find Buzzard properly stopped appellant for expired plates.
Reasonable and Articulable Suspicion to Administer SFSTs
{¶23} Upon making contact with appellant, Buzzard noticed the strong odor of
an alcoholic beverage and appellant’s bloodshot eyes. In response to Buzzard’s
inquiry, appellant admitted he had been drinking. Appellant argues the smell of alcohol
alone is insufficient to give rise to reasonable, articulable suspicion to administer
SFSTs. We note, however, Buzzard testified to the additional factors of bloodshot eyes
and an admission of drinking.
{¶24} It is well-established that an officer may not request a motorist to perform
field sobriety tests unless that request is independently justified by reasonable suspicion
based upon articulable facts that the motorist is intoxicated. State v. Evans, 127 Ohio
App.3d 56, 62, 711 N.E.2d 761(11th Dist.1998), citing State v. Yemma, 11th Dist. No.
95-P-0156, unreported, 1996 WL 495076 (Aug. 9, 1996). Reasonable suspicion is “ * * *
something more than an inchoate or unparticularized suspicion or hunch, but less than
the level of suspicion required for probable cause.” State v. Shepherd, 122 Ohio App.3d
358, 364, 701 N.E.2d 778 (2nd Dist.1997). “A court will analyze the reasonableness of Stark County, Case No. 2012CA00190 10
the request based on the totality of the circumstances, viewed through the eyes of a
reasonable and prudent police officer on the scene who must react to events as they
unfold.” Village of Kirtland Hills v. Strogin, 11th Dist. No.2005-L-073, 2006-Ohio-1450, at
¶ 13, citing Village of Waite Hill v. Popovich, 11th Dist. No.2001-L-227, 2003-Ohio-1587,
at ¶ 14.
{¶25} Generally, “[w]here a non-investigatory stop is initiated and the odor of
alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication,
such as an admission of having consumed alcohol, reasonable suspicion exists.” State
v. Wells, 2nd Dist. No. 20798, 2005-Ohio-5008; State v. Cooper, 2nd Dist. No. 2001-
CA-86, 2002-Ohio-2778; State v. Robinson, Greene App. No. 2001-CA-118, 2002-Ohio-
2933; State v. Mapes, 6th Dist. No. F-04-031, 2005-Ohio-3359 (odor of alcohol, ‘slurred
speech’ and glassy and bloodshot eyes); Village of Kirtland Hills v. Strogin, supra; State
v. Beeley, 6th Dist. No. L-05-1386, 2006-Ohio-4799, paragraph 16, New London v.
Gregg, 6th Dist. No. H-06-030, 2007-Ohio-4611. Those are exactly the factors
established by appellee in this case, and we therefore find the officer had reasonable
and articulable suspicion to administer the SFSTs.
{¶26} Appellant argues that pursuant to the holdings in State v. Spillers, 2nd
Dist. No. 1504, unreported, 2000 WL 299550 (Mar. 24, 2000) and State v. Stricklin, 6th
Dist. No. L-10-1277, 2012-Ohio-1877, there was insufficient indicia of impairment to
conduct field sobriety tests. In both case, courts determined that a de minimis traffic
violation, “slight” odor of alcohol and admission to having consumed a “couple” of drinks
was insufficient to justify the performance of field sobriety tests. We find the present
case to be distinguishable. We have already found Buzzard had a sufficient basis upon Stark County, Case No. 2012CA00190 11
which to stop appellant's vehicle, based upon the expired plates. We find that the totality
of the circumstances beyond appellant's traffic violation gave Buzzard sufficient indicia
of intoxication to establish a reasonable suspicion to request appellant to submit to field
sobriety testing. State v. Strope, 5th Dist. No. 08 CA 50, 2009-Ohio-3849, ¶ 20. Upon
speaking to appellant, Buzzard noticed a “strong” odor of alcohol; appellant’s eyes were
bloodshot; and appellant admitted to having “a few” drinks. Based on the totality of the
circumstances, we find Buzzard had sufficient indicia of intoxication to establish a
reasonable suspicion to request appellant to submit to field sobriety testing. Id.
{¶27} The trial court did not err in finding Buzzard had reasonable, articulable
suspicion to administer SFSTs.
Probable Cause to Arrest Appellant for OVI
{¶28} In his third assignment of error, appellant argues Buzzard lacked probable
cause to arrest him for O.V.I. under the totality of the circumstances because he did not
slur his speech, he was cooperative and not belligerent, there is no indication of any
erratic driving, and he was able to perform some aspects of the SFSTs.
{¶29} A police officer has probable cause for an arrest if the facts and
circumstances within his knowledge are sufficient to cause a reasonably prudent person
to believe that the defendant has committed the offense. State v. Cummings, 5th
Dist.No.2005–CA–00295, 2006–Ohio–2431, ¶ 15, citing State v. Heston, 29 Ohio St.2d
152, 280 N.E.2d 376 (1972). In making this determination, the trial court must examine
the totality of facts and circumstances surrounding the arrest. See State v. Miller, 117
Ohio App.3d 750, 761, 691 N.E.2d 703 (11th Dist.1997); State v. Brandenburg, 41 Ohio
App.3d 109, 111, 534 N.E.2d 906 (2nd Dist.1987). A police officer does not have to Stark County, Case No. 2012CA00190 12
observe poor driving performance in order to effectuate an arrest for driving under the
influence of alcohol if all the facts and circumstances lead to the conclusion that the
driver was impaired. See State v. Harrop, 5th Dist. No. CT2000–0026, unreported, 2001
WL 815538, (July 2, 2001), *2, citing Atwell v. State, 35 Ohio App.2d 221, 301 N.E.2d
709 (8th Dist.1973).
{¶30} Both parties cite our decision in State v. Shullo, in which we referenced an
eleven-part test of probable cause articulated by the Eleventh District. State v. Shullo,
5th Dist. No. 2010 CA 00261, 2011-Ohio-1619, ¶ 13, citing State v. Evans, 127 Ohio
App.3d 56, 711 N.E.2d 761 (11th Dist.1998). In this case, appellee presented evidence
of a number of factors from the Shullo case establishing probable cause to arrest,
including a stop just after midnight, a strong odor of alcohol emanating from appellant
along with bloodshot eyes, an admission of drinking, six clues on the HGN test, five
clues on the walk-and-turn test, and three clues on the one-leg stand test. We find
Buzzard had probable cause to arrest appellant for O.V.I.
{¶31} For the foregoing reasons, appellant’s first, second, and third assignments
of error are overruled.
IV.
{¶32} In his fourth assignment of error, appellant argues the trial court erred in
admitting the results of the Intoxilyzer 8000, Instrument No. 80-004401, because the
machine was not properly certified in accordance with Ohio Adm. Code 3701-53-04(C).
We disagree.
{¶33} This case presents us with an issue of interpretation of a regulation
adopted by O.D.H. Ohio Adm. Code 3701-53-04(C) states in pertinent part: Stark County, Case No. 2012CA00190 13
Representatives of the director shall perform an instrument
certification on approved evidential breath testing instruments * * *
using a solution containing ethyl alcohol approved by the director of
health according to the instrument display for the instrument being
certified. An instrument shall be certified no less frequently
than once every calendar year or when the dry gas standard
on the instrument is replaced, whichever comes first.
Instrument certifications are valid when the certification results are
at or within five one-thousandths grams per two hundred ten liters
of the target value for that approved solution. Instruments with
certification results outside the range specified in this paragraph will
require the instrument be removed from service until the instrument
is serviced or repaired. Certification results shall be retained in a
manner proscribed by the director of health. (Emphasis added).
The specific issue in this case is whether the Intoxilyzer 8000 was required to be
certified within 365 days of the last certification, as appellant argues, or whether
certification within calendar year 2012 was sufficient, as appellee contends.
{¶34} Precision in language is instructive in this context. A “year” means twelve
consecutive months. R.C. 1.44(B). In State ex rel. Gareau v. Stilllman, the Ohio
Supreme Court considered the meaning of the phrase “calendar year” as contained
within the (former) R.C. 3213.191. 18 Ohio St.2d 63, 247 N.E.2d 461 (1969). The
Court stated: Stark County, Case No. 2012CA00190 14
It is a fundamental principle of statutory construction that words in a
statute should be construed in their ordinary and natural meaning,
and be given the meaning ordinarily attributed to them unless a
different intention appears in the statute. [Citation omitted]. The
words “calendar year” are commonly and ordinarily accepted as
meaning the period of time from January 1 through December 31.
[Citations omitted]. * * * *. The only purpose of changing the
general word “year,” which means a period of 365 days and which
is susceptible of different meanings so far as the time within the
365-day period should begin and end, to the specific words
“calendar year” would be to adopt words which have a definite and
common meaning as to the beginning and ending of the 365-day
period which constitutes a year. As pointed out above, the words
“calendar year” designate a period of time from January 1 through
December 31. * * * *.
State ex rel. Gareau v. Stilllman, 18 Ohio St.2d at 64-65.
{¶35} We find, therefore, that the meaning of “calendar year” within Ohio Adm.
Code refers to the period from January 1 through December 31. North Canton’s
Intoxilyzer 8000, Instrument No. 80-004401, was therefore properly certified in the
“calendar year” 2011 (July 10, 2011) and the “calendar year” 2012 (August 28, 2012),
and the trial court properly overruled the motion to suppress the Intoxilyzer result.
{¶36} We find this interpretation of “calendar year” to be consistent with Ohio’s
approach to time period in statutes and regulations. The general rule is that when a Stark County, Case No. 2012CA00190 15
statute or regulation uses a certain time period, whether hours, days, weeks, months, or
years, counting is done only in terms of units of that time period and any act done
during the duration of the last time period is timely. State v. Bowman, 108 Ohio App.3d
276, 278, 670 N.E.2d 554 (5th Dist.1996), citing State v. Waugh, 4th Dist. No. 90 CA
24, unreported, 1991 WL 110226 (June 17, 1991).
{¶37} Appellant’s fourth assignment of error is overruled.
CONCLUSION
{¶38} Having overruled appellant’s four assignments of error, the judgment of
the Canton Municipal Court is affirmed.
By: Delaney, J. and
Wise, P.J.
Baldwin, J., concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. CRAIG R. BALDWIN