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State of Ohio v. Brian Garber

October 21, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BRIAN GARBER DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 2009 TRC 5900

The opinion of the court was delivered by: Wise, J.

Cite as State v. Garber,

JUDGES: Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

JUDGMENT: Affirmed

{¶1} Defendant-Appellant Brian M. Garber appeals the October 26, 2010, Judgment Entry of the Morrow County Municipal Court overruling his motion to suppress.

{¶2} Plaintiff-Appellee State of Ohio did not file a brief in this matter.

STATEMENT OF THE FACTS AND CASE

{¶3} On December 12, 2009, State Highway Patrol Officer Morris Johnson was working the 11:00 p.m. to 7:00 a.m. shift on Interstate 71. At or about 3:00 a.m. he observed a vehicle that "appeared to be traveling over the posted speed limit." (T. at 20). After the vehicle passed the location where the Trooper was parked he turned around at the nearest crossover and pursued the vehicle northbound. Trooper Johnson stated that he observed the vehicle drift over the right of the fog line, and he proceeded to stop Appellant's vehicle. (T. at 21-22).

{¶4} Trooper Johnson testified that while he was talking to Appellant, he noticed that his eyes were red and glassy, his speech was slurred and his body motions were slow. (T. at 22). He further observed a moderate odor of alcohol coming from Appellant's breath as he spoke. (T. at 22).

{¶5} Based on these observations, Trooper Johnson stated that he thought Appellant "might have been impaired" and that he asked Appellant to perform field sobriety tests which included the one-legged stand, the walk and turn and also the horizontal gaze nystagmus test. (HGN). (T. at 24).

{¶6} Appellant scored six clues on the HGN test. (T. at 29-34). On the one- leg-stand test, Appellant swayed, raised his arms for balance, hopped and failed to look at his raised foot as instructed. (T. at 34-37). During the walk and turn test, Appellant failed to touch heel to toe on a couple of steps, raised his arm approximately six inches for balance, stepped off the line while walking and turned in the wrong direction. (T. at 38-40)

{¶7} Based on his observation and Appellant's performance on the tests, Trooper Johnson arrested Appellant and transported him to the Morrow County jail where he submitted to a breathalyzer test which indicated Appellant had a BAC of .118.

{¶8} Appellant was charged with OVI, in violation of R.C. §4511.19(A)(1)(a) and (A)(1)(d) and with Speeding, in violation of R.C. §4511.21(D)(2).

{¶9} On June 7, 2010, following a number of trial continuances, Appellant filed a Motion to Suppress.

{¶10} On August 9, 2010, the trial court held a hearing on Appellant's motion.

{¶11} At the hearing, the trial court heard testimony from Trooper Johnson.

{¶12} On October 26, 2010, the trial court filed a detailed eleven-page Judgment Entry denying Appellant's motion to suppress.

{¶13} On January 18, 2011, Appellant entered a plea of no contest.

{¶14} By Judgment Entry filed January 18, 2011, the trial court sentenced Appellant to 60 days in jail and a $1,000 fine, with 57 days and $600 suspended upon certain conditions.

{¶15} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶16} "I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT RULE [SIC] THAT DEFENDANT WAS STOPPED BASED UPON A REASONABLE AND ARTICULABLE SUSPICION.

{ΒΆ17} "II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS CONSENT WAS NOT OBTAINED PRIOR TO ...


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