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State of Ohio v. James L. Simmons

October 28, 2011

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JAMES L. SIMMONS
DEFENDANT-APPELLANT



Trial Court Case No. 09-TRC-2384 (Criminal Appeal from Montgomery County Municipal Court - Western Division)

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

Cite as

State v. Simmons,

OPINION

{¶1} Defendant-appellant James L. Simmons appeals from his conviction and sentence for Operating a Motor Vehicle While Under the Influence of Alcohol, R.C. 4511.19(A)(1)(a).

{¶2} Simmons contends that the trial court erred in overruling his motion to suppress because the trial court incorrectly found that there was reasonable articulable suspicion to justify the officer's request that he perform field sobriety tests (FST). Next, Simmons argues that certain statements made during the traffic stop should also be suppressed because he was not given the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Finally, Simmons argues that the trial court failed to state on the record its findings of fact material to its determination of his motion to suppress.

{¶3} We conclude that there was reasonable and articulable suspicion justifying the administration of field sobriety tests. We also conclude that Simmons was not in custody when he made the statements he sought to suppress, so that they were not subject to the requirements of Miranda v. Arizona. Finally, we conclude that Simmons did not request findings of fact, so that the trial court did not err in failing to provide them. Accordingly, the judgment of the trial court is Affirmed.

I

{¶4} One early morning in June 2009, Deputy Walt Steele of the Montgomery County Sheriff's Department came upon Simmons, who was driving a 1975 Chevy truck. Deputy Steele observed the truck weaving within its own lane and decided to run the license plate number. Deputy Steele discovered that the license plates were registered to a 1991 Buick. Deputy Steele stopped the truck because of the fictitious plates. The stop occurred in the parking lot of a bar.

{¶5} Deputy Steele asked Simmons if he was aware that the plates on the 1975 Chevy were registered to another vehicle. Simmons explained that the truck belonged to his niece, and he did not know about the fictitious plates. Deputy Steele testified that during this conversation, "I could smell a strong odor of alcohol coming from his breath. I noticed that his eyes were red and watery and I noticed that he was real slow answering my questions and kind of turning away from me, appearing confused." When questioned, Simmons denied having consumed alcohol. Deputy Steele then performed a Horizontal Gaze Nystagmus test, with a simple instruction to "follow with his eyes." Deputy Steele concluded that this test provided further support for his suspicion that Simmons was impaired. Steele requested Simmons to exit the vehicle and move to the back of the Steele's cruiser. Deputy Steele noted that Simmons was "slow and unsteady on his feet," when getting out of the truck.

{¶6} In Deputy Steel's police report, which he prepared immediately following the stop, Steele noted that Simmons was taking medication for diabetes, there was an odor of alcoholic beverage, his clothing was orderly, his attitude was sleepy, cooperative, and polite, his eyes were only bloodshot, and his speech was only fair. There were options on the police report form concerning the suspect's eyes and speech which were unchecked, such as "watery" and "confused." In the incident report Deputy Steele wrote later that morning, Steele noted that he smelled an odor of alcohol coming from Simmons, that Simmons's speech was slow, and that Simmons appeared confused.

{¶7} During the walk to Deputy Steele's cruiser, Steele again asked Simmons how many alcoholic drinks he had consumed. Again, Simmons denied having consumed any alcoholic beverages. After Simmons entered the rear of the police cruiser, Deputy Steele ran Simmons's license on his computer, which showed that Simmons was driving with a suspended license and had a previous Operating a Vehicle Under the Influence conviction. While in the police cruiser, Deputy Steele could smell the alcohol "even stronger" and, once again, asked Simmons how many alcoholic beverages he had consumed. At this time, Simmons admitted to consuming one beer. Deputy Steele then asked Simmons to perform several FST's and Simmons agreed to do so. Simmons was not handcuffed, but Deputy Steele acknowledged that he would not have let Simmons leave.

{¶8} Deputy Steele performed another HGN test, a walk-and-turn test, and a one-leg stand test. Deputy Steele noted on his report that Simmons tallied six out of six indicators, five out of eight indicators, and two out of four indicators, respectively, on the tests. In Deputy Steele's opinion, based on his training and experience, Simmons was under the influence. Simmons was given Miranda warnings at 2:01 a.m., and was advised of the offenses with which he was being charged. The total time of the stop was approximately half an hour.

{ΒΆ9} Simmons was cited for Unauthorized Use of Plates, driving under an ALS suspension, and Operating a Motor Vehicle Under the Influence. After his motion to suppress was heard and denied, Simmons pled no contest to Operating a Motor ...


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