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State v. Muller

Court of Appeals of Ohio, Fifth District, Delaware

July 29, 2013

STATE OF OHIO Plaintiff-Appellee
v.
EUGENE MULLER Defendant-Appellant

Appeal from the Delaware Municipal Court, Case No. 12 TRC 07370

For Plaintiff-Appellee JOSEPH E. SCHMANSKY

For Defendant-Appellant: MICHAEL A. MARROCCO

Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

Delaney, J.

{¶1} Defendant-Appellant Eugene Muller appeals the September 7, 2012 judgment entry of the Delaware Municipal Court denying Muller's motion to suppress.

FACTS AND PROCEDURAL HISTORY

{¶2} On June 26, 2012, Defendant-Appellant Eugene Muller was cited for operating a motor vehicle under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(h); marked lanes violation, in violation of R.C. 4511.33; and child endangering. Muller filed a plea of not guilty.

{¶3} Muller filed a motion to suppress on August 6, 2012. He requested the trial court suppress any and all information gathered by law enforcement from the illegal stop of Muller, because the initial seizure of Muller was accomplished in the absence of any reasonable and articulable suspicion or probable cause that Muller had violated any law. Muller also argued the BAC test was not administered in substantial compliance with Ohio Department of Health rules and regulations. Muller does not raise this second issue on appeal.

{¶4} A hearing on the motion to suppress was held before the trial court on August 30, 2012. The following facts were adduced at the suppression hearing.

{¶5} On June 23, 2012, Trooper Frank Applegate with the Ohio State Highway Patrol was patrolling southbound on U.S. 23 in Delaware County, Ohio. Trooper Applegate observed Muller driving in the right lane, approximately ten miles per hour below the speed limit. As Trooper Applegate ran a check of Muller's license plate, the officer testified he observed Muller drive over the right fog line onto the shoulder approximately by two to three tire widths. Trooper Applegate initiated a traffic stop of Muller's vehicle around 1:19 a.m. In the vehicle were Muller, his minor son, and dog.

{¶6} Trooper Applegate testified the basis for the traffic stop was a marked lanes violation for traveling over the white fog line and back into his lane.

{¶7} Trooper Applegate's vehicle was equipped with video equipment. The video recording of the traffic stop was played to the trial court and admitted into evidence as State's Exhibit 1.

{ΒΆ8} After the traffic stop, Trooper Applegate administered field sobriety tests to Muller. The parties stipulated at the hearing that the officer administered the field sobriety tests in substantial compliance with the NHTSA standards. Based on the administration of the field sobriety tests, Trooper Applegate placed Muller under arrest for operating a vehicle while under the influence of alcohol or drugs. Trooper Applegate administered the breath ...


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