Criminal Appeal from the Berea Municipal Court Case No. 11 TRC 05221.
ATTORNEY FOR APPELLANT Patrick D. Quinn.
ATTORNEY FOR APPELLEE Peter H. Hull Law Director City of Middleburg Heights.
BEFORE: E.A. Gallagher, J., Boyle, P.J., and Rocco, J.
JOURNAL ENTRY AND OPINION
EILEEN A. GALLAGHER, J.
(¶ 1} Eugene J. Gettings, III, appeals from the denial of his motion to suppress in the Berea Municipal Court. Gettings argues the trial court erred in determining that the arresting officer performed the field-sobriety tests in compliance with national guidelines and in finding that the officer had probable cause to stop and arrest him for operating a vehicle while intoxicated. For the following reasons, we affirm in part, reverse in part and remand for proceedings consistent with this opinion.
(¶2} In the early morning hours of December 24, 2011, Middleburg Heights police officer Dennis Santiago observed a silver Chevy Traverse weaving as it traveled westbound on Bagley Road. Santiago testified that he saw the vehicle weaving to the left, drive on top of lane lines and even cross halfway into the center lane of Bagley Road. Santiago stopped the vehicle in the parking lot of Perkins restaurant and the driver was identified as Eugene J. Gettings, III.
(¶3} Gettings initially related to Santiago that he did not know why he was stopped but after hearing why, Gettings stated that he was "messing around" with his radio, which may have caused him to weave. Santiago testified that he asked Gettings for his license and insurance information and that it took Gettings an unusually long time to produce the documents. Additionally, when asked from where he was coming, Gettings provided the officer with three different stories. Santiago testified that he asked Gettings if he had been drinking, to which Gettings admitted that he consumed two beers and he further testified that Gettings' eyes were bloodshot, watery and glassy, his speech was slurred and slow and that he had a strong odor of alcohol emanating from his person.
(¶ 4} Santiago conducted a couple of "pre-exit" tests. While Gettings remained in the vehicle, Santiago performed a "condensed" Horizontal Gaze Nystagmus (HGN) test, the finger dexterity test, the number count and the alphabet recitation. He testified that he observed impairment in both eyes during the HGN test, observed clues of impairment on the finger dexterity test as well as in both the number count and alphabet recitation. In particular, when ordered to count down from 89 to 65, backwards, Gettings stopped at the number 80 and failed to respond at all when asked to recite from D to P in the alphabet.
(¶ 5} Santiago testified that he asked Gettings to exit the vehicle so that he could perform the three standardized field-sobriety tests as outlined by the National Highway Traffic Safety Administration (NHTSA). Santiago performed the "walk-and-turn test, " the "one-leg-stand, " and the HGN test and testified that Gettings failed all three. Santiago testified that he performed all field-sobriety tests in compliance with the NHTSA standards and that it was his belief that Gettings was under the influence of alcohol.
(¶ 6} The city and Gettings stipulated to the results of a breath alcohol test, which indicated a .177 breath alcohol content. Santiago cited Gettings for OVI, in violation of R.C. 4511.19(A)(1)(a), BAC (breath) .17 or higher, in violation of R.C. 4511.19(A)(1)(h), driving under suspension — failure to reinstate, in violation of R.C. 4510.21 and continuous lanes weaving in violation of R.C. 4511.33(A)(1). Gettings filed a motion to suppress, and the trial court conducted a hearing. In his motion, Gettings argued that Officer Santiago did not have probable cause to perform the field-sobriety tests, that there was no probable cause to arrest for OVI and that Santiago did not perform the field-sobriety tests in compliance with NHTSA. The trial court overruled Gettings' motion finding that Officer Santiago had reasonable suspicion to conduct field-sobriety tests and that he conducted them in substantial compliance with NHTSA standards and that the officer had probable cause to arrest for OVI.
(¶ 7} Gettings pleaded no contest to operating a vehicle while intoxicated and was found guilty. Pursuant to an agreement with the city, all remaining charges were dismissed. The trial court sentenced Gettings to ten days in jail, imposed a fine of $750 and a 730-day license suspension, ordered Gettings to pay court costs and placed him on two years of probation with multiple conditions. Gettings' motion to stay execution of his sentence was granted. Gettings appeals, raising the following two assigned errors:
Assignment of Error I
The Trial Court erred in finding that the Standardized Field-sobriety tests were conducted in substantial compliance with NHTSA Guidelines.
Assignment of Error II
The Trial Court erred in finding probable cause for Appellant's OVI, stop and arrest.
(¶ 8} In his first assigned error, Gettings argues that the trial court erred when it found that Santiago substantially complied with the NHTSA standards. We agree.
Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the ...