Appeal from Paulding County Court Trial Court No. 12-TRC-291 A-B
Peter R. Seibel for Appellant
Joseph R. Burkard and Matthew A. Miller for Appellee
(¶1} Defendant-appellant, Kimberly Jo Shaffer ("Shaffer"), appeals the December 17, 2012, judgment of the Paulding County Court finding her guilty of reckless operation, in violation of R.C. 4511.20(B), a misdemeanor of the third degree, and failure to drive within the marked lanes, in violation of R.C. 4511.33(A)(1), a minor misdemeanor, following a plea of no contest to both offenses. The trial court imposed a three-day jail sentence and a fine of $375 for the reckless operation conviction and a fine of $50 for her failure to drive within the marked lanes.
(¶2} On March 10, 2012, at approximately 3:00 a.m., Trooper Joe Sisco was traveling behind Shaffer on State Route 66 in Paulding County when he observed the right side tires of Shaffer's vehicle drive onto the white line marker one time for about three seconds. Trooper Sisco proceeded to stop Shaffer for failure to drive within the marked lines, also referred to as a "marked lanes violation."
(¶3} Upon speaking with Shaffer, Trooper Sisco smelled a strong odor of alcoholic beverage emitting from the vehicle. He also observed Shaffer's eyes were red and glassy and that her speech was slurred. Shaffer initially denied consuming any alcoholic beverage, but later admitted to consuming alcohol around 3:00 p.m. earlier that afternoon.
(¶4} Trooper Sisco asked Shaffer to perform a series of field sobriety tests and Shaffer completed the Horizontal Gaze Nystagmus ("HGN"). Trooper Sisco reported observing six out of six clues indicating impairment. Shaffer declined to perform any subsequent field sobriety tests. Trooper Sisco also asked Shaffer to submit to a portable breath test, which she refused.
(¶5} Trooper Sisco placed Shaffer under arrest and charged her with operating a vehicle while under the influence or "OVI, " in violation of R.C. 4511.19(A)(2). Trooper Sisco also cited Shaffer for failure to drive within the marked lines, in violation of R.C. 4511.33(A)(1). In a written report filed with the citation, Trooper Sisco stated that he "observed the vehicles [sic] right side tires cross over the white lane marker line. After observing the violation, [he] activated the overhead emergency lights to conduct a traffic stop." (Doc. No. 1).
(¶6} Shaffer appeared in open court and entered pleas of not guilty. On May 9, 2012, Shaffer filed a motion to suppress all evidence against her on the ground that Trooper Sisco lacked probable cause and/or reasonable articulable suspicion justifying the stop of her vehicle. Specifically, Shaffer argued that she did not commit a marked lanes violation, which was the sole reason Trooper Sisco initiated the stop.
(¶7} On May 31, 2012, the trial court held a suppression hearing on the matter. Trooper Sisco was the only witness to testify and provided the following testimony.
Prosecutor: And Trooper Sisco what was the reason for your interaction with Miss Shaffer on that night?
Trooper Sisco: Ah, I was traveling southbound on State Route 66 near mile post 12 in Paulding County, um she was traveling southbound in front of me, while behind the vehicle I noticed that the right side tires drove across the white lane marker and I stopped her for that violation.
Prosecutor: Ok, what exactly is the violation you're referring to?
Trooper Sisco: Ah, it would be a marked lanes violation.
Prosecutor: Ok, and that's because she bumped ...