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State v. Ruberg

Court of Appeals of Ohio, First District

September 25, 2013

STATE OF OHIO, Plaintiff-Appellant,
v.
ASHLEY RUBERG, Defendant-Appellee.

Hamilton County Municipal Court TRIAL NO. 11TRC-36309

John Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Jacqueline Pham, Assistant City Prosecutor, for Plaintiff-Appellant,

The Law Office of Steven R. Adams, Steven R. Adams and Marguerite Slagle, for Defendant-Appellee. Please note: this case has been removed from the accelerated calendar.

OPINION

Hildebrandt, Presiding Judge.

(¶1} Plaintiff-appellant state of Ohio appeals the judgment of the Hamilton County Municipal Court granting a motion to suppress in a prosecution for operating a vehicle with a prohibited breath-alcohol concentration and driving while impaired.

The Stop and the Field-Sobriety Tests

(¶2} Early one morning, at approximately 1:30 a.m., Ohio State Trooper Joel Westhoven clocked defendant-appellee Ashley Ruberg driving 72 m.p.h. in a 45 m.p.h. zone. Westhoven stopped Ruberg's car and informed her that she was speeding. Ruberg produced her license without difficulty. Although her speech was clear and coherent, Westhoven testified that her eyes were "a little red" and that there was a smell of alcohol coming from the car and her person. Accordingly, he decided to administer field-sobriety tests.

(¶3} Ruberg exited from her car without hesitating or stumbling. She was cooperative and told Westhoven that she had consumed a drink at around 4:00 p.m.

(¶4} Westhoven first administered the horizontal-gaze-nystagmus (HGN) test. He testified that Ruberg had exhibited six "clues" of impairment, but he conceded that he had improperly administered the test because he had failed to turn Ruberg completely away from traffic and from his cruiser's overhead lights.

(¶5} Next, Westhoven administered the walk-and-turn test. He testified that Ruberg had exhibited one clue of impairment because she had not placed the heel of her foot directly on the toe of the other foot. On cross-examination, though, Westhoven admitted that guidelines for the test allow for one-half inch between steps. Westhoven could not recall the amount of space between Ruberg's steps that had led him to conclude that she had not performed the test successfully. But he did note that Ruberg had exhibited a second clue when she had stepped off of the line twice during the test.

(¶6} Finally, Westhoven administered the one-leg-stand test. He stated that Ruberg had performed that test successfully.

(¶7} Westhoven placed Ruberg under arrest. A breathalyzer test revealed that Ruberg had a concentration of .116 grams of alcohol per 210 liters of her breath.

The Motion to Suppress

(ΒΆ8} Ruberg filed a motion to suppress, contending, among other things, that Westhoven had not possessed probable cause to arrest her. The trial court ...


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