Criminal Appeal from the Painesville Municipal Court, Case No. 11TRC6437.
Edward C. Powers, Painesville City Prosecutor, (For Plaintiff-Appellee).
Michael J. Lerner, Denman & Lerner Co., L.P.A., (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
(1} Appellant, Leonard R. Norwood, Jr., appeals the judgment of the Painesville Municipal Court, overruling his motion to suppress. Appellant was subsequently tried by the court and convicted of operating a motor vehicle under the influence of alcohol ("OVI"). At issue is whether the police had reasonable suspicion that appellant was driving under the influence, thus justifying their investigative stop. For the reasons that follow, we affirm.
(¶2} On December 24, 2011, appellant was issued a citation by the Painesville Police Department for OVI, a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1)(a). He was also cited for OVI, having previously been convicted of R.C. 4511.19 within the past 20 years and having refused to submit to a chemical test, a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(2). Appellant pled not guilty.
(¶3} Appellant filed a motion to suppress evidence, arguing there was no lawful cause to stop and detain him. The court held a hearing on the motion.
(¶4} Painesville Police Officer William Smith testified that on December 24, 2011, at around 2:00 a.m., an employee from Taco Bell in Painesville called the Painesville Police Department and reported that there was a customer currently at the drive-thru window in a large green truck, "who was so intoxicated he couldn't speak."
(¶5} Officer Smith testified that he and Officer Jason Hughes arrived at the scene three minutes later. They arrived at the same time, but each was driving his own cruiser. Upon their arrival, a green SUV matching the description provided by the employee was at the drive-thru window and the driver, later identified as appellant, was talking to an employee at the window.
(¶6} Officer Smith testified that he and Officer Hughes parked their cruisers in the parking lot. Officer Smith walked over to the SUV alone. He approached the passenger side of the SUV and knocked on it to get appellant's attention. Officer Smith said he was attempting to confirm the employee's report that appellant was intoxicated.
(¶7} Officer Smith said that appellant did not respond to him, but, instead, started to drive away. Appellant made a right-hand turn and entered the parking lot driving directly toward Officer Hughes' cruiser. Officer Smith said that appellant drove so close to Officer Hughes' cruiser that his SUV came within two inches of it and it appeared that appellant was going to strike it. At that time, Officer Hughes was standing just outside his cruiser.
(¶8} Officer Smith testified he started pounding on appellant's SUV and yelling for him to stop. Appellant refused to comply with the officer's commands and kept driving. After nearly striking Officer Hughes' cruiser, appellant stopped his SUV 10 to 15 feet past Officer Hughes' cruiser. Thus, appellant is incorrect when he represents in his statement of facts that he stopped his SUV "beside Officer Hughes' patrol unit."
(¶9} Officer Hughes then asked appellant to exit his SUV. As appellant stepped out, he had a hard time standing on his own. Officer Hughes asked him to identify himself, but his speech was so slurred, it took appellant two minutes to respond clearly enough for the officers to understand him. Appellant had difficulty keeping his balance and had to lean against his SUV to hold himself up. The officers smelled a strong odor of alcohol coming from appellant. Officer Smith asked appellant about the police cruiser he almost hit, and appellant denied ever seeing it. Appellant was then arrested for driving under the influence.
(¶10} Appellant did not testify or present any evidence disputing Officer Smith's testimony. Thus, the state's evidence at the suppression hearing was undisputed. Following the hearing, the trial ...