from the Franklin County Municipal Court M.C. No.
brief: Richard C. Pfeiffer, Jr., City Attorney, Lara N.
Baker, City Prosecutor, and Melanie R. Tobias, for appellant.
Argued: Melanie R. Tobias.
brief: Jack Moser Law Co., LP A, and Jack L. Moser, Jr., for
appellee. Argued: Jack L. Moser, Jr.
1} The State of Ohio is appealing from the granting
of a motion to suppress. It assigns a single error for our
The trial court erred in suppressing the Defendant's
breath-alcohol test results because the officer had probable
cause to arrest Defendant for operating a vehicle while under
the influence of alcohol.
2} The State amplifies its view with its statement
of the issue presented for review:
When an individual is stopped in the early morning hours for
speeding, emits a moderate odor of alcohol, displays
bloodshot, glassy eyes, admits to consuming alcohol and fails
three standardized field sobriety tests does the officer have
probable cause to arrest the individual for operating a
vehicle while under the influence of alcohol?
3} In the early morning hours of December 6, 2015,
Cody D. Bracken was clocked at a speed of 61 m.p.h. in a
posted 45 m.p.h. zone and pulled over by Sergeant Jermaine
Thaxton ("Sgt. Thaxton") of the Ohio State Highway
4} Sgt. Thaxton then approached Bracken's
vehicle. Sgt. Thaxton felt that he noticed a moderate odor of
alcohol coming from the vehicle. He viewed Bracken's eyes
as being bloodshot and glassy. Sgt. Thaxton felt
Bracken's face was flushed. Sgt. Thaxton acknowledged
that he did not shine a light on Bracken's face to enable
or increase his ability to make such observations.
5} Bracken acknowledged that he had consumed two
beers. Sgt. Thaxton had Bracken perform some field sobriety
tests, the first of which was the horizontal gaze nystagmus
test ("HGN"). Bracken was viewed as displaying six
clues which indicated alcohol consumption. Sgt. Thaxton felt
that Bracken had an odor of alcohol on his breath, but no
more than a moderate odor. The video of the encounter does
not enable us to evaluate how the HGN test was conducted or
6} The next test administered by Sgt. Thaxton was
the walk-and-turn test. Sgt. Thaxton later testified that
Bracken displayed five of the eight possible clues indicating
alcohol consumption to an unacceptable level. Sgt. Thaxton
viewed starting the walk-and-turn test before being told to
start walking as an indication of being impaired.
7} Another test administered was a test in which
Bracken was requested to recite a portion of the alphabet.
Bracken allegedly skipped a letter.
8} The final test administered was a one-leg stand
test. Sgt. Thaxton later testified that Bracken displayed
three of four possible clues indicating an illegal blood
alcohol level. The video of the interaction between Sgt.