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State v. Betts

Court of Appeals of Ohio, Fifth District, Stark

May 15, 2017

STATE OF OHIO Plaintiff-Appellee
v.
CLIFFORD BETTS Defendant-Appellant

         Criminal Appeal from the Canton Municipal Court, Case No. 2016 TRC 04548

          For Plaintiff-Appellee JOSEPH MARTUCCIO CANTON LAW DIRECTOR TYRONE D. HAURITZ CANTON CITY PROSECUTOR

          For Defendant-Appellant RICHARD DRAKE

          JUDGES: Hon. Patricia A. Delaney, P. J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          Wise, John, J.

         {¶1} Appellant Clifford Betts appeals his OVI conviction entered in the Canton Municipal Court, Stark County, following a jury trial.

         {¶2} Appellee is the State of Ohio.

         STATEMENT OF THE FACTS

         {¶3} The relevant facts leading to this appeal are as follows:

         {¶4} On June 20, 2016, at approximately 2:23 a.m., Trooper Carlos Castellanos, of the Ohio State Highway Patrol, noticed a silver BMW driving near 12th Street in the City of Canton. (T. at 72-73). Trooper Castellanos noticed the vehicle because the high beams were activated, and it did not have a front license plate. (T.at 73). The trooper initiated a traffic stop and made contact with the driver, Appellant Clifford Betts. (T. at 73).

         {¶5} Trooper Castellanos approached the vehicle and spoke to the driver. While speaking to Appellant, he could smell the odor of consumed alcohol emitting from the vehicle. (T. at 73). The trooper asked Appellant for his license and registration. (T. at 74). Appellant stated that he did not have his license with him because he left his wallet at home. Id. Trooper Castellanos observed that when Appellant attempted to retrieve his registration from the glove box, he fumbled with his keys and was unable to hold onto them. Id. Based on these observations, the trooper asked Appellant to step outside of the vehicle to perform standardized field sobriety tests. Id.

         {¶6} Once Appellant was outside of the vehicle, Trooper Castellanos could still smell the odor of consumed alcohol emitting from Appellant's person. Id. He described the odor as a "moderate level of alcohol." (T. at 75). In addition to the odor of alcohol, the trooper observed Appellant's eyes to be red and watery. Id.

         {¶7} Trooper Castellanos positioned Appellant on the driver's side front right tire of his cruiser and turned off the front emergency lights in order to administer the first field sobriety test, the Horizontal Gaze Nystagmus (HGN) test. (T. at 75-76). The trooper first checked for lack of smooth pursuit. (T. at 79). The trooper explained lack of smooth pursuit - if you were to have a piece of glass and you have a marble on your glass, a person that's not been drinking or intoxicated, if I were to roll that marble across the glass it would roll smoothly. If you have an individual that's impaired or drinking, basically you're going to take that marble and put it on a piece of sandpaper ... That marble is going to be jerking across that sandpaper. Id. During this test, the trooper observed lack of smooth pursuit in both eyes of Appellant for a total of two clues. (T. at 80).

         {¶8} Next, the trooper checked for nystagmus at maximum deviation. Id. During this test, the trooper brings the stimulus out to forty-five degrees, where a person is looking out of the corner of their eyes. Id. "An individual that hasn't been drinking or not impaired, you're going to ... look over there for a time. Your eye's not going to do anything or move. A person that's impaired, their eyes are going to involuntary jerk back and forth." (T. at 80-81). During this test, ...


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