Appeal from the Canton Municipal Court, Case No. 2016 TRC
Plaintiff-Appellee JOSEPH MARTUCCIO CANTON LAW DIRECTOR
TYRONE D. HAURITZ CANTON CITY PROSECUTOR
Defendant-Appellant RICHARD DRAKE
JUDGES: Hon. Patricia A. Delaney, P. J. Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
Appellant Clifford Betts appeals his OVI conviction entered
in the Canton Municipal Court, Stark County, following a jury
Appellee is the State of Ohio.
OF THE FACTS
The relevant facts leading to this appeal are as follows:
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).
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
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.
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).
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,