Court of Appeals of Ohio, Fifth District, Licking
from the Licking County Municipal Court, Case No.
Plaintiff-Appellee BRIAN M. ZETS DAVID C. MOSER Isaac Wiles
Burkholder & Teetor, LLC
Defendant-Appellant JESSICA G. D'VARGA JON J. SAIA
Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon.
Earle E. Wise, Jr., J.
Defendant-appellant Thomas Pizzuto appeals the judgment
entered by the Licking County Municipal Court convicting him
of operating a vehicle with a prohibited alcohol
concentration in his breath (R.C. 4511.19(A)(1)(d)). Appellee
is the state of Ohio.
OF THE FACTS AND CASE
During the late night and early morning hours of November 5
and 6, 2016, Trooper Justin Hurlbert of the Ohio State
Highway Patrol was on routine patrol in Pataskala, Ohio. As
he approached the intersection of Main Street and Taylor
Road, he saw a car operated by Appellant travel southbound on
Taylor and make a left turn eastbound onto Main Street on a
Appellant turned into the parking lot of a Circle K gas
station. Trp. Hurlbert followed Appellant into the parking
lot. Upon making contact with Appellant, Trp. Hurlbert
noticed Appellant had difficulty grasping his license, and
fumbled with his other documents. He detected a strong odor
of alcohol about Appellant and observed Appellant's eyes
were bloodshot and glassy. The trooper also found
Appellant's responses to questions were "a little
As a result of his interaction with Appellant, the trooper
asked him to move to the front passenger seat of the police
cruiser. Once inside the cruiser, the trooper determined the
odor of alcohol came from Appellant's breath, and
Appellant admitted drinking two beers before the Ohio State
game earlier in the evening. The trooper administered the
horizontal gaze nystagmus test and observed six out of six
clues. Appellant missed touching his fingertips on the finger
dexterity test, but correctly recited the alphabet from D to
N, and was able to count backwards from 52 to 38.
Trp. Hurlbert asked Appellant to exit the cruiser, where he
administered the one-legged stand test. Hurlbert observed all
four possible clues of impairment on this test. He then asked
Appellant to perform the walk-and-turn test, on which he
observed five out of eight possible clues of impairment.
Appellant was transported to the Reynoldsburg Police
Department where the Ohio State Highway Patrol maintains a
DataMaster breath alcohol testing machine. Appellant agreed
to the breath test; however, in order to get a ticket to
print which the trooper could then fill out with the results
of the test, he marked the "refused" box on the
ticket. He explained to Appellant why he had to mark
"refused" even though Appellant consented to the
test. The ticket included printed charges of operating a
vehicle while impaired in violation of R.C. 4511.19(A)(1)(a)
and a traffic light violation in R.C. 4511.13.
Appellant's result on the breath alcohol test was
.131g/210 liters of breath, which was over the legal limit of
.080. Trp. Hurlbert handwrote the result of .131 on the
ticket, as well as a charged violation of R.C.
4511.19(A)(1)(d), and handed the ticket to Appellant.
On November 7, 2016, the State filed the ticket with the
Licking County Municipal Court. The ticket as filed was
entirely computer generated and did not include the
Trooper's handwritten notations; however, the only change
to the content of the ticket was the "refused" box
was no longer checked.
Appellant filed a motion to suppress the results of the BAC
test, arguing in pertinent part there was no reasonable
probability of criminal activity to justify the stop, and the
DataMaster machine was not maintained and calibrated in
substantial compliance with Ohio Department of Health
regulations. The suppression motion was overruled and the
case proceeded to jury trial.
At trial, Trp. Hurlbert was the only witness who testified.
Appellant moved to dismiss the charges for want of
jurisdiction because the Trooper did not serve the complaint
filed with the court on Appellant as required by Traf. R.
3(E). The court overruled the motion. The State dismissed the
charges of driving while impaired in violation of R.C.
4511.19(A)(1)(a) and violating a traffic signal in violation
of R.C. 4511.13. Appellant was found guilty by the jury and
convicted of the violation of R.C. 4511.19(A)(1)(d). He was
sentenced to 30 days incarceration with 27 days suspended. He
was placed under the supervision of the Licking County
Municipal Court Probation Department, and would receive
credit for the remaining three days of jail time upon
successful completion of the Driver Intervention ...