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State v. Pizzuto

Court of Appeals of Ohio, Fifth District, Licking

January 8, 2018

STATE OF OHIO Plaintiff-Appellee
THOMAS PIZZUTO Defendant-Appellant

         Appeal from the Licking County Municipal Court, Case No. 16-TRC-11223

          For Plaintiff-Appellee BRIAN M. ZETS DAVID C. MOSER Isaac Wiles Burkholder & Teetor, LLC

          For Defendant-Appellant JESSICA G. D'VARGA JON J. SAIA

          Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.


          Hoffman, J.

         {¶1} 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.


         {¶2} 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 red light.

         {¶3} 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 off."

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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 ...

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