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State v. Such

Court of Appeals of Ohio, Fifth District, Licking

March 30, 2018

STATE OF OHIO Plaintiff-Appellee
v.
ADAM SUCH Defendant-Appellant

          Appeal from the Licking County Municipal Court, Case No. 17-TRC-02590

          For Plaintiff-Appellee: J. MICHAEL KING Assistant Law Director

          For Defendant-Appellant: KEVIN J. GALL Burkett & Sanderson, Inc.

          Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. William B. Hoffman, J.

          OPINION

          DELANEY, JUDGE

         {¶1} Appellant Adam Such appeals from the September 5, 2017 Judgment Entry of Conviction of the Licking County Municipal Court, incorporating the June 27, 2017 Judgment Entry overruling his motion to suppress. Appellee is the state of Ohio.

         {¶2} Two appeals, Licking County case numbers 17-CA-77 and 17-CA-78, are hereby consolidated and resolved with the single opinion infra.

         FACTS AND PROCEDURAL HISTORY

         {¶3} This case arose on March 11, 2017, around 4:00 p.m., when Trooper Vogelmeier of the Ohio State Highway Patrol was monitoring traffic from a stationary location on Interstate 70 near mile post 132 in Licking County. Vogelmeier has been a trooper for 5 years and is trained and certified in the investigation of impaired drivers using standardized field sobriety tests pursuant to the National Highway Traffic Administration (NHTSA) Standards and Advanced Roadside Impaired Driving Enforcement (ARIDE). Vogelmeier is experienced in recognizing and apprehending drivers under the influence of alcohol and other drugs.

         {¶4} On this date, Vogelmeier watched traffic moving westbound and checked speed with a laser device. He observed a vehicle operated by appellant in the right lane. The trooper watched the vehicle leave its lane by a "substantial distance;" in addition, the vehicle traveled 52 m.p.h. in a 70 m.p.h. zone and the passenger was not wearing a seat belt.

         {¶5} Vogelmeier initiated a traffic stop and noted appellant was slow to pull over. The cruiser camera was activated along with the lights on the cruiser and the videotape of the stop was admitted as appellee's Exhibit 1 at the suppression hearing. The video therefore does not capture the marked-lanes violation initially observed by Vogelmeier but does show appellant slowly moving within his lane at a slow speed and, after a delay, coming to a stop at a rest area.

         {¶6} Vogelmeier approached the vehicle and asked appellant for his license and insurance. He noted a "very slight odor" of raw marijuana emanating from inside the vehicle. The eyes of both appellant and his passenger were very red and appellant's speech was slow and lethargic. Vogelmeier told appellant why he was stopped and appellant said he swerved "to avoid an oversize load, " but Vogelmeier did not see an oversize load traveling west.

         {¶7} Vogelmeier asked appellant to exit the vehicle based upon the totality of the circumstances: the marked-lanes violation, the slow speed, the fact that appellant was slow to stop and weaved within his lane, the red eyes, and the odor of marijuana. Vogelmeier placed appellant in the rear of the cruiser and he sat in the front, writing a seat belt ticket for the passenger.

         {¶8} Vogelmeier testified that as he sat in the cruiser with appellant, he weighed whether he would ask appellant to submit to standardized field sobriety tests and/or search the vehicle. The latter would require him to request another unit to the scene and he considered doing so. He testified appellant was not behaving normally. As he spoke to appellant, he noticed his eyes were extremely bloodshot. At first, appellant's tone was "excited" but as the conversation went on, appellant became unusually lethargic, to the point that he seemed to be falling asleep in the back ...


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