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State v. Aicher

Court of Appeals of Ohio, Second District, Montgomery

May 11, 2018

STATE OF OHIO Plaintiff-Appellee
v.
JOHN F. AICHER Defendant-Appellant

          Criminal Appeal from Municipal Court Trial Court Case Nos. 2016-TRC-6617 and 2016-CRB-1842

          NOLAN C. THOMAS, Atty. Reg. No. 0078255, City of Kettering Prosecuting Attorney, Attorney for Plaintiff-Appellee

          BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, Attorney for Defendant-Appellant

          OPINION

          WELBAUM, P.J.

          {¶ 1} Defendant-appellant, John F. Aicher, appeals from the decision of the Kettering Municipal Court overruling his motion to suppress evidence flowing from field sobriety tests and a breath sample taken following a traffic stop for expired license plates. In support of his appeal, Aicher contends that the officer on duty lacked a reasonable, articulable suspicion that he was driving under the influence of alcohol to justify performing field sobriety tests. Aicher also contends that the breath sample he provided was not tested in compliance with the Ohio Department of Health's regulations and therefore should not have been deemed admissible for trial. For the following reasons, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} On August 6, 2016, Aicher was arrested and charged with two counts of operating a vehicle while under the influence of alcohol ("OVI") in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d). Aicher was also charged with improper display of license plates in violation of Kettering Local Ordinance 436.09, possession of drug paraphernalia in violation of R.C. 2925.14, and possession of an open container in violation of R.C. 4301.62. The charges arose after Aicher was pulled over by Officer Bradley Lambert of the Kettering Police Department for driving with expired license plates. The traffic stop expanded into an OVI investigation after Lambert made certain observations that led him to believe Aicher was driving under the influence of alcohol. After conducting various field sobriety tests, Lambert arrested Aicher for driving under the influence and conducted an inventory search of Aicher's vehicle. During the inventory search, Lambert discovered an open container of alcohol and drug paraphernalia. Aicher later submitted to an alcohol breath test that confirmed he had been operating his vehicle while over the legal limit.

         {¶ 3} Following his arrest, Aicher pled not guilty to all the charges. Thereafter, Aicher filed a motion to suppress the evidence flowing from the field sobriety tests and his breath sample. In support of his motion, Aicher argued that he was unlawfully detained during the field sobriety tests because Officer Lambert did not have a reasonable, articulable suspicion to believe that he was driving under the influence of alcohol. Aicher also argued that his breath sample was inadmissible because it was not tested in compliance with the Ohio Department of Health's regulations.

         {¶ 4} On December 14, 2016, the trial court held a hearing on Aicher's motion to suppress. At the hearing, Officer Lambert testified that he has been a Kettering police officer for over 15 years and that he has made over 300 OVI arrests during his tenure as an officer. Lambert also indicated that he received alcohol detection training based on National Highway Traffic Safety Administration ("NHTSA") standards while he was at the Ohio State Basic Peace Officer Training Academy. Lambert further testified that he has since received regular updates on his training by attending drug and alcohol recognition courses through Advanced Roadside Impaired Driving Enforcement ("ARIDE") and Alcohol Detection and Prosecution ("ADAP").

         {¶ 5} Regarding the incident in question, Officer Lambert testified that at 1:05 a.m. on August 6, 2016, he observed a gray Volkswagen with expired license plates driving near the intersection of Wilmington Pike and Ansel Drive in Kettering, Ohio. Lambert testified that he conducted a traffic stop based on the expired plates and made contact with the driver, later identified as Aicher. Upon approaching Aicher and speaking with him, Lambert testified that he smelled "a moderate odor of an alcohol beverage upon [Aicher's] breath as he would speak." Suppression Hearing Trans. (Dec. 14, 2016), p. 53. Lambert also testified that he detected a faint odor of burnt marijuana and noticed that Aicher's eyes were glassy and that some of his words "would become a little bit slurred at times." Id. Lambert further testified that Aicher informed him that he was coming from the Oregon District, which he explained is a bar district in downtown Dayton. Lambert also testified that Aicher admitted to having "a couple" alcoholic beverages to drink that night. Id. at p. 54.

         {¶ 6} Based on these observations, Officer Lambert expanded the scope of the traffic stop to perform field sobriety testing. According to Lambert, Aicher's performance on the field sobriety tests confirmed his belief that Aicher was driving under the influence of alcohol. As a result, Lambert testified that he arrested Aicher at 1:22 a.m. Following Aicher's arrest, Lambert testified that he and the other officer on duty, Officer Spinks, performed an inventory search of Aicher's vehicle, which yielded an open flask containing a small amount of whiskey and a "one hitter pipe that contained marijuana residue.

         {¶ 7} Continuing, Officer Lambert testified that Aicher was transported to jail by Officer Spinks and that Lambert made contact with Aicher at the jail approximately 20 minutes later. Lambert testified that Aicher was placed in a holding cell and was monitored by jailer Peter Morris prior to his arrival. Lambert testified that when he made contact with Aicher in jail, Aicher agreed to take a breath test, which Lambert performed at 2:07 a.m.

         {¶ 8} With regard to the breath test, Officer Lambert testified that he was certified by the Ohio Department of Health to perform breath tests using an Intoxilyzer 8000. Lambert testified that the Intoxilyzer 8000 used to test Aicher was in proper working condition at the time he conducted the test. Specifically, Lambert testified that the Intoxilyzer 8000 conducts internal checks and that it would not have performed the breath test on Aicher had it not been working properly. Lambert testified that the results of the breath test showed that Aicher's breath alcohol content was 0.16 grams of alcohol per 210 liters of breath, an amount that is twice the legal limit.

         {¶ 9} In addition to Officer Lambert's testimony, the State presented testimony from Ohio Department of Health inspector Robert Norbeck. Norbeck testified that on September 9, 2015, he certified the Intoxilyzer 8000 that was used to test Aicher's breath sample. Norbeck thereafter explained the certification process in detail and further testified that all of the tests he performed on the Intoxilyzer 8000 indicated that the instrument was in proper working condition and was in compliance with the Ohio Department of Health's regulations. Norbeck also confirmed that the Intoxilyzer 8000 was working properly on the day of Aicher's breath test. Norbeck also identified various documents and test reports confirming his testimony that the instrument was properly certified and in working order.

         {¶ 10} Following the suppression hearing, the trial court issued a written decision overruling Aicher's motion to suppress. In so holding, the trial court found that the State provided sufficient evidence that the Intoxilyzer 8000 at issue met all of the Ohio Department of Health's regulations to provide an admissible breath sample. The trial court further found that Lambert's observations of Aicher during the traffic stop provided Lambert with a reasonable, articulable suspicion that Aicher was driving under the influence of alcohol to justify performing field sobriety tests.

         {¶ 11} After his motion to suppress was overruled, Aicher entered a no contest plea to all the charges against him. The trial court then accepted Aicher's plea and found him guilty as charged. At sentencing, the trial court merged the two OVI offenses and sentenced Aicher to 180 days in jail with 176 days suspended. The trial court also imposed a $1, 000 fine with $600 suspended, suspended his driver's license for 90 days, and placed him on two years of probation. The trial court further ordered Aicher to pay a $10 fine for improper display of license plates, a $25 fine for possessing an open container, and a $25 fine for possessing drug paraphernalia.

         {¶ 12} Aicher now appeals from the trial court's decision overruling his motion to suppress, raising two assignments of error for review.

         Standard of Review

         {¶ 13} "In ruling on a motion to suppress, the trial court 'assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.' " State v. Prater, 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7 (2d Dist.), quoting State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). "As a result, when we review suppression decisions, 'we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard.' " Id., quoting Retherford.

          First Assignment of Error

         {¶ 14} Aicher's First Assignment of Error is as follows:

THE TRIAL COURT ERRED IN FINDING THAT A REASONABLE ARTICULABLE SUSPICION OF IMPAIRED DRIVING EXISTED FOR THE IMPOSITION OF FIELD SOBRIETY TESTING.

         {¶ 15} Under his First Assignment of Error, Aicher contends that in overruling his motion to suppress the trial court erroneously concluded that Officer Lambert had a reasonable, articulable suspicion that he was driving under the influence of alcohol to justify prolonging the traffic stop for field sobriety testing. Accordingly, Aicher maintains that he was unlawfully detained by Lambert in violation of his Fourth Amendment rights.

         {¶ 16} "The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee the right to be free from unreasonable searches and seizures." (Citation omitted.) State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7. "Stopping an automobile is reasonable if an officer has probable cause to believe that a traffic violation has occurred." State v. Brown, 2d Dist. Greene No. 2011 CA 52, 2012-Ohio-3099, ¶ 13, citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, "[a]n officer cannot continue to detain a suspect past the time necessary for investigating and completing the initial traffic stop merely to conduct a 'fishing expedition' for other criminal activity." Id., quoting State v. Jones, 2d Dist. Montgomery No. 23920, 2010-Ohio-5522, ¶ 16. To justify further detention for the administration of field sobriety tests, "the officer must have a reasonable, articulable suspicion that a person is driving under the influence[.]" Id., citing State v. Santiago, 195 Ohio App.3d 649, 2011-Ohio-5292, 961 N.E.2d 264, ¶ 11 (2d Dist.).

         {¶ 17} "Whether an officer had a reasonable, articulable suspicion to administer field sobriety tests is a 'very fact-intensive' determination." Santiago at ¶ 13, quoting State v. Wells, 2d Dist. Montgomery No. 20798, 2005-Ohio-5008, ¶ 9. In determining whether there was a reasonable, articulable suspicion, the court must evaluate the totality of the circumstances. (Citation omitted.) State v. Gladman, 2d Dist. Clark No. 2013 CA 99, 2014-Ohio-2554, ¶ 14. These circumstances must be considered " 'through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.' " Id., quoting State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ΒΆ 14. If there are no articulable facts that give rise to a suspicion of illegal activity, then the continued ...


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