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State v. Yost

Court of Appeals of Ohio, Third District, Seneca

July 23, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JAY C. YOST, DEFENDANT-APPELLANT.

          Appeal from Tiffin-Fostoria Municipal Court Trial Court No. TRC 1700750

          Kurt A. Dauterman for Appellant

          Charles R. Hall, Jr. for Appellee

          OPINION

          SHAW, J.

         {¶1} Defendant-Appellant, Jay Yost, appeals the December 4, 2017 judgment of the Tiffin-Fostoria Municipal Court finding him guilty of OVI, after he entered a plea of no contest, and sentencing him to ninety days in jail, all suspended upon his compliance with the terms and conditions of a one-year period of probation. On appeal, Yost claims that the trial court erred in overruling his motion to suppress.

         Relevant Facts and Procedural History

         {¶2} On March 4, 2017, Trooper Jason Fowler was travelling eastbound on U.S. 224 in Seneca County, at approximately 3:00 a.m., when he observed Yost's vehicle travel over the white fog line while driving westbound on the same road. Trooper Fowler determined that Yost had committed a marked lanes violation and conducted a traffic stop of Yost's vehicle.

         {¶3} Upon encountering Yost in his vehicle, Trooper Fowler noticed a strong odor of marijuana and a moderate odor of alcoholic beverage emitting from the vehicle. Trooper Fowler placed Yost in the front seat of his patrol cruiser, performed a search of Yost's vehicle, and found a cigarillo in the center console, but no other contraband or alcoholic beverage. He noticed that Yost had slow movement, and bloodshot, red, glossy eyes. He also observed raised taste buds and a green tint on the back of Yost's tongue. Trooper Fowler detected a strong odor of marijuana emitting from Yost's person while he was seated in the patrol cruiser.

         {¶4} Trooper Fowler performed the Horizontal Gaze Nystagmus ("HGN") field sobriety test on Yost, and observed six out of six possible clues indicating impairment. He also noticed that Vertical Gaze Nystagmus ("VGN") was present in each eye during testing. He had Yost complete a number of other field sobriety tests, which included the walk-and-turn, the one-leg stand, lack of convergence eye test, a recitation of the alphabet from letter C to X, and counting down from numbers 57 to 42, all of which Yost performed satisfactorily. Trooper Fowler made the determination to arrest Yost for driving a vehicle while impaired. Trooper Fowler offered Yost a breath test, which Yost refused. He transported Yost to the Tiffin Police Department and obtained a search warrant to draw Yost's blood.

         {¶5} On March 6, 2017, Trooper Fowler filed a complaint alleging that Yost committed the offense of OVI, in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree, and a marked lanes violation, in violation of R.C. 4511.33, a minor misdemeanor. Yost appeared, pro se, for arraignment on March 15, 2017, where he entered a plea of not guilty.

         {¶6} On April 27, 2017, the prosecution filed a motion to dismiss the OVI based upon the blood test results revealing that Yost was under the legal limit for driving under the influence of alcoholic beverage.

         {¶7} On May 26, 2017, the trial court held a hearing on the State's motion to dismiss, where Yost appeared pro se. The trial court overruled the motion, noting that the OVI charge could proceed because "there's lots of ways you can be impaired. All right. It's not just booze" and set the case for trial. (Doc. No. 58 at 3).

         {¶8} On June 15, 2017, Yost retained counsel who filed a notice of appearance, a motion for new trial date, and a request for leave to file a motion to suppress. The trial court granted a continuance and permitted Yost to file a motion to suppress.

         {¶9} On August 4, 2017, Yost filed a "Motion to Suppress/Limine," arguing that this arrest was unlawful on several grounds, and requesting that the trial court suppress the evidence obtained as result of the arrest. Specifically, Yost maintained, inter alia, that Trooper Fowler lacked reasonable, articulable suspicion to initiate the traffic stop, failed to perform the NHTSA standard field sobriety testing in substantial compliance pursuant to R.C. 4511.19(D)(4), and lacked probable cause to arrest him.

         {¶10} On September 26, 2017, the trial court held a hearing on Yost's motion to suppress. Trooper Fowler presented testimony for the prosecution and a video recording of the stop and arrest made from Trooper Fowler's cruiser camera was admitted as evidence at the hearing. At the close of the evidence, the trial court overruled the motion to suppress finding that Trooper Fowler had reasonable, articulable suspicion to make the traffic stop of Yost's vehicle based upon a marked lanes violation, that Trooper Fowler administered the HGN test in substantial compliance with the NHTSA standards, and that Trooper Fowler had probable cause to arrest Yost for OVI.

         {¶11} On December 4, 2017, Yost entered a plea of no contest to the charges and the trial court sentenced him to 90 days in jail, all suspended upon his compliance with the terms and conditions of his one-year period of probation. The trial court also imposed a $375.00 fine, plus court costs, with a one-year license suspension.

         {¶12} Yost filed this appeal, asserting the following assignments of error.

         ASSIGNMENT ...


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