Court of Appeals of Ohio, First District, Hamilton
Criminal Appeals From: Hamilton County Municipal Court TRIAL
NOS. 17TRC-4320A 17TRC-4320B
Boggs Muething, City Solicitor, Natalia Harris, City
Prosecutor, and Christopher Liu, Appellate Director, for
Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein,
The state of Ohio appeals the order of the trial court
granting a motion to suppress for lack of probable cause to
arrest Shane Thorton for operating a motor vehicle while
under the influence ("OVI"). Because the trial
court erred in concluding that there was no probable cause
for the arrest, we reverse.
While on patrol at about 3:00 a.m., Cincinnati Police
Sergeant Michael Reynolds saw a car approaching him with its
high beams on. He made a U-turn and began to follow the car.
Then the driver of the car made a right-hand turn, and, in
doing so, crossed two lanes of traffic and drove left of
Sergeant Reynolds stopped the car, which was driven by Shane
Thorton. An upright plastic cup was in the console. The
sergeant asked Thorton how much he had had to drink that
night, and Thorton at first denied drinking. When the
sergeant asked for insurance information, Thorton tried
several times to open the locked glove compartment with the
Cincinnati Police Officer Raymond Marsh arrived on the scene
to assist the sergeant. Officer Marsh approached the
driver's window and asked if Thorton had had anything to
drink because he seemed "a little lethargic."
Officer Marsh testified that he used the term
"lethargic" to mean that Thorton seemed confused
and disoriented. He testified that Thorton "was kind of
slow to respond, multiple times he asked me why he had been
stopped, when he had already been informed by Sergeant."
Thorton ultimately admitted to having had a drink earlier in
the evening. Officer Marsh noted that Thorton's eyes were
watery, bloodshot, and glassy, and that his speech was
slurred and slow. The officer asked Thorton to get out of the
car. When he spoke to Thorton face-to-face, he noted an odor
Officer Marsh had Thorton perform three field-sobriety tests.
The officer observed multiple clues of impairment on each
test. The officer observed four of six clues of impairment on
the horizontal-gaze-nystagmus ("HGN") test. On the
walk-and-turn test, the officer saw two of eight clues of
impairment, which were Thorton's failing to walk heel to
toe and stepping off the line. On the one-leg-stand test, the
officer noted two of four clues of impairment, including
swaying while balancing and putting a foot down during the
After administering the tests, Officer Marsh again asked
Thorton how much he had to drink, and this time Thorton
motioned to the plastic cup in his car and said that there
was gin in the cup. The officer placed Thorton under arrest.
The trial court admitted into evidence video recordings from
the body cameras worn by both police officers and a video
recording from a police cruiser. The court also took judicial
notice of the National Highway Transportation Safety
Administration ("NHTSA") manual regarding
The Trial ...