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State v. Heimberger

Court of Appeals of Ohio, Third District, Marion

July 30, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DEBRA A. HEIMBERGER, DEFENDANT-APPELLANT.

          Appeal from Marion County Municipal Court Trial Court No. TRC 1703179

          Nathan Witkin for Appellant.

          Stephen E. Chaffin for Appellee.

          OPINION

          ZIMMERMAN, J.

         {¶1} Defendant-appellant, Debra Heimberger ("Heimberger"), appeals the October 17, 2017 judgment of the Marion County Municipal Court of her conviction of OVI, in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree.

         Facts and Procedural History

         {¶2} This appeal stems from the events that occurred on the morning of April 14, 2017, when Heimberger was cited for operating a vehicle while under the influence, or drug of abuse, in violation of R.C. 4511.19(A)(1)(a), and for failure to drive in marked lanes, in violation of R.C. 4511.33. Heimberger entered pleas of not guilty to both charges and the matter was set for trial.

         {¶3} Prior to trial, Heimberger filed a motion to suppress the evidence obtained as a result of the traffic stop. In her motion, Heimberger argued: that there was no lawful cause for the stop; that the field sobriety tests were not administered in substantial compliance with the standards of the National Highway Traffic Safety Administration; and that her statements were obtained in violation of her Fifth Amendment rights. Following an evidentiary hearing on the motion, the trial court denied the request concluding: that Trooper Overly "had probable cause to stop the Defendant; that the Walk and Turn Standardized Field Sobriety Test was administered in substantial compliance with the NHTSA standards; that the Defendant was not in custody pertaining to arrest but rather for safety purposes and as part of the investigation; and that there was probable cause to arrest the Defendant considering the totality of the circumstances". (Doc. 34).

         {¶4} The case proceeded to a jury trial in the trial court on October 11, 2017, whereupon a jury convicted Heimberger of operating a vehicle while under the influence of a drug of abuse. Contemporaneously, the trial court dismissed Heimberger's marked lanes violation charge.

         {¶5} On October 17, 2017, the trial court sentenced Heimberger to 30 days in jail, suspending 27 days. It is from this entry that Heimberger appeals, presenting the following assignments of error for our review.

         ASSIGNMENT OF ERROR NO. I

         THE TRIAL COURT IMPROPERLY EXCLUDED EXPERT TESTIMONY FROM DEFENDANT'S COUNSELOR.

         ASSIGNMENT OF ERROR NO. II

         THE TRIAL COURT IMPROPERLY EXCLUDED LAY WITNESS TESTIMONY FROM DEFENDANT'S COUNSELOR.

         ASSIGNMENT OF ERROR NO. III

         THE TRIAL COURT ERRED IN FINDING REASONABLE SUSPICION AT THE TIME THAT IS [SIC] THE TROOPER INITIATED THE TRAFFIC STOP.

         ASSIGNMENT OF ERROR NO. IV

         THE DEFENDANT-APPELLANT'S STATEMENTS REGARDING HER USE OF MEDICATIONS SHOULD HAVE BEEN SUPPRESSED AS HAVING BEEN GATHERED IN VIOLATION OF HER FIFTH AMENDMENT RIGHTS.

         ASSIGNMENT OF ERROR NO. V

         THE FINDING OF THE JURY THAT DEFENDANT-APPELLANT VIOLATED R.C. 4511.19 BEYOND A REASONABLE DOUBT WAS BEYOND THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶6} Due to the nature of Heimberger's assignments of error, we ...


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