Court of Appeals of Ohio, Fifth District, Licking
Criminal appeal from the Licking County Municipal Court, Case
Plaintiff-Appellee MARK GARDNER
Defendant-Appellant JEFFERY BLOSSER
JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman,
J., Hon. Patricia A. Delaney, J.
Defendant-appellant Tammi S. Smith ["Smith"]
appeals her conviction and sentence in the Licking County
Municipal Court on one count of OVI "prohibited
level" in violation of R.C. 4511.19(A)(1)(h).
Plaintiff-appellee is the State of Ohio.
and Procedural History
Smith was cited on July 10, 2017 with the offenses of OVI,
"Under the Influence", in violation of R.C.
4511.19(A)(1)(a) OVI, "prohibited level" in
violation of R.C. 4511.19(A)(1)(h) and Physical control in
violation of R.C. 4511.194
Smith filed her first Motion to Suppress on August 29, 2017
and an additional Motion to Suppress was filed on October 20,
2017. After a number of continuances, the oral hearing on the
Motions to Suppress was held on January 4, 2018. On March 6,
2018, the Court denied the Motions to Suppress and an Entry
was filed on May 15, 2018. A jury trial commenced on July 26,
Kevin Benson testified that as he headed northbound on State
Route 13 and he saw a vehicle tailgating the car in front of
it, slam the brakes on causing the car to "nose dive
down" and then almost going off the roadway several
times. He followed the car to an intersection and noticed the
traffic light turn from red to green several times before the
car proceeded. Benson approached the car to see if the driver
was ok. Benson testified that Smith looked to be asleep, her
head was down and her eyes were closed. When he knocked on
the driver's side window, the car abruptly turned right
onto eastbound U.S. 62 and then a left on Wells Avenue. He
saw a police car and stopped to tell the officer to follow
the suspect. He then continued to follow the suspect to a
residence in Utica and remained on the scene until the
officer arrived, parked, and approached the house. He did see
Smith exit the vehicle and go into the house.
Chief Cameron Dailey of the Utica Police Department testified
that on the evening of July 10, 2017, he was at the
intersection of Wells Avenue and U.S. 62 facing southbound.
He saw a vehicle travelling approximately 20-25 miles per
hour on U.S. 62, and as the vehicle turned onto Wells, Dailey
made eye contact with the driver. He felt that she was
slumping in her seat and appeared like a person who had
overdosed on heroin.
Chief Dailey further testified that as he started to pull out
to get turned around, Benson pulled up quickly and stated
that Dailey should stop her, she almost hit a car, and she
almost hit a guardrail. Dailey turned incorrectly at Mill
Street and lost sight of the suspect and Benson but was
directed to the residence by his dispatcher based on the
registered owner's address. Dailey testified that as he
pulled into the driveway Smith was walking towards the
residence, toward the front door, and was not maintaining her
balance very well. She stumbled a couple of times as she was
going in the door. He went to the door and made eye contact
with Smith. He "urged" her to come outside and
speak with him. Smith complied. Smith denied at that time
that she had consumed any alcohol but admitted that she had a
prescription for muscle relaxers.
Upon approaching Smith, Dailey could smell the odor of an
alcoholic beverage. After speaking with Smith, Dailey asked
her to perform field sobriety tests. ["FST] He was
unable to successfully administer the horizontal gaze
nystagmus ("HGN") test because of the defendant
repeatedly moving her head instead of just her eyes. He tried
to conduct the walk and turn ("WAT") test, however,
Smith stumbled twice, nearly falling to the ground. For
safety, Dailey did not perform other field tests.
Chief Dailey then placed Smith under arrest for OVI and
advised her of her Miranda rights. At the police
station, Smith had trouble providing her social security
number. Chief Dailey read BMV Form 2255 to Smith and she
agreed to take the requested BAC Datamaster breath test with
a result of .253
Jolanda Davila, a friend of Smith, testified that they had
made plans to get together after work that evening. Davila
was aware Smith had an argument with her husband that day and
was upset about it. By the time Davila got home from work,
Smith was already there. She stated that the door was shut at
first, but then Smith came outside with Davila's dog.
After greeting each other, they went back into the house and
left the door open. Ms. Davila testified that Smith did not
seem intoxicated when she had contact with her at the
residence and that she did not see Smith consume any alcohol.
Davila testified that she had both wine and liquor in her
house that day. She noted that she felt there was less liquid
in the liquor bottle when she got home than when she left for
work that morning.
After the testimony was completed, the Jury found Smith
guilty of the two OVI charges. The Physical Control charge
was dismissed. The state elected to proceed on the ...