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State v. Smith

Court of Appeals of Ohio, Fifth District, Licking

July 17, 2019

STATE OF OHIO Plaintiff-Appellee
v.
TAMMI S. SMITH Defendant-Appellant

          Criminal appeal from the Licking County Municipal Court, Case No.17-TRC-08915

          For Plaintiff-Appellee MARK GARDNER

          For Defendant-Appellant JEFFERY BLOSSER

          JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.

          OPINION

          GWIN, P.J.

         {¶1} 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.

         Facts and Procedural History

         {¶2} 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

         {¶3} 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, 2018.

         {¶4} 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.

         {¶5} Chief Cameron Dailey[1] 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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

         {¶9} 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.

         {¶10} 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 ...


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