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State v. Osborne

Court of Appeals of Ohio, Eleventh District, Lake

August 12, 2019

STATE OF OHIO, CITY OF WILLOWICK, Plaintiff-Appellee,
v.
CHRISTOPHER JOHN OSBORNE, Defendant-Appellant.

          Criminal Appeals from the Willoughby Municipal Court, Case Nos. 2018 TRC 00158 A, 2018 TRC 00158 B, and 2018 TRC 00158 C.

         Judgment: Affirmed.

          Donald J. Ezzone, Parkhill Professional Building, 35104 Euclid Avenue, Willoughby, OH 44094 (For Plaintiff-Appellee).

          Patrick D. Quinn, Quinn Legal Associates, OH 44094, and Joseph Hada, Mayfield Heights, OH 44124 (For Defendant-Appellant).

          OPINION

          MARY JANE TRAPP, J.

         {¶1} Appellant, Christopher John Osborne ("Mr. Osborne"), appeals the judgment of the Willoughby Municipal Court denying his motion to suppress following his pleas of no contest to and convictions for speeding and two counts of operating a vehicle under the influence of alcohol ("OVI").

         {¶2} Mr. Osborne argues (1) the police officer did not have reasonable suspicion to justify field sobriety tests, (2) the City of Willowick (the "city") did not establish that the officer administered field sobriety tests in substantial compliance with National Highway Traffic Safety Administration ("NHTSA") standards, (3) the officer did not have probable cause to arrest Mr. Osborne for OVI, and (4) the city did not demonstrate that the officer administered a breath test in substantial compliance with the Ohio Revised Code and the Ohio Administrative Code.

         {¶3} After a careful review of the record and pertinent law, we find (1) the police officer's decision to conduct field sobriety tests was justified by specific, articulable facts, (2) any possible error in finding substantial compliance with NHTSA standards was harmless, (3) the officer had probable cause to arrest Mr. Osborne for OVI, (4) Mr. Osborne's motion to suppress did not provide the city with adequate notice of the issues in dispute in relation to the breath test; and (5) with respect to Mr. Osborne's specific challenges to the breath test, the city demonstrated substantial compliance.

         {¶4} For the reasons that follow, we affirm the judgment of the Willoughby Municipal Court.

         Substantive and Procedural History

         {¶5} On January 11, 2018 at approximately 1:27 a.m., Officer Jacob Cook ("Officer Cook") of the Willowick Police Department observed Mr. Osborne's vehicle traveling westbound on State Route 2 in the City of Willowick, Ohio, at a rate of speed of 88 m.p.h. in a 60 m.p.h. zone. Officer Cook initiated a traffic stop for the speeding violation, and Mr. Osborne pulled over to the left side of the roadway rather than the right side.

         {¶6} After approaching the driver's side window of the vehicle, Officer Cook detected the odor of alcoholic beverage and slightly slurred speech. Mr. Osborne admitted he had been at the Handle Bar in the City of Eastlake where he drank at least three Long Island Iced Teas. At some point, Officer Cook also noticed that Mr. Osborne's eyes were bloodshot.

         {¶7} Officer Cook instructed Mr. Osborne to exit the vehicle so he could conduct field sobriety tests. Officer Cook proceeded to administer the horizontal gaze nystagmus ("HGN") test, where he observed all six clues of impairment. He next administered the one-leg stand, where he observed two clues of impairment, although this did not constitute a failed test. Finally, he administered the walk-and-turn, where he observed six clues of impairment. Officer Cook placed Mr. Osborne under arrest for OVI and took him to the police station.

         {¶8} At the police station, Mr. Osborne provided two breath samples on the Intoxilyzer 8000 following the expiration of a 20-minute observation period. During the collection of both samples, Officer Cook observed that Mr. Osborne's breath alcohol concentration ("BAC") was measuring above 0.190.

         {¶9} The printer attached to the Intoxilyzer failed to print the test results immediately following the test. Therefore, Officer Cook reported on the applicable state reporting form (BMV-2255) that Mr. Osborne's BAC test result was 0.190. After Mr. Osborne posted bond and was released, another officer was able to retrieve a printout of the test results from the Intoxilyzer's internal printer, which showed a BAC of 0.201. Officer Cook crossed out ".190" on the BMV-2255, wrote ".201," and initialed it.

         {¶10} Mr. Osborne was charged with OVI in violation of R.C. 4511.19(A)(1)(a), OVI in violation of R.C. 4511.19(A)(1)(h), and speeding in violation of section 333.03 of the Codified Ordinances of the City of Willowick. Mr. Osborne initially pleaded not guilty.

         {¶11} After several continuances and a change of counsel, Mr. Osborne filed a motion to suppress, alleging that the police did not have reasonable suspicion to stop his vehicle, unjustifiably expanded the scope of the stop to require field sobriety tests, did not conduct the field sobriety tests in compliance with the NHTSA rules and regulations, did not administer the breath test in compliance with R.C. 4511.19 and Ohio Adm.Code Chapter 3701, and that the breath test was inadmissible under Evid.R. 702.

         {¶12} At the hearing on the motion, Mr. Osborne waived his challenge to the officer's initial stop of his vehicle. Following the hearing, the trial court issued a judgment entry denying Mr. Osborne's motion to suppress. The trial court found that the initial traffic stop was justified based on the officer's observation of the speed violation and that the officer possessed reasonable and articulable suspicion to continue the detention of Mr. Osborne and require field sobriety testing based on the odor of alcohol, slurred speech, the time of night, excessive speed, Mr. Osborne's admission to consuming alcoholic beverages prior to driving, and the officer's previous experience in dealing with drunk drivers.

         {¶13} The trial court also found that the city established substantial compliance regarding the field sobriety tests, and they were admissible at trial as to the officer's observations. The trial court noted that the tests were not conclusive as evidence of impairment, since the one-leg stand was not a failed test.

         {¶14} The trial court further found that probable cause existed for Mr. Osborne's arrest based on his excessive speeding, the odor of alcohol, admission of drinking alcoholic beverages, observations during the field sobriety testing, and slurred speech. With regard to the breath test, the trial court referenced Mr. Osborne's "boilerplate" motion to suppress but found that the city had met its burden of substantial compliance.

         {¶15} Mr. Osborne subsequently entered pleas of no contest to the three charges. As part of his sentence, the trial court imposed three days in jail.

         {¶16} Mr. Osborne filed separate appeals for each of his three convictions, which we consolidated, sua sponte. We also granted Mr. Osborne's motion to stay execution of his three-day jail sentence during the pendency of his appeal.

         {¶17} Mr. Osborne raises the following four assignments of error:

         {¶18} "[1.] The trial court erred in finding that reasonable articulable suspicion existed for the officer to expand the scope of the investigation.

         {¶19} "[2.] The trial court erred in finding that the city proved that the officer administered the standardized field sobriety tests in substantial compliance with the NHTSA standards in effect at the time the tests were given pursuant to R.C. 4511.19(D)(4)(b).

         {¶20} "[3.] The trial court erred in finding that the city proved that the officer had probable cause to arrest the defendant in light of the admiisble [sic] evidence.

         {¶21} "[4.] The trial court erred in finding that the city proved the city showed substantial compliance with the Ohio Revised Code and the Ohio Administrative Code for ...


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