Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court, Trial Court Case No.
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No.
0095826, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Montgomery
County Courts Building, Attorney for Plaintiff-Appellee
M. KOLLIN, Atty. Reg. No. 0066964, Attorney for
1} Defendant-appellant Kevin Murray appeals his
conviction for operating a motor vehicle while under the
influence. He contends that the arresting officer had no
basis for conducting a field sobriety test. He further
contends that the officer lacked probable cause to arrest him
because the officer improperly administered the horizontal
gaze nystagmus (HGN) test. For the reasons that follow, we
Facts and Procedural Background
2} On May 18, 2018, Ohio State Trooper Jason
Hutchinson was on routine patrol driving northbound on
Interstate 75. His dashboard camera was activated. At
approximately 5:00 p.m., Hutchinson was traveling behind a
dark pickup truck. As Hutchinson began to drive onto an exit
ramp, he noticed a vehicle in front of the truck enter the
exit ramp "a little late" without signaling. Tr. p.
12. Hutchinson then observed the vehicle cross over the lane
line onto the shoulder of the exit ramp. The vehicle then
quickly moved to the left, through the right lane, and
entered the middle lane of the ramp directly in front of
Hutchinson's cruiser. The vehicle proceeded to make a
slow left turn off the ramp and onto the right shoulder of
National Road. The vehicle then came back into the lane of
travel directly in front of the cruiser. At this point,
Hutchinson initiated a traffic stop.
3} As Hutchinson approached the passenger side
window of the vehicle, he saw the driver, later identified as
Murray, fumbling through some papers. Without any prompting,
Murray gave Hutchinson a document that he claimed was his
registration. Hutchinson informed him that the document was
his insurance card. Hutchinson noted the smell of alcohol
emanating from the vehicle. He also noted that Murray's
speech was slow and slurred. When asked, Murray denied having
ingested alcohol. Murray then indicated that he had just been
released from the hospital and stated that "they had
IV's all over me." State's Exh. 1 (dashboard
camera video). Hutchinson asked Murray if he was on any
medications, and Murray stated that he was taking
medications. Hutchinson then asked Murray whether he was
permitted to drive while taking the medications. Murray again
indicated that he had been in the hospital and that a new
medication had been prescribed. Hutchinson again asked
whether Murray was permitted to drive while on the
medication, and Murray stated that he was. Murray then stated
that he was instructed to determine the medication's
effect upon him before driving. At this point, Hutchinson
asked Murray to step out of his vehicle and stand by the
front of the cruiser. Hutchinson noted that Murray's eyes
were "glossy." Tr. p. 20.
4} Once removed from the vehicle, Hutchinson
detected an odor of alcohol emanating from Murray. Murray
again denied ingesting alcohol that day. He then stated that
he had consumed alcohol the previous day, when, supposedly,
he had been hospitalized, and that he was on his way to
purchase more alcohol. Hutchinson asked Murray to remove his
glasses and asked Murray whether he had any problems with his
eyes. Murray denied any issues with his eyes and acknowledged
that he had no difficulty following objects with his eyes.
Hutchinson then administered the HGN test and determined that
Murray had six points, or clues, which is the maximum number
for the test, indicating impairment.
5} Thereafter, Hutchinson observed that Murray had
bruising on his body and that he was shaking. Hutchinson
asked Murray if he had anything wrong with his legs, and
Murray replied that he was shaky and had just been released
from a ten-day hospital/rehab stay. Based upon Murray's
condition, Hutchinson decided not to administer the walk-and
turn or the one-leg stand test, because he did not think
Murray could perform them. Murray was then placed under
arrest. Hutchinson transported Murray to the State Highway
Post where a blood alcohol content (BAC) test was
administered. The test, which was conducted at 6:15 p.m.,
indicated a blood alcohol content of .151.
6} On November 8, 2018, Murray was indicted as
follows: Count I, operating a vehicle under the influence
(OVI) (prior felony) in violation of R.C. 4511.19(A)(1)(d)
and (G)(1)(e); Count II, operating a vehicle under the
influence (prior felony) in violation of R.C.
4511.19(A)(1)(a) and (G)(1)(e); Count III, operating a motor
vehicle while under the influence in violation of R.C.
4511.09(A)(1)(d) and (G)(1)(d); and Count IV, operating a
vehicle while under the influence in violation of
4511.19(A)(1)(a) and (G)(1)(d). On December 14, 2018, Murray
filed a motion to suppress and a motion to dismiss counts I
and II. In support of the motion to dismiss, Murray noted
that the State, in charging him with OVI with a prior felony,
had mistakenly relied upon a prior conviction in Montgomery
C.P. No. 2004 CR 3792, which involved Kevin L. Murray rather
than this defendant Kevin M. Murray. The State acknowledged
the mistake and the trial court dismissed counts I and II.
The matter proceeded to a hearing on the motion to suppress.
Following the hearing, the trial court overruled the motion.
7} On April 4, 2019, Murray entered a plea of no
contest to Count III, and as part of the plea agreement, the
State dismissed Count IV. However, the trial court later
vacated the plea upon learning that Murray had been
intoxicated at the time of the plea. Thereafter, a second plea
hearing was conducted and Murray again entered a plea of no
contest to Count III; Count IV was dismissed. Murray was
found guilty and sentenced to community control, including 90
days in jail. Murray appeals from his conviction, challenging
the denial of his motion to suppress.
Reasonable Suspicion Analysis
8} Murray's first ...