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State v. Murray

Court of Appeals of Ohio, Second District, Montgomery

January 10, 2020

STATE OF OHIO Plaintiff-Appellee
v.
KEVIN M. MURRAY Defendant-Appellant

          Criminal Appeal from Common Pleas Court, Trial Court Case No. 2018-CR-2799

          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

          THOMAS M. KOLLIN, Atty. Reg. No. 0066964, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 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 affirm.

         I. 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.[1] 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.

         II. Reasonable Suspicion Analysis

         {¶ 8} Murray's first ...


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