Middleburg Hts. v. Gettings , 2013 Ohio 3536 ( 2013 )

[Cite as Middleburg Hts. v. Gettings, 2013-Ohio-3536.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99556
CITY OF MIDDLEBURG HEIGHTS
PLAINTIFF-APPELLEE
vs.
EUGENE J. GETTINGS, III
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Berea Municipal Court
Case No. 11 TRC 05221
BEFORE: E.A. Gallagher, J., Boyle, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: August 15, 2013
ATTORNEY FOR APPELLANT
Patrick D. Quinn
2802 Som Center Rd., #102
Willoughby Hills, OH 44094
ATTORNEY FOR APPELLEE
Peter H. Hull
Law Director
City of Middleburg Heights
15700 E. Bagley Road
Middleburg Hts., OH 44130
EILEEN A. GALLAGHER, J.:
{¶1} Eugene J. Gettings, III, appeals from the denial of his motion to suppress in
the Berea Municipal Court. Gettings argues the trial court erred in determining that the
arresting officer performed the field-sobriety tests in compliance with national guidelines
and in finding that the officer had probable cause to stop and arrest him for operating a
vehicle while intoxicated. For the following reasons, we affirm in part, reverse in part
and remand for proceedings consistent with this opinion.
{¶2} In the early morning hours of December 24, 2011, Middleburg Heights
police officer Dennis Santiago observed a silver Chevy Traverse weaving as it traveled
westbound on Bagley Road. Santiago testified that he saw the vehicle weaving to the
left, drive on top of lane lines and even cross halfway into the center lane of Bagley
Road. Santiago stopped the vehicle in the parking lot of Perkins restaurant and the
driver was identified as Eugene J. Gettings, III.
{¶3} Gettings initially related to Santiago that he did not know why he was
stopped but after hearing why, Gettings stated that he was “messing around” with his
radio, which may have caused him to weave. Santiago testified that he asked Gettings
for his license and insurance information and that it took Gettings an unusually long time
to produce the documents. Additionally, when asked from where he was coming,
Gettings provided the officer with three different stories. Santiago testified that he
asked Gettings if he had been drinking, to which Gettings admitted that he consumed two
beers and he further testified that Gettings’ eyes were bloodshot, watery and glassy, his
speech was slurred and slow and that he had a strong odor of alcohol emanating from his
person.
{¶4} Santiago conducted a couple of “pre-exit” tests. While Gettings remained
in the vehicle, Santiago performed a “condensed” Horizontal Gaze Nystagmus (HGN)
test, the finger dexterity test, the number count and the alphabet recitation. He testified
that he observed impairment in both eyes during the HGN test, observed clues of
impairment on the finger dexterity test as well as in both the number count and alphabet
recitation. In particular, when ordered to count down from 89 to 65, backwards,
Gettings stopped at the number 80 and failed to respond at all when asked to recite from
D to P in the alphabet.
{¶5} Santiago testified that he asked Gettings to exit the vehicle so that he could
perform the three standardized field-sobriety tests as outlined by the National Highway
Traffic Safety Administration (NHTSA). Santiago performed the “walk-and-turn test,”
the “one-leg-stand,” and the HGN test and testified that Gettings failed all three.
Santiago testified that he performed all field-sobriety tests in compliance with the
NHTSA standards and that it was his belief that Gettings was under the influence of
alcohol.
{¶6} The city and Gettings stipulated to the results of a breath alcohol test,
which indicated a .177 breath alcohol content. Santiago cited Gettings for OVI, in
violation of R.C. 4511.19(A)(1)(a), BAC (breath) .17 or higher, in violation of R.C.
4511.19(A)(1)(h), driving under suspension — failure to reinstate, in violation of R.C.
4510.21 and continuous lanes weaving in violation of R.C. 4511.33(A)(1). Gettings
filed a motion to suppress, and the trial court conducted a hearing. In his motion,
Gettings argued that Officer Santiago did not have probable cause to perform the
field-sobriety tests, that there was no probable cause to arrest for OVI and that Santiago
did not perform the field-sobriety tests in compliance with NHTSA. The trial court
overruled Gettings’ motion finding that Officer Santiago had reasonable suspicion to
conduct field-sobriety tests and that he conducted them in substantial compliance with
NHTSA standards and that the officer had probable cause to arrest for OVI.
{¶7} Gettings pleaded no contest to operating a vehicle while intoxicated and
was found guilty. Pursuant to an agreement with the city, all remaining charges were
dismissed. The trial court sentenced Gettings to ten days in jail, imposed a fine of $750
and a 730-day license suspension, ordered Gettings to pay court costs and placed him on
two years of probation with multiple conditions. Gettings’ motion to stay execution of
his sentence was granted. Gettings appeals, raising the following two assigned errors:
Assignment of Error I
The Trial Court erred in finding that the Standardized Field-sobriety tests
were conducted in substantial compliance with NHTSA Guidelines.
Assignment of Error II
The Trial Court erred in finding probable cause for Appellant’s OVI, stop
and arrest.
{¶8} In his first assigned error, Gettings argues that the trial court erred when it
found that Santiago substantially complied with the NHTSA standards. We agree.
Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes
the role of trier of fact and is therefore in the best position to resolve factual
questions and evaluate the credibility of witnesses. Consequently, an
appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence.
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71.
{¶9} However, as it relates to the trial court’s conclusion of law, we apply a de
novo standard of review and decide whether the facts satisfy the applicable legal
standard. Id., Parma Hts. v. Dedejczyk, 8th Dist. Cuyahoga No. 97664,
2012-Ohio-3458.
{¶10} A motion to suppress must state its legal and factual bases with sufficient
particularity to place the prosecutor and the court on notice of the issues to be decided.
State v. Schindler, 70 Ohio St.3d 54, 1994-Ohio-452, 636 N.E.2d 319. Once a
defendant sets forth a sufficient basis for a motion to suppress, the burden shifts to the
state to demonstrate proper compliance with the regulations involved. State v.
Plummer, 22 Ohio St.3d 292, 490 N.E.2d 902 (1986). In driving-under-the-influence
cases, if a motion sufficiently raises an issue involving the applicable regulations, the
state must then show substantial compliance with the regulation at issue. Plummer;
State v. Mai, 2d Dist. Greene No. 2005-CA-115, 2006-Ohio-1430.
{¶11} In the present case, Gettings’ motion to suppress raises 38 different
reasons to suppress the results of the field-sobriety tests and the observations of the
officer. The crux of Gettings’ arguments, which he reiterated during the oral hearing on
his motion to suppress, were that Officer Santiago did not perform the field-sobriety tests
in compliance with the NHTSA standards, and that Officer Santiago did not have
probable cause to arrest Gettings for OVI. Thus, Gettings sufficiently raised an issue
involving the applicable regulations; the burden then shifted to the city to show
substantial compliance with the regulation at issue. Plummer; Mai, supra.
{¶12} As stated by this court in Dedejczyk:
In order for the results of field-sobriety tests to be admissible, the state is
not required to show strict compliance with testing standards, but must
instead demonstrate that the officer substantially complied with NHTSA
standards. R.C. 4511.19(D)(4)(b); State v. Clark, 12th Dist. No.
CA2009-10-039, 2010-Ohio-4567, ¶ 11. “A determination of whether the
facts satisfy the substantial compliance standard is made on a case-by-case
basis.” State v. Fink, 12th Dist. Nos. CA2008-10-118, CA2008-10-119,
2009 Ohio 3538, ¶ 26. The state may demonstrate what the NHTSA
standards are through competent testimony and/or by introducing the
applicable portions of the NHTSA manual. State v. Boczar, 113 Ohio St.
3d 148, 2007-Ohio-1251, 863 N.E.2d 155, at ¶ 28.
But even if a court finds that the officer did not substantially comply with
the NHTSA standards (which would require the results of the tests to be
excluded), the officer’s testimony regarding the defendant’s performance
on nonscientific field-sobriety tests is admissible under Evid.R. 701. State
v. Schmitt, 101 Ohio St. 3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶ 14-15.
{¶13} During the hearing on Gettings’ motion to suppress, the city, in support of
its argument that the stop and arrest were lawful and the field-sobriety tests were
compliant with NHTSA, relied on the testimony of Officer Santiago. However, when
questioning Santiago about the three field-sobriety tests he performed, the city never
elicited Santiago’s qualifications as a police officer or his training in conducting
field-sobriety testing. Further, the city asked no questions as to how Santiago conducted
each of the three tests and what NHTSA requires. The city simply questioned whether
the tests were performed in compliance with NHTSA, which Santiago answered in the
affirmative. The city did not admit the NHTSA manual as evidence.
HGN Test
In conducting the HGN test, the NHTSA manual provides that “a police
officer should instruct the suspect that [he is] going to check the suspect’s
eyes, that the suspect should keep [his] head still and follow the stimulus
with [his] eyes, and that the suspect should do so until told to stop. After
these initial instructions are provided, the officer is instructed to position
the stimulus approximately 12 to 15 inches from the suspect’s nose and
slightly above eye level. The officer is then told to check the suspect’s
pupils to determine if they are of equal size, the suspect’s ability to track
the stimulus, and whether the suspect’s tracking is smooth. The officer is
then to check the suspect for nystagmus at maximum deviation and for
onset of nystagmus prior to 45 degrees.” The manual instructs the officer
to repeat each of the three portions of the HGN test.
In addition, the NHTSA guidelines list certain approximate and minimum
time requirements for the various portions of the test. For instance, when
checking for smooth pursuit, the time to complete the tracking of one eye
should take approximately four seconds. When checking for distinct
nystagmus at maximum deviation, the examiner must hold the stimulus at
maximum deviation for a minimum of four seconds. When checking for
the onset of nystagmus prior to 45 degrees, the officer should move the
stimulus from the suspect’s eye to his shoulder at an approximate speed of
four seconds.
Clark, supra; Dedejczyk; supra.
{¶14} Gettings argues that Santiago did not substantially comply with the
NHTSA standards because he performed a “condensed” HGN test while Gettings was
seated inside the vehicle1 and that the City failed to present any substantive evidence that
the HGN test conducted outside of the vehicle substantially complied with the NHTSA
requirements.
{¶15} After reviewing the record, we agree that Officer Santiago did not testify
to giving Gettings instructions prior to performing the HGN test; he did not testify to the
1
We limit our analysis to the HGN test performed outside of the vehicle. On
cross-examination, Officer Santiago admitted that the “condensed” HGN test he
performed while Gettings was seated in his vehicle was not a standardized NHTSA
test. As such, this “condensed” HGN test is not a recognized NHTSA-field-sobriety
manner in which the test was given and, he did not testify to the NHTSA standards. In
fact, the only testimony elicited concerning the HGN test performed outside of the
vehicle is as follows:
Q: Now, did you also administer a horizontal gaze nystagmus test outside
the vehicle?
A: Yes, I did.
Q: And what were the results of that test?
A: I received six clues on that test.
Q: And what does that indicate to you?
A: Clues of impairment.
{¶16} That testimony, without more, does not establish substantial compliance
with the NHTSA standards for the HGN test. As such, the trial court erred in failing to
suppress the results from the HGN test performed outside of the vehicle. See also Mai,
2d Dist. Greene No. 2005-CA-115, 2006-Ohio-1430.
One-Leg-Stand Test, Walk-and-Turn Test:
{¶17} As stated by this court in Dedejczyk,
In administering the one-leg-stand test, the NHTSA manual requires the
officer to instruct subjects to begin the test with their feet together and keep
their arms at their side for the entire test. The officer must also tell the
suspects that they must raise one leg, either leg, six inches from the ground
and maintain that position while counting out loud for thirty seconds.
NHTSA standards provide that the counting should be done in the
following manner: “one thousand one, one thousand and two, until told to
stop.”
Regarding the walk-and-turn test, the NHTSA manual states that an officer
test and cannot be used as scientific evidence of intoxication.
is required to first instruct the suspect of the initial positioning, which
requires the suspect to stand with his arms down at his side, and to place his
left foot on a line (real or imaginary). The suspect’s right foot is to be
placed on the line ahead of the left foot, with the heel of the right foot
against the toe of the left foot. The suspect is then told to remain in that
position while further instructions are given. These further instructions
include the method by which the suspect walks while touching his heel to
his tow for every step, counting the nine steps out loud while walking down
the line, and making a turn with small steps with one foot while keeping the
other foot on the line. The officer is also told to demonstrate the
instructions to ensure that the suspect fully understands.
See also Clark.
{¶18} As it relates to both the one-leg-stand test and the walk-and-turn test,
Gettings argues that the NHTSA manual provides restrictions on performing both of
those tests on people with knee problems. In particular, Gettings’ counsel instructed
Officer Santiago to read the following portion of the NHTSA manual:
The original research indicated that certain individuals over 65 years of
age, back, leg or inner ear problems or people who were overweight by 50
or more pounds had difficulty performing this test. Individuals wearing
heels more than 2 inches high should be given the opportunity to remove
their shoes.
{¶19} During the hearing, Gettings testified that he suffered from knee problems
and that he walks with a limp. Specifically, Gettings testified that he told Officer
Santiago that he was going to “fail because my knees — I have a torn meniscus in my
right leg.” Santiago admitted, under cross-examination, that he was aware that Gettings
had knee issues and that his report documented those problems. In response to the
testimony of Gettings, Santiago was recalled to the witness stand by the city and testified
that Gettings “said he had some knee issues from wrestling back in high school and
[Gettings] stated that he had no problem standing or walking.”
{¶20} We cannot ignore the fact that the one-leg-stand test and the
walk-and-turn tests were performed by Gettings without Santiago’s consideration of, and
adaptation for, Gettings’ alleged physical problem. Though the officer and Gettings
provided conflicting testimony as to the seriousness of Gettings’ knee problems, both
sides admit that prior to administering those tests, Gettings advised Santiago that he had
knee issues, which Santiago then documented in his report.
{¶21} In State v. Lange, 12th Dist. Butler No. CA2007-09-232,
2008-Ohio-3595, a defendant attempted to perform the walk-and-turn test but had
problems successfully completing the test before he refused to continue. When the
officer began to explain the one-leg-stand test to him, the defendant informed the officer
that he had leg problems and the officer halted the test. The court determined that the
“purpose of the walk and turn test to assist the officer in determining possible impairment
is thwarted by the officer’s lack of knowledge of appellee’s leg problem.” The Twelfth
District then upheld the suppression of the results of the walk-and-turn field-sobriety test
because the administering officer failed to consider or adapt the test for the defendant’s
leg problems.
{¶22} We find the holding of Lange persuasive in this case. Gettings informed
Santiago that he had knee problems that Santiago testified he documented in his report.
Additionally, Santiago read a portion of the NHTSA manual, which notes problems with
both the walk-and-turn and the one-leg-stand tests in individuals with “leg” problems.
Santiago acknowledged this restriction during the oral hearing. However, even
knowing all of the above, Santiago provided no consideration or adaptation of the test for
Gettings’ knee problems. The city provided no evidence to the court as to what
adaptations or consideration the NHTSA manual requires, they simply disputed the extent
of Gettings’ knee problem.
{¶23} Here, the city has failed to prove that the walk-and-turn and one-leg-stand
field-sobriety tests were performed in substantial compliance with the NHSTA
requirements. Accordingly, the trial court erred in failing to suppress the results of both
the walk-and-turn and one-leg-stand field-sobriety tests. Lange, supra; State v. Baker,
12th Dist. Warren No. CA2009-06-079, 2010-Ohio-1289.
{¶24} Gettings’ first assignment of error is sustained.
{¶25} In his second assignment of error, Gettings argues that there was no
probable cause to stop and arrest him for OVI. We disagree.
{¶26} In determining whether the police had probable cause to arrest appellant
for OVI, we must determine whether, at the moment of arrest, the police had information
sufficient to cause a prudent person to believe that the suspect was driving under the
influence. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). A
probable-cause determination is based on the “totality” of facts and circumstances within
a police officer’s knowledge. State v. Miller, 117 Ohio App.3d 750, 761, 691 N.E.2d
703 (11th Dist.1997). While the odor of alcohol, glassy eyes, slurred speech, and other
indicia of alcohol use by a driver are, in and of themselves, insufficient to constitute
probable cause to arrest, they are factors to be considered in determining the existence of
probable cause. Kirtland Hills v. Deir, 11th Dist. Lake No. 2004-L-005,
2005-Ohio-1563; Dedejczyk.
{¶27} Even where the results of field-sobriety tests are properly suppressed, this
does not prohibit a police officer from testifying about his observations of a suspect while
administering or attempting to administer field-sobriety tests. State v. Schmitt, 101 Ohio
St.3d 79, 2004-Ohio-37, 801 N.E.2d 446. Although we concluded that the test results of
the field-sobriety tests should have been suppressed, pursuant to Schmitt, Santiago’s
observations regarding Gettings’ test performance are admissible in determining whether
he had probable cause to arrest Gettings.
{¶28} Santiago testified that he witnessed Gettings weave out of his lane three
times and cross halfway into the center lane at one point. Gettings’ eyes were glassy,
bloodshot and watery and his speech was noticeably slow and slurred. Gettings did not
realize that he had been driving erratically and there was a strong odor of alcoholic
beverage emanating from his person. Gettings provided several stories when asked
where he had been and he failed to respond when Santiago asked him to recite the
alphabet from D to P. Additionally, when asked to count backwards from 89 to 65,
Gettings stopped when he reached 80.
{¶29} Regarding the field-sobriety tests, Santiago testified that during the
walk-and-turn test, Gettings was unable to keep his balance during the instructions,
stepped out of starting position, raised his arms more than six inches for balance, did not
walk heel-to-toe, stepped off the line multiple times, lost balance while turning and
turned incorrectly. Additionally, during the one-leg stand, Santiago testified that
Gettings swayed while balancing, raised his arms more than six inches for balance, put
his foot down and could not complete the test.
{¶30} Although Gettings attempts to explain all of the above, arguing that his
lack of sleep and documented knee problems accounted for Santiago’s observations, the
trial court, in ruling on a motion to dismiss, evaluated the credibility of this testimony and
determined that Santiago had probable cause to stop and arrest Gettings for OVI. Based
on the observations noted above, we find this determination to be supported by
competent, credible evidence and affirm the trial court’s ruling that Santiago had
probable cause to stop and arrest Gettings for OVI. See Burnside, supra.
{¶31} Gettings’ second assignment of error is overruled.
{¶32} Accordingly, based on our decision that field-sobriety-test results should
have been suppressed, it is necessary to remand this case for a determination as to
whether there was sufficient evidence, without the field-sobriety-test-results, to support
Gettings’ conviction. See State v. Purdy, 6th Dist. Huron No. H-04-008,
2004-Ohio-7069.
{¶33} The judgment of the trial court is affirmed in part, reversed in part and
remanded.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR