Opinion
WD-21-009
09-30-2021
State of Ohio/City of Bowling Green Appellee v. David Wysong, III Appellant
Hunter Brown, Bowling Green City Prosecutor, and Nicholas P. Wainwright Assistant Prosecuting Attorney, for appellee. Blaise Katter and D. Timothy Huey, for appellant.
Trial Court No. 20TRC5077.
Hunter Brown, Bowling Green City Prosecutor, and Nicholas P. Wainwright Assistant Prosecuting Attorney, for appellee.
Blaise Katter and D. Timothy Huey, for appellant.
DECISION AND JUDGMENT
ZMUDA, P.J.
I. Introduction
{¶ 1} This matter is before the court on appeal of the judgment of the Bowling Green Municipal Court denying appellant's motion to suppress. For the reasons that follow, we affirm.
II. Background and Procedural History
{¶ 2} On October 29, 2019, appellant, David L. Wysong, III, drove around road closure signs on State Route 582, in the 5000 block of Middleton Pike, and when he attempted to go around a piece of excavating equipment that blocked the roadway, he became stuck on the shoulder of the road, teetering on the edge of a ditch. As appellant attempted to free his vehicle, a neighbor approached to see what was going on and, smelling alcohol on appellant, went back inside and called 911. Appellant could not free his vehicle and called for a tow truck.
{¶ 3} Wood County Sheriff Deputy Trey Farabee responded to the 911 call around 10:40 p.m. and observed an excavator in the roadway and posted closure signs on both sides. He believed ODOT was doing ditch work at the time, and appellant's vehicle was "high-pointed" and teetering on the edge of the ditch.
{¶ 4} Deputy Farabee first spoke with appellant to find out what happened, and detected the odor of alcohol on appellant. The deputy did not note slurred speech and appellant was polite and cooperative. However, when asked, appellant admitted to having three drinks that evening, claiming he consumed his last drink three hours earlier. Because appellant's car could not be driven and the night was cold and wet, Deputy Farabee walked appellant back to his cruiser so appellant could have a seat out of the weather.
{¶ 5} Appellant took a seat in the back of the cruiser, facing out with both feet touching the pavement, and Deputy Farabee conducted a horizontal gaze nystagmus ("HGN") test. The HGN test focuses on eye movement, with unequal tracking or involuntary jerking an indicator of alcohol impairment. Deputy Farabee observed six out of six clues, indicating impairment. He then took appellant into investigative custody, with an explanation to appellant, and placed him in front handcuffs, in the back seat of the cruiser, for transport to the sheriffs office.
{¶ 6} At appellant's request, Deputy Farabee gave appellant his cell phone so appellant could call for a ride as they drove to the sheriffs office. Deputy Farabee overheard appellant's call, including appellant's statements that he messed up and had a few drinks and that he normally never drinks and drives. When Deputy Farabee learned that appellant's friend would not give him a ride home from Bowling Green, the deputy offered to drive appellant home after he finished the paperwork, if appellant "created no issues."
{¶ 7} At the sheriffs office, appellant agreed to perform additional sobriety tests, conducted in the garage area of the sheriffs office on a dry, flat surface. Deputy Farabee observed signs of impairment as appellant attempted to walk a line and turn and then stand on one leg. He placed appellant under arrest and appellant consented to provide a breath sample, testing at 0.110. Appellant was charged with operating a vehicle while intoxicated in violation of R.C. 4511.19(A)(1)(a).
{¶ 8} In the trial court, appellant initially entered a plea of not guilty. He filed a motion to suppress evidence obtained, including the phone conversation overheard by Deputy Farabee and the results of the breath test. Appellant argued that there was insufficient probable cause to conduct field sobriety tests, that his statements were obtained without first providing Miranda warnings, and his consent to provide a breath test was not voluntary, based on his reliance on Deputy Farabee for a ride home characterized by appellant as a coercive tactic.
{¶ 9} After a hearing on his motion on January 20, 2020, the trial court denied the motion in a ruling from the bench. The trial court found:
Like many of these cases this case presents us the questions about how many clues of indicia does an officer have to have in order to arrest or at least take somebody to conduct field sobriety tests to start with. And, you know, the case law that this court's reviewed does not seem to suggest that you need to have every type of physical manifestation or verbal manifestation or otherwise from a suspect in order to request that they engage in field sobriety tests.
We have an officer called to a scene. Prosecution would like to almost liken it to an accident where the defendant has driven around signs that prohibited him from entering the roadway and got his vehicle stuck.
Late at night, recognizing that this defendant wanted to go home, it would be okay, I think, for an officer to think that possibility the mere decision, after he smells alcohol on the defendant and that's confirmed by the witness, that the defendant's thought processes were not so clear to cause him to decide to drive past those signs in an effort to get his way
home. But you have that situation. You have the defendant with the odor of alcoholic beverage coming from his person. It wasn't defined as to what the strength was. And admissions, if I understand the testimony correctly, it seems as if admissions to consumption of three beverages occurred before we even got anywhere near the officer's cruiser.
* * *
Here is a relatively innocuous test. The defendant is sitting in the back seat of the vehicle and apparently we're talking about an SUV. So the vehicle is above the regular level. Defendant appears at least from here to be a relatively tall individual. It says 6'2" on the citation. And the court take judicial notice of the height of the arresting officer and his explanation of being at eye level to do that test. The Court doesn't' believe there was anything wrong with that test. He observed six clues on the standardized field sobriety test there.
Then he wanted to get the defendant away from what he's described as a muddy and wet pavement and takes him to the Sally port or the garage and requests that he do, or asks, I guess, if he would be willing to take some other tests.
When an officer, the court - the court perceives when an officer tells a suspect that if you don't cause me any issues I'll even drive you home tonight, that doesn't necessarily mean take all these tests or I'm going to
put you in jail and arrest you right now; you're going to jail. I have had some situations with testimony from officers where it sure seemed like that's what they were saying, and I have found that.
So I don't see a problem there. I think that there was reasonable articulable suspicion based on what the officer saw out there based on then the field sobriety test at the scene. Certainly there was enough once there was a PBT which can be relied upon for probable cause purposes. This court thinks that there was probably probable cause to arrest him for OVI before he got to the station or got to the garage.
There was additional activity that went on at the garage. And the court believes the defendant's performance in the field sobriety test indicated that he was under the influence of alcohol. And as a result he was arrested, read the BMV 2255. The Court believes probable cause was present and there was nothing with that particular arrest. I will deny the motion to suppress.
{¶ 10} Upon hearing this decision, appellant changed his plea to no contest and requested appointment of counsel for an appeal. After conducting the required colloquy with appellant, the trial court accepted the plea, found appellant guilty, and imposed 33 days in the justice center, with 30 days suspended. The trial court permitted appellant to serve his 3 days in a driver intervention program. The trial court further imposed a one- year license suspension from the date of the offense, with driving privileges, and imposed a two-year term of community control.
The record includes the transcript of the hearing on the motion to suppress. After the trial court denied the motion, the hearing continued to a change of plea and sentencing hearing. While not part of the record on appeal, it appears appellant faced additional charges in addition to the OVI conviction. Based on the sentences imposed, appellant was charged and convicted for having a prohibited alcohol count and driving on a closed roadway. The trial court fined appellant $1, 075 for the prohibited alcohol count with $475 of that amount suspended, and $150 for driving on the closed roadway. These convictions are not challenged on appeal.
{¶ 11} Appellant filed a timely appeal.
III. Assignment of Error
{¶ 12} Appellant now asserts the following assignment of error:
The trial court should have granted the motion to suppress due to the investigating officer failing to give timely Miranda advisements. The court should have also granted the motion because the deputy only conducted one field sobriety test and observed no impaired driving before placing [appellant] in custody.
IV. Analysis
{¶ 13} Appellant argues that the prosecution improperly used his statements during the phone call for a ride against him, in violation of his Miranda rights. He also argues that he was taken into custody without sufficient cause, arguing the results of the HGN test did not provide probable cause for an OVI offense. We address each argument in turn.
{¶ 14} Appellant argues that the trial court should have suppressed statements and the results of his field sobriety tests because Deputy Farabee failed to advise him of his Miranda rights. In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), "the United States Supreme Court established procedural safeguards for securing the privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution." Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, ¶ 8. This Fifth Amendment privilege applies in a state proceeding, pursuant to the Fourteenth Amendment, with state law providing similar protection, pursuant to Article I, Section 10 of the Ohio Constitution. Oles at ¶ 8, citing Malloy v. Hogan, 378 U.S.1, 3, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
{¶ 15} A review of a trial court's decision on a motion to suppress "presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. In reviewing the decision, we must "accept the trial court's findings of fact if they are supported by competent, credible evidence." Oregon v. Kemp, 6th Dist. Lucas No. L-15-1053, 2015-Ohio-4410, ¶ 11, citing State v. Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993). In this case, the trial court found no Miranda violation and sufficient probable cause based on the HGN test and Deputy Farabee's observations at the scene.
{¶ 16} The only pre-arrest custody, in this case, occurred as part of the initial traffic stop. Deputy Farabee responded to a report of a disabled vehicle and a driver who smelled of alcohol. That driver, appellant, admitted to consuming three drinks earlier that night. The challenged statements, moreover, were not a response to questioning by Deputy Farabee, but occurred during appellant's phone conversation with his friend. "The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing[.]" Berkemer v. McCarty, 468 U.S. 420, 433, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).
{¶ 17} Appellant arguably demonstrates custody, but he fails to identify any questioning by the deputy, with no coercion or trickery evident in the record. Law enforcement must administer Miranda warnings "only when a suspect is subjected to both custody and interrogation." (Citation omitted.) State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 24. Spontaneous, unsolicited statements do not implicate Miranda. Id., citing Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
{¶ 18} Appellant also fails to identify a lack of sufficient indications of impaired driving, considering the record. Appellant admitted to consuming alcohol and the deputy noted the odor of alcohol on appellant. Appellant also drove around closure signs and became stuck in an obvious construction zone. Deputy Farabee did not need to witness appellant's driving, because the end result of appellant's driving indicated impaired reasoning and bad driving. Furthermore, all of these indicators preceded the deputy's administration of the HGN test, which resulted in observation of six out of six indicators.
{¶ 19} Without challenging the results of the HGN test, appellant argues that this test - alone - did not support taking him into custody. Deputy Farabee took appellant into investigative custody after the HGN test and transported him to the sheriffs office for additional sobriety tests, and after those tests, placed appellant under arrest. We agree with the trial court that the results of the HGN test, along with other indicators observed by and known to Deputy Farabee, provided sufficient probable cause to take appellant to the sheriffs office for additional field sobriety tests.
{¶ 20} "Ohio courts recognize that a number of factors may supply an officer with reasonable suspicion to conduct field sobriety tests, including, but not limited to (1) the time of day that the stop occurred; (2) the area that the stop occurred; (3) whether there was erratic driving that might point to a lack of coordination; (4) the existence of a 'cognizable report' that the driver might be intoxicated; (5) the appearance of the suspect's eyes; (6) impairments related to the individual's speech; (7) an odor of alcohol on the car or on the person; (8) the strength of that odor; (9) lack of coordination after the stop; (10) 'the suspect's demeanor'; and (11) the suspect's admission of alcohol consumption." City of Bowling Green v. Murray, 6th Dist. Wood No. WD-18-045, 2019-Ohio-4285, ¶ 20, citing State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761 (11th Dist.1998), fn. 2. We have previously found reasonable suspicion for field sobriety tests based only on the odor of alcohol and admission to drinking. See State v. Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, ¶18
{¶ 21} In this case, Deputy Farabee smelled alcohol on appellant and appellant admitted to consuming alcohol earlier that night. Additionally, while Deputy Farabee did not observe appellant's driving, the evidence of appellant's bad driving was apparent, as appellant had driven past closure signs and "high-pointed" his vehicle in an attempt to drive around excavation equipment to traverse a closed road. Appellant also performed poorly on the HGN test, registering six out of a possible six clues, demonstrating impairment. These circumstances supported Deputy Farabee's decision to take appellant into investigative custody in order to conduct additional field sobriety tests, and the trial court, therefore, did not err in denying the motion to suppress. Accordingly, we find appellant's sole assignment of error not well-taken.
V. Conclusion
{¶ 22} For the forgoing reasons, we affirm the judgment of the Bowling Green Municipal Court. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.LocApp.R. 4.
Thomas J. Osowik, J., Gene A. Zmuda, P.J., Myron C. Duhart J. CONCUR.