37 N.E.3d 831 (Ohio Mun. 2015), 2014 TRC 063880, City of Cleveland v. Bluhm

Docket Nº:2014 TRC 063880
Citation:37 N.E.3d 831
Opinion Judge:Emanuella Groves, Judge.
Party Name:CITY OF CLEVELAND, Plaintiff v. RICHARD A. BLUHM, Defendant
Attorney:Assistant Prosecuting Attorney Karyn Lynn, for the City of Cleveland. Attorney Patrick Leary, for defendant.
Case Date:August 07, 2015

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37 N.E.3d 831 (Ohio Mun. 2015)




2014 TRC 063880

Cleveland Municipal Court, Ohio, Cuyahoga

August 7, 2015

          Assistant Prosecuting Attorney Karyn Lynn, for the City of Cleveland.

         Attorney Patrick Leary, for defendant.

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         Emanuella Groves, Judge.

         Richard A. Bluhm (hereinafter referred to as " defendant" ) was arrested on December 7, 2014 at approximately 2:00 p.m. for driving while impaired. The underlying facts to support the arrest are limited to defendant's failure to stop at the stop bar painted on the street although he stopped

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for the red light; slight odor of alcohol, glassy eyes, slurred speech, and failed horizontal gaze nystagmus (HGN) field sobriety test. The defendant filed a motion to suppress challenging whether there was probable cause for police to ask defendant to get out of the car, and whether there was substantial compliance in the execution of the HGN test.

         On March 27, 2015, the court held a hearing on the motion to suppress. The City of Cleveland called one witness, Ohio Highway Patrol Trooper Walter Martens (" the trooper" ). The trooper's testimony revealed the following:

The defendant was stopped for stopping beyond the painted stop bar. The stop bar was a distance before the traffic signal light. Upon observing the defendant stop beyond the bar, the trooper followed the defendant approximately one third of a mile. No additional traffic infractions were committed. When the trooper stopped the defendant he observed glassy eyes and a slight odor of alcohol. As a result of these observations, the trooper asked the defendant out of the vehicle for further investigation. The trooper had the defendant perform three field sobriety tests: horizontal gaze nystagmus (HGN), one-leg stand and heel-to-toe tests. The defendant failed the HGN test, but passed the one-leg stand and heel-to-toe tests. The trooper admitted that in the execution of the HGN test he failed to check for resting nystagmus and failed to check the onset of nystagmus at 45 degrees twice.

         Upon reviewing the video, the defendant conceded that he failed to stop at the stop bar. However, he contended that the trooper did not have additional facts to support probable cause for further investigation, i.e. asking the defendant to step out of the vehicle. Therefore, the defendant continued with his challenge of probable cause and the trooper's execution of the HGN test.

          Although the trooper stopped the defendant for a minor moving violation, an investigation by the trooper is not limited to the scope of that violation. The trooper has the authority to investigate additional violations as evidence of potential violations is observed. The trooper must have a reasonable suspicion based on specific articulable facts that a law has been violated or is being violated.1 The determination of reasonable suspicion to further detain the defendant must be based on the totality of the circumstances surrounding the trooper's observations.2

         In short, the detention may not be based on an unparticularized suspicion or hunch.3 The difference between a hunch and a reasonable suspicion is the number of surrounding facts and circumstances.4 State v. Evans identifies factors that may be included in determining reasonable suspicion of operating a motor vehicle while under the influence of alcohol:

These factors include, but are not limited to (1) the time and date of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there

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is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect's eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect's ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect's person or breath; (8) the intensity of that odor, as described by the officer (" very strong," " strong," " moderate," " slight," etc.); (9) the suspect's demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given. All of these factors, together with the officer's previous experience in dealing with drunken drivers, may be taken into...

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