State v. Keith B. Hawes, 96-LW-0518

• Decision Date: 26 March 1996
• Docket Number: 96-LW-0518,95 CA 1681
• Parties: STATE OF OHIO, Plaintiff-Appellee v. KEITH B. HAWES, Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. KEITH B. HAWES, Defendant-Appellant

No. 95 CA 1681.

96-LW-0518 (4th)

Court of Appeals of Ohio, Fourth District Athens

March 26, 1996

COUNSEL FOR APPELLANT: Thomas S. Hodson, Eslocker, Hodson & Oremus Co., L.P.A., 16 W. State Street, Athens, Ohio 45701.

COUNSEL FOR APPELLEE: George P. McCarthy, Athens City Prosecutor, Law Director's Office, 8 E. Washington Street, Athens, Ohio 45701.

DECISION

ABELE P.J.

This is an appeal from a judgment of conviction and sentence entered by the Athens County Municipal Court finding Keith B Hawes, defendant below and appellant herein, guilty of driving with a breath alcohol concentration above the statutory limit in violation of R.C. 4511.19(A)(3).

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FINDING THAT THERE WAS PROBABLE CAUSE FOR THE LAW ENFORCEMENT OFFICER TO STOP THE DEFENDANT'S VEHICLE FOR OPERATING WHILE UNDER THE INFLUENCE OF ALCOHOL."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FINDING THAT THE TESTING OFFICER OBSERVED THE DEFENDANT FOR TWENTY UNINTERRUPTED MINUTES BEFORE ADMINISTERING THE BREATH TEST."

On February 19, 1995, at approximately 12:45 a.m., Ohio State Highway Patrol Sgt. E. J. Waldron observed appellant driving westbound on U.S. Route 50 near Athens. Sgt. Waldron visually estimated the speed of appellant's vehicle and believed it to be in excess of the posted 55 mph speed limit. Sgt Waldron also noticed that appellant failed to dim his bright lights when approaching the state patrol cruiser. Appellant still did not dim his bright lights when Sgt. Waldron momentarily flickered his bright lights toward appellant. Using radar, Sgt. Waldron clocked appellant's vehicle at 66 mph. Based on these observations, Sgt. Waldron stopped the vehicle.

Sgt. Waldron had appellant exit his vehicle in order to perform a protective pat-down search. Sgt. Waldron also asked appellant to perform some physical coordination tests. After appellant completed the tests, Sgt. Waldron arrested appellant and transported him to the Ohio State Highway Patrol Post for a breath test. Appellant sat in the front passenger's seat during the ride to the patrol post.

At the patrol post, Sgt. Waldron read various forms to appellant in preparation for the breath test. The reading began at approximately 1:19 a.m. and lasted until the time of the test, which was recorded by the BAC verifier as 1:37 a.m. Dispatcher Sandra Collins witnessed the reading and the test. Appellant registered .179 on the BAC Datamaster.

Sgt. Waldron issued citations to appellant for driving while under the influence of alcohol in violation of R.C. 4511.19(A)(1) and driving with a concentration of alcohol in his breath above the specified statutory limit in violation of R.C. 4511.19(A)(3).

Prior to trial, appellant filed a motion to suppress evidence. Appellant's motion asserted that: (1) Sgt. Waldron did not have the requisite reasonable, articulable suspicion of criminal activity justifying the stop of the vehicle; and (2) appellant's breath test was improperly conducted in that the testing officer failed to observe the test subject for twenty minutes prior to conducting the test.

On April 11, 1995, the trial court held a hearing on the motion and, after considering the testimony and evidence presented by the parties, overruled both branches of appellant's motion. Subsequently, appellant entered a no contest plea to the R.C. 4511.19(A)(3) specified limit violation. The trial court accepted appellant's plea and found him guilty as charged. The prosecution dismissed the remaining charges. Appellant filed a timely notice of appeal.

I

In his first assignment of error, appellant asserts that the trial court erred by overruling his motion to suppress evidence. Appellant contends that the arresting officer did not have a proper constitutional basis for the initial stop of appellant's vehicle. Appellant makes two arguments in support of his assignment of error. Appellant first asserts that because he did not weave or drive left of center, and because his speed had slowed to an acceptable 53 mph by the time he passed Sgt. Waldron, Sgt. Waldron did not have reasonable suspicion to stop his car. Appellant also asserts that even if Sgt. Waldron did have reasonable suspicion to stop appellant, the stop was constitutionally invalid because it was pretextual. Appellant asserts that Sgt. Waldron suspected that appellant was driving under the influence of alcohol, but did not have reasonable suspicion to stop appellant for that offense. Therefore, according to appellant, Sgt. Waldron used the other traffic violations as a pretext to stop appellant's car and look for other evidence of DUI.

Initially, we note that in a hearing on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate the credibility of the witnesses. State v. Venham (1994), 96 Ohio App.3d 649, 645 N.E.2d 831; State v. Lewis (1992), 78 Ohio App.3d 518, 605 N.E.2d 451; State v. Clay (1973), 34 Ohio St.2d 250, 298 N.E.2d 137; State v. Warren (Aug. 12, 1991), Hocking App. No. 90CA7, unreported. Thus, it is the trial court's function to determine the credibility of witnesses giving testimony at a suppression hearing. A reviewing court should not disturb the trial court's findings on the issue of credibility. State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Tutt (Apr. 14, 1986), Warren App. No. CA85-09-056, unreported. Accordingly, in our review, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusions, whether they satisfy the appropriate legal standards. See Venham, supra; State v. Sheluman (May 23,, 1991), Ross App. No. 1632, unreported; State v. Simmons (Aug. 3, 1990), Washington App. No. 89CA18, unreported.

The Fourth and Fourteenth Amendments to the United States Constitution as well as Section 14, Article I of the Ohio Constitution, prohibit any governmental search or seizure, including a brief investigative stop, unless supported by an objective justification. Terry v. Ohio (1968), 392 U.S. 1; State v. Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271; Venham, supra. The investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to stop any individual if the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal behavior has occurred or is imminent. Terry, supra; State v. Andrews, supra. To justify an investigative stop, a police officer must be able to articulate specific facts which, taken together with rational inferences from those facts, would warrant a person of reasonable caution in the belief that the person stopped has committed or is committing a crime. Terry, supra at 19-21.

In State v. Simmons (Aug. 30, 1990), Washington App. No. 89 CA 18, unreported, we wrote:

"Law enforcement encounters with suspected drunk drivers involve two stages: (1) a stop and (2) a subsequent arrest. State v. Finch (1985), 24 Ohio App.3d 38, 492 N.E.2d 1254. Pursuant to Terry, supra, an officer may briefly detain an individual awhile he investigates the suspicious behavior which gave rise to the stop. A detention conducted pursuant to Terry must be based upon a reasonable and articulable suspicion of criminal activity. United States v. Sharpe (1985), 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605. The articulable and reasonable suspicion must exist in the officer's mind at the time of the stop and cannot be based on facts obtained after the initial stop. State v. Freeman (1980), 84 Ohio St.2d 291, 294, 414 N.E.2d 1044. See, also, Delaware v. Prouse (1979), 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391. State v. Brandenburg (1987), 41 Ohio App.3d 109, 534 N.E.2d 906; State v. Heinrichs (1988), 46 Ohio App.3d 63, 545 N.E.2d 1304."

Thus, if specific and articulable facts exist that indicate that a criminal violation has occurred, or is occurring, a vehicle may be stopped and the driver detained for further investigation. The propriety of an investigative stop must be determined in light of the totality of the circumstances. State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d 1044; State v. Chatton, supra; State v. Meadows (Dec. 31, 1991), Hocking App. No. 91 CA 6, unreported.

In appellant's first argument, he asserts that because he did not weave or drive left of center and because he had reduced his speed by the time he passed Sgt. Waldron's cruiser, Sgt. Waldron did not have reasonable suspicion to stop appellant. Appellant cites numerous cases for the proposition that a stop based on a suspicion of driving under the influence must have a basis in "aberrant" driving. See Statev. Drogi, (1994), 96 Ohio

App.3d 466, 645 N.E.2d 153; City of Hamilton v. Lawson (1994), 94 Ohio App.3d 462, 640 N.E.2d 1206; City of Mason v. Loveless (1993), 87 Ohio App.3d 264, 622 N.E.2d 6; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141; State v. Gullett (1992), 78 Ohio App.3d 138, 604 N.E.2d 176; State v. Giesler (August 30, 1985), Warren App. No. CA85-02-003, unreported. Appellant argues that a minor traffic violation will not, under all circumstances, justify an officer in stopping the violator's car to investigate whether the driver is under the influence of alcohol. Appellant concludes that under the facts of the instant case, the traffic violations observed by Sgt. Waldron did not justify a stop.

We agree with appellant that an officer who stops a driver based on his suspicion that the driver is under the...