State v. McCaig
| Decision Date | 30 June 1988 |
| Docket Number | No. WD-87-75,WD-87-75 |
| Citation | 554 N.E.2d 925,51 Ohio App.3d 94 |
| Parties | The STATE of Ohio, Appellee, v. McCAIG, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
A trial court must apply the totality-of-the-circumstances test to determine if there were reasonable grounds to believe that a person had been operating a motor vehicle while under the influence of alcohol.
Albert L. Potter II, Bowling Green, for appellee.
Jill E. Schurr, County Public Defender, for appellant.
This appeal results from appellant's conviction in the Bowling Green Municipal Court following a plea of no contest to the charge of driving under the influence of alcohol. Appellant, Dale J. McCaig, was involved in a minor motor vehicle accident on September 4, 1987 in which he was not at fault. A state trooper was called to the scene of the accident and proceeded to investigate. Following his conversations with appellant during the course of the investigation, the trooper determined that in his judgment, based upon observation, testing and the admissions of appellant, that appellant had been driving his automobile while under the influence of alcohol. He issued a citation accordingly, the legal process commenced and the conviction has resulted in this appeal. Appellant suggests as his single assignment of error, the following proposition:
"The trial court erred, as a matter of law, in denying appellant's motion to suppress since there is insufficient evidence to support a finding that there was probable cause to arrest the appellant for operating a motor vehicle while under the influence of alcohol."
There is little question about the status of the law which is involved in this appeal and both parties agree that Ohio courts have consistently applied the totality-of-the-circumstances test to determine if there were reasonable grounds to believe that a person had been operating a motor vehicle while under the influence of alcohol. Atwell v. State (1973), 35 Ohio App.2d 221, 64 O.O.2d 342, 301 N.E.2d 709. This court has applied that same test to numerous cases and it is always necessary to consider the facts of each case to determine whether or not probable cause existed.
The highway patrolman testified to his training and experience in this case and then most specifically testified to the following pertinent observations made at the scene: (1) The officer testified that he asked appellant if he had been consuming any alcoholic beverages prior to the accident and appellant stated that he had had three beers prior to the accident. (2) The officer testified further that he conducted the gaze nystagmus test to assist him in determining whether or not appellant had been consuming alcoholic beverages. The results of that test, given by a qualified officer, led the officer to the conclusion that appellant was under the influence of alcoholic beverages. (3) The officer further testified that appellant had an odor of alcoholic beverage on his presence. (4) He specifically testified that the speech of appellant was very, very sloppy. The officer further testified that appellant's walking was not real steady at the time but he was compelled to discount this factor as appellant indicated he had a bad nerve in his left ear and that did not allow him to do any field tests.
Thus, there were four specific factors which this officer observed, any one of which standing alone may not have been sufficient to arouse his suspicion, but, taken in their totality and in the opinion of this court provided the necessary probable cause to arrest appellant for operating a motor vehicle while under the influence of alcohol. Therefore, appellant's sole assignment of error is found not well-taken.
Accordingly, finding that appellant was not prevented from having a fair hearing, we affirm the judgment of the trial court and order this case remanded for execution of sentence.
Judgment affirmed.
The threshold question presented in the defendant's motion to suppress was whether or not, under the totality of the circumstances existing at the time the defendant was arrested, the trooper had probable cause to arrest defendant and thereafter to charge him with a violation of R.C. 4511.19.
After a hearing on defendant-appellant's motion to suppress, the trial court overruled the motion; the defendant-appellant then entered a plea of no contest with a consent to a finding of guilty. The trial court then found defendant guilty of driving under the influence of alcohol and sentence was imposed. It is from this finding and sentence that defendant appeals and sets forth his sole assignment of error as follows:
"The trial court erred, as a matter of law, in denying appellant's motion to suppress since there is insufficient evidence to support a finding that there was probable cause to arrest the appellant for operating a motor vehicle while under the influence of alcohol."
From the testimony set forth in the transcript of the record, I am of the opinion that (bearing in mind that the state has the burden of proof) the state, through the testimony of its only witness, the arresting officer, did not present sufficient evidence to support a finding of probable cause for arrest, even under the concept of what federal and Ohio law refer to as the totality of circumstances. Inasmuch as my respected colleagues have made only very generalized references to the record, in support of my position I believe a thorough review of the facts at the time of the arrest and testimony of the arresting officer at the hearing to suppress is necessary.
The situs of the arrest was in the village of Grand Rapids, Wood County, Ohio. The main street of this small rural village is three short city blocks in its entire length. A court may take judicial notice of this fact. The incident occurred on September 4, 1987. Defendant drove his car down the main street of the village. The record reflects no testimony of excessive speed or erratic driving. As defendant was proceeding lawfully, a pickup truck suddenly backed out of an alley directly into the path of defendant. A minor vehicle collision occurred. The arresting officer, a state highway patrolman, was summoned. The accident happened so quickly the defendant did not have a chance to stop or turn to avoid the collision. Nor did he have a chance to blow his horn. After investigating the accident, the officer cited the other driver for improper backing and then turned his attention to defendant, who admitted he had three beers at a nearby tavern. The trooper began to test the defendant for...
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