State v. Patel
| Decision Date | 15 July 2013 |
| Docket Number | Case No. 2012CA00190 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. VIKRAMKUMAR PATEL Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
For Plaintiff-Appellee:
JOSEPH MARTUCCIO
CANTON CITY LAW DIRECTOR
ANTHONY RICH
For Defendant-Appellant:
JEFFRY V. SERRA
THE FERRUCCIO LAW FIRM, L.P.A.
{¶1} Appellant Vikramkumar Patel appeals from the October 1, 2012 judgment entry of the Canton Municipal Court overruling his motion to suppress. Appellee is the state of Ohio.
{¶2} This case arose around midnight on October 20, 2012 when Ptl. Buzzard of the North Canton City Police Department observed appellant's vehicle at the intersection of South Main Street and Everhard Road S.W., Hoover Township, North Canton, Stark County. Buzzard noticed the license plate of the gray Pontiac Grand-Am had a blue date sticker on the license plate, indicating it expired in 2011. Buzzard checked the vehicle registration, verified the plate actually expired on January 1, 2012, and began to follow the vehicle.
{¶3} Buzzard initiated a traffic stop in a parking lot and made contact with the driver, appellant. He advised appellant of the reason for the stop and noticed the strong odor of alcohol emanating from appellant, who also had bloodshot eyes. Buzzard asked appellant whether he'd had anything to drink, and appellant replied that he'd gone to a party after work and had a few drinks. Buzzard told appellant he stopped him for an expired plate and appellant repeated several times that he had a "small license" or a "little license." Buzzard did not understand what appellant meant until he stepped back from the vehicle and noticed a (valid) temporary tag laying flat on the vehicle's back speaker ledge.
{¶4} Upon cross-examination, Buzzard acknowledged the vehicle would be in compliance if the temporary tag had been properly displayed in the license plate holder;however, it was not. Buzzard explained appellant displayed expired plates, and the temporary tag was not visible on the back ledge.
{¶5} Once backup arrived on the scene, Buzzard asked appellant to submit to standardized field sobriety tests (SFSTs). On the horizontal gaze nystagmus (HGN) test, appellant exhibited three clues of impairment in each eye: lack of smooth pursuit, onset of nystagmus at 45 degrees, and clear and distinct nystagmus at maximum deviation. On the walk-and-turn test, appellant exhibited a number of clues of impairment: he was unable to maintain the proper stance while listening to instructions, failed to touch heel to toe, raised his arm for balance, and stepped off the line while performing the test. Finally, during the one-leg stand, appellant exhibited several clues of impairment: he failed to look at his toe, told Buzzard he'd be unable to count by thousands, and put his foot down, stopping the test and starting again.
{¶6} Buzzard administered a portable breath test to verify whether the source of appellant's apparent impairment was alcohol. The portable breath test result was ".115." Buzzard arrested appellant for O.V.I.
{¶7} After being placed under arrest, appellant stated he wanted to tell the truth and that he'd had more than three drinks that night. Buzzard transported appellant to the North Canton Police Department where another officer administered a breath test on the department's Intoxilyzer 8000. Appellant's breath test result was ".113."
{¶8} The North Canton Police Department's Intoxilyzer 8000, Instrument No. 80-004401, was certified by the Ohio Department of Health (O.D.H.) on July 10, 2011.Appellant's breath test was performed on August 20, 2012. Intoxilyzer 8000 No. 80-004401 was certified again on August 28, 2012. Sgt. Mizner of the North Canton Police Department testified that certification by O.D.H. was to be performed once every calendar year; O.D.H. would usually certify the machine when personnel were present at the police department to do other tasks, such as re-certify officers. Sgt. Mizner asked O.D.H. personnel to clarify what was meant by certification within a "calendar year," and was told that certification anytime within the "federal calendar year" would suffice. In this case, therefore, the machine was certified in calendar year 2011 (July 10, 2011) and calendar year 2012 (August 28, 2012) and the fact that the certifications were over 13 months apart did not negatively affect the certifications.
{¶9} The trial court overruled appellant's motion to suppress. Appellant entered pleas of no contest to one count of O.V.I. and one count of expired tag, and was sentenced to a jail term of 180 days with 177 suspended, with the remaining three days to be served in a Driver Intervention Program; 25 hours of community service; a 180-day suspension of his operator's license; and a fine and court costs.
{¶10} Appellant now appeals from the October 1, 2012 judgment entry of the trial court overruling his motion to suppress.
{¶11} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶12}
{¶13}
{¶14}
{¶15}
I., II., III.
{¶16} Appellant's first three assignments of error address whether the arresting officer had reasonable and articulable suspicion to stop appellant's vehicle and require him to perform standardized field sobriety tests, and whether probable cause existed for appellant's arrest for O.V.I., and will be addressed together.
{¶17} Appellate review of a trial court's decision to deny a motion to suppress involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996). A reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must independently determine as a matter of law, without deference to the trial court's conclusion, whether the trial court's decision meets the applicable legal standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other grounds.
{¶18} There are three methods of challenging a trial court's ruling on a motion to suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In reviewing a challenge of this nature, an appellate court must determine whether the trial court's findings of fact are against the manifest weight of the evidence. See, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See, Williams, supra. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issues raised in a motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶19} In this case, appellant argues the trial court incorrectly determined the arresting officer did have reasonable and articulable suspicion to stop his vehicle and to require him to perform SFSTs, and incorrectly determined probable cause existed to arrest appellant for O.V.I. We agree with the trial court's conclusions for the following reasons.
{¶20} The Fourth Amendment to the United States Constitution prohibits warrantless searches and seizures, rendering them per se unreasonable unless an exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). An investigative stop, or Terry stop, is a common exception to the Fourth Amendment warrant requirement. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 889 (1968). Because the "balance between the public interest and the individual's right to personal security" tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity "may be afoot." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In Terry, the Supreme Court held that a police officer may...
To continue reading
Request your trial