State v. Turney

• Decision Date: 12 June 2020
• Docket Number: No. 28364,28364
• Citation: 157 N.E.3d 809,2020 Ohio 4148
• Parties: STATE of Ohio, Plaintiff-Appellee v. Maria TURNEY, Defendant-Appellant
• Court: Ohio Court of Appeals

157 N.E.3d 809

2020 Ohio 4148

STATE of Ohio, Plaintiff-Appellee

v.Maria TURNEY, Defendant-Appellant

No. 28364

Court of Appeals of Ohio, Second District, Montgomery County.

Amending Opinion Rendered June 12, 2020

Rendered on August 20, 2020

STEPHANIE COOK, Atty. Reg. No. 0067101, City of Dayton Prosecutor's Office, 335 West Third Street, Room 372, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee.

BLAISE KATTER, 3240 Henderson Road, Suite B, Columbus, Ohio 43220, Attorney for Defendant-Appellant.

AMENDED OPINION

HALL, J.

{¶ 1} Defendant, Maria Turney, appeals from her conviction in the Dayton Municipal Court for operating a motor vehicle under the influence of alcohol (OVI) in violation of R.C. 4511.19(A)(1)(d). Turney contends that the trial court erred in four ways: by overruling her motion to suppress evidence obtained as a result of her detainment and subsequent arrest following a traffic stop, by excluding some of the trial testimony from her expert witness, by omitting a jury instruction that she requested, and by limiting witness testimony and her closing arguments. We conclude the trial court did not err in regard to these assignments and therefore affirm Turney's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Around 2:30 a.m. on December 16, 2017, University of Dayton Police Officer Tiffany Oldham saw Turney make a wide right-hand turn from Brown Street completely into an opposite-direction lane on Stewart Street before promptly moving into the correct lane. Officer Oldham initiated a traffic stop, and Turney pulled over after making a right-hand turn onto Rubicon Street. Oldham approached Turney's vehicle, and while speaking to Turney, Oldham could smell alcohol coming from Turney's vehicle and on Turney's breath. Officer Oldham also thought that Turney's speech was slightly slurred and that her eyes looked glassy. Meanwhile, Officer Joseph Wilhelm, also a university police officer, arrived to assist Oldham. Officer Wilhelm walked along the passenger side of Turney's vehicle and shone his flashlight inside. On the front passenger floorboard, he saw a bottle containing an alcoholic beverage.

{¶ 3} The officers went back to Oldham's cruiser, and Oldham told Wilhelm her observations and concerns about Turney's ability to drive. Oldham asked Wilhelm to speak to Turney himself to see if he noticed any sign of intoxication. Officer Wilhelm returned to Turney's vehicle and asked her to step out. Once she was out, Wilhelm too thought that Turney's eyes looked red and glassy, and when she spoke, he detected a strong odor of alcohol on her breath. Turney admitted that she had consumed at least one alcoholic beverage.

{¶ 4} Based on his and Oldham's observations, Officer Wilhelm suspected that Turney may be intoxicated, so he asked her to submit to field sobriety tests, and she agreed. He administered several tests, including horizontal gaze nystagmus,¹ the walk-and-turn² and one-leg-stand³ tests. Officer Wilhelm noticed that Turney failed to follow his instructions for the walk-and-turn test. She began the test too soon, took the wrong number of steps, turned incorrectly, and did not walk heal to toe. During the one-leg-stand test, Officer Wilhelm watched as Turney swayed and had to put her foot down three times, which led him to cut the test short. Based on the field sobriety tests and their other observations, the officers arrested Turney for operating a motor vehicle under the influence of alcohol. Upon inventorying the vehicle after the arrest, the officers observed the closed bottle containing an alcoholic beverage on the front passenger floorboard, a "growler," described as a refillable souvenir drinking cup from a bar or liquor establishment, in the rear driver's side seat, and a stray cork.

{¶ 5} The officers asked Turney if she would submit to a breath test, and she agreed. Because the University of Dayton Police Department did not have a breath machine operator available to administer the test, they took Turney to the Dayton Police Department. There, Dayton Officer Jonathan Seiter administered the breath test. It registered a breath alcohol concentration (BAC) level of 0.133, well over the 0.08 legal limit for driving in Ohio. Turney was charged with operating a motor vehicle under the influence of alcohol as an impaired driving offense⁴ and as a per se offense under R.C. 4511.19(A)(1)(d) (BAC level of 0.08 - 0.169) and with a marked-lane violation under R.C. 4511.33.

{¶ 6} Turney filed a motion to suppress the results of the field sobriety tests and the breath test. After a hearing, the trial court suppressed the results of the field sobriety tests but not of the breath test. The court concluded that the state had failed to lay the required foundation for admitting the field sobriety tests because they were not shown to have been conducted in compliance with National Highway Traffic Safety Administration (NHTSA) regulations, but it rejected Turney's arguments that the officers did not have reasonable articulable suspicion to detain her for the purpose of administering the tests and that they did not have probable cause to arrest her for an OVI offense.

{¶ 7} In March 2019, the per se OVI was tried to a jury, and the jury found Turney guilty. The trial court also found her guilty of the marked-lane violation. She was sentenced to 180 days in jail with 177 days suspended, with a three-day weekend intervention program in lieu of incarceration, and her license was suspended for one year.

{¶ 8} Turney appeals.

II. ANALYSIS

{¶ 9} Turney assigns four errors to the trial court.

A. Motion to suppress

{¶ 10} The first assignment of error alleges:

THE TRIAL COURT ERRED BY OVERRULING THE MOTION TO SUPPRESS.

{¶ 11} Turney contends that, in overruling parts of her motion to suppress, the trial court erroneously concluded that the officers had a reasonable, articulable suspicion that she was intoxicated to justify detaining her for field sobriety testing. Turney also contends that they did not have probable cause to arrest her for operating a motor vehicle while under the influence of alcohol. Turney argues that because her detainment and subsequent arrest were unlawful, the result of the breath test should have been suppressed.

{¶ 12} We apply the following standard of review: "In reviewing the ruling on a motion to suppress, an appellate court must accept the trial court's supported findings of fact as true. The court must then determine whether the facts satisfy the applicable legal standard; this is done without deference to the conclusion of the trial court." (Citations omitted.) State v. Brown , 2d Dist. Greene No. 2011-CA-52, 2012-Ohio-3099, 2012 WL 2628720, ¶ 12.

Reasonable, articulable suspicion of intoxication

{¶ 13} Although Turney does not contest the lawfulness of the initial traffic stop, she argues that she was unlawfully detained because the officers lacked the requisite reasonable, articulable suspicion that she was driving under the influence to justify prolonging the traffic stop for the purpose of field sobriety testing.

{¶ 14} To justify further detention to conduct field sobriety testing after a lawful stop, "the officer must have a reasonable, articulable suspicion that a person is driving under the influence[.]" Id. at ¶ 13. To determine whether there was reasonable, articulable suspicion, the court must evaluate the totality of the circumstances, considering them " ‘through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.’ " State v. Gladman , 2d Dist. Clark No. 2013-CA-99, 2014-Ohio-2554, 2014 WL 2700660, ¶ 14, quoting State v. Heard , 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, 2003 WL 860692, ¶ 14.

{¶ 15} "Many observations can satisfy this reasonable, articulable suspicion, including the odor of an alcoholic beverage emanating from the vehicle, glassy bloodshot eyes, * * * and slow or slurred speech." (Citation omitted.) Brown at ¶ 13. Here, at the suppression hearing, Officer Oldham testified that she saw Turney commit a traffic violation, even if only momentarily, by driving entirely in a lane designated for the opposite direction. Oldham said that she detected the odor of alcohol coming from Turney's vehicle and from Turney herself, and Oldham noticed that Turney's speech was slightly slurred and that her eyes looked glassy. Officer Wilhelm also thought that Turney's eyes looked red and glassy and detected a strong odor of alcohol on her breath. Based on these observations, the officers decided to expand the scope of the traffic stop to include the field sobriety testing.

{¶ 16} In ruling on Turney's motion to suppress, the trial court implicitly found credible the officers' testimony about their observations. Given the totality of the circumstances testified to by the officers, we conclude that they had a reasonable, articulable suspicion that Turney was driving under the influence to justify detaining her for field sobriety testing.

Probable cause to arrest

{¶ 17} Turney next argues that her arrest for operating a vehicle under the influence of alcohol was an unlawful seizure because the officers lacked probable cause to make the arrest.⁵

{¶ 18} Probable cause in the context of an arrest for operating a vehicle under the influence exists if the totality of the circumstances is sufficient to make a prudent person believe that the suspect was driving under the influence. See State v. Homan , 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000) ; Brown , 2d Dist. Greene No. 2011-CA-52, 2012-Ohio-3099, at ¶ 25.

{¶ 19} Here, in addition to Officer Oldham's initial observations, Officer Wilhelm testified that after Turney had stepped out of her vehicle, he too noticed her eyes and the odor of alcohol on her breath, which he said was strong:

A: * * * [A]t that point in time I observed that her eyes were red and glassy and I detected the strong odor of an alcoholic beverage em[a]nating from her when she spoke.

Q: Ok and you were able to

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