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7th District remands OVI case over field sobriety tests
TRACEY BLAIR
Legal News Reporter
Published: July 31, 2014
East Liverpool police improperly administered field sobriety tests in a Columbiana County OVI case, the 7th District Court of Appeals ruled recently.
Mark R. Smith II, 28, of New Cumberland, W. Va., was arrested Oct. 25, 2012 after officials arrived at a fight on Gardendale Street.
According to case summary:
Smith was at the scene on his still-warm motorcycle with engine and lights off, parked in the middle of the street. He was arrested for carrying a concealed weapon after Smith revealed his loaded .25-caliber pistol when asked for identification.
An officer said Smith had slurred speech, smelled of alcohol, and admitted drinking. Smith failed three field sobriety tests ¬– the Horizontal Gaze Nystagmus, the walk-and-turn and the one-leg stand -- at the police station.
Smith, who refused to take a blood test, was also charged with OVI.
Smith filed a motion to suppress all evidence from the traffic stop and investigation in 2012, claiming police had no basis for the stop because it was based only on an anonymous tip.
Smith pleaded guilty to OVI, his third in six years, on Jan. 9, 2013. He was sentenced to 180 days in jail with 105 days suspended, a five-year driver’s license suspension, three years of intense probation, a $1,050 fine and court costs.
On appeal, he also argued there was no probable cause to arrest him for OVI and that the sobriety tests were not up to current National Highway Traffic Safety Administration standards.
In a 3-0 opinion, appellate judges agreed the results should have been suppressed because an officer failed to perform an assessment of possible medical conditions that might compromise the results.
“(The officer) testified that he just assumed Appellant would have told him of such a condition,” 7th District Judge Cheryl L. Waite wrote in a 3-0 opinion.
However, the panel noted that although the tests themselves are inadmissible, the officer can testify as to his observations.
“The record contains (the officer’s) testimony that he observed Appellant slurring his speech and rambling on about matters that did not make sense,” Judge Waite stated. “Appellant also admitted to consuming alcohol, and the officer noticed a strong odor of alcohol and glassy eyes. He noted that Appellant could not walk a straight line even while using his arms for balance, could not put one foot in front of the other while walking or touch his heel to his toe, and swayed while trying to balance himself while holding his foot off the ground. Appellant was also found sitting on his motorcycle parked in the middle of a city street. The totality of the circumstances indicates that there was probable cause to arrest Appellant for OVI.”
The appellate court overruled the motion to suppress to reflect that the field sobriety tests cannot be used as evidence. Smith’s conviction, sentence and plea were vacated and the case was remanded to the trial court.
Seventh District judges Gene Donofrio and Mary DeGenaro concurred.
The case is cited State v. Smith, Case No. 2014-Ohio-2933.