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9th District: Akron OVI evidence should not have been suppressed
TRACEY BLAIR
Legal News Reporter
Published: June 24, 2020
An Akron Municipal Court judge erred in granting a motion to suppress in an OVI case, the 9th District Court of Appeals ruled recently.
Brionna D. Johnson was stopped by an Ohio Highway Patrol trooper on the evening of April 4, 2019 after she was observed traveling with her high-beam head lights on and failed to dim the lights as she passed the patrol car.
Johnson had been travelling with a friend in the passenger seat and a child in the back seat.
Upon approaching the vehicle, the officers detected odors of alcohol and burnt marijuana. Trooper Jason Fowler asked Johnson how much alcohol she had to drink and how much marijuana she had smoked; she denied drinking or smoking.
Based on field sobriety tests, Johnson was deemed to be impaired. She was charged with child endangerment, OVI , failure to dim, driving under suspension and failure to wear a seat belt.
She pleaded not guilty to all charges and filed a motion to suppress evidence on multiple grounds.
After a hearing, the trial court found Fowler lacked probable cause to arrest her and suppressed all evidence related to her arrest.
On appeal, the state argued the facts prove the trooper had probable cause to arrest Johnson.
The trooper performed the walk and turn, the horizontal gaze nystagmus test and the one-leg stand on Johnson.
“Trooper Fowler has been trained to perform these NHTSA approved tests,” the trial court said. “Trooper Fowler found clues on all three tests; however, he did not conclude that [Ms. Johnson] was an impaired driver based on these tests alone,” Schafer wrote. “Trooper Fowler administered two additional tests to [Ms. Johnson], which included the Romberg’s test and an alphabet test. These tests are not NHTSA approved, but they are used to detect impairment from marijuana use.
“[Ms. Johnson] passed the Romberg’s test. Trooper Fowler testified that [Ms. Johnson] did not perform well on the alphabet test, but could not articulate what she did wrong. Furthermore, after a review of the dashboard camera video, the [trial c]ourt cannot determine that [Ms. Johnson] performed poorly on this test. Trooper Fowler did not testify to any other observation that showed [Ms. Johnson] to be impaired.”
The trial court further determined that Fowler “did not have sufficient indication of impairment based on the trooper’s testimony and [Johnson]’s performance on the tests administered and, based on the totality of the circumstances, did not have probable cause to arrest [Ms. Johnson].”
However, the appellate panel ‘s review of the record showed the trial court’s factual analysis is flawed in several ways.
First, the trial court’s description of the sequence of events is misleading because it implies Fowler administered the three tests approved by the National Highway Traffic Safety Administration to detect impairment from alcohol, observed clues but did not determine impairment, and then administered two additional tests to detect impairment from marijuana, 9th District Judge Julie Schafer said in her opinion.
“Per Trooper Fowler’s testimony at the hearing, he had Ms. Johnson perform the NHTSA-approved HGN test first and observed four out of six possible clues for impairment,” Schafer wrote. “Next, Trooper Fowler administered a lack of convergence test and observed signs of impairment from marijuana. Third, Trooper Fowler administered the Modified Romberg test and observed that Ms. Johnson was within the margin of error for that test. Fourth, Trooper Fowler had Ms. Johnson perform the NHTSA-approved walk-and-turn test and testified that he observed four out of eight clues for impairment. The fifth test Trooper Fowler administered to Ms. Johnson was the NHTSA-approved one-leg stand, and he testified that he observed three out of four clues for impairment on that test. Finally, Trooper Fowler asked Ms. Johnson to recite the alphabet from letters ‘C’ through ‘X’. Thus, the trial court’s rendition of the field sobriety tests is not supported by competent credible evidence.”
The case was remanded to the trial court to adequately state its findings and to resolve any discrepancies in its assessment of the evidence.
Appellate judges Lynne Callahan and Donna J. Carr concurred. The case is cited State v. Johnson, 2020-Ohio-3097.