[Cite as State v. Rudder, 2023-Ohio-993.]

COURT OF APPEALS

FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. John W. Wise, P.J.

 Plaintiff-Appellant : Hon. Craig R. Baldwin, J.

: Hon. Andrew J. King, J.

-vs- :

:

TATIANA RUDDER : Case No. 2022CA00027

:

 Defendant-Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, 

Case No. TRC 22 00408

JUDGMENT: Reversed

DATE OF JUDGMENT: March 27, 2023

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JAMES E. YOUNG DARREN L. MEADE

136 West Main Street 2602 Oakstone Drive

P.O. Box 1008 Suite 1

Lancaster, OH 43130 Columbus, OH 43231
Fairfield County, Case No. 2022CA00027 2

King, J.

{¶ 1} Plaintiff-Appellant the state of Ohio appeals the December 7, 2022 

judgment of the Municipal Court of Fairfield County granting Defendant-Appellee Tatiana 

Rudder's motion to suppress.

Facts and Procedural History

{¶ 2} The transcript of the suppression hearing and the body camera video of 

Ohio State Highway Patrol Trooper M.P. Herdman provide the following facts. 

{¶ 3} On January 16, 2022 at 11:54 p.m., Trooper Herdman was dispatched to 

the scene of a possible disabled vehicle near U.S. 33 and Diley Road in Fairfield County 

Ohio. On that evening, it was snowing heavily. The roads were snow covered and the 

area was under a level 2 snow emergency. 

{¶ 4} Upon arrival, Trooper Herdman located the vehicle, a silver 2015 Hyundai,

near the off ramp, and positioned at the bottom of a steep embankment approximately 

100 feet off of the roadway. It appeared to Herdman that the vehicle had slid off the road.

As Herdman approached the Hyundai, Rudder exited the vehicle from the back seat. 

Herdman noticed Rudder was having difficulty with balance and was using the car to 

steady herself.

{¶ 5} Once Herdman approached Rudder, he noticed a strong odor of alcohol, 

and the fact that her eyes were red and glassy with contracted pupils. Her speech was 

slow and slurred. 

{¶ 6} Rudder was unable to produce a driver's license, but the Hyundai was 

registered in her name. At the point of Herdman's contact, Rudder was on the phone with 

her boyfriend Adonis whom she had called to come and pick her up. Each time Herdman 
Fairfield County, Case No. 2022CA00027 3

asked Rudder how much she had to drink she replied that Adonis had nothing to drink. 

She then handed Herdman the phone. Herdman directed Adonis to their location.

{¶ 7} Herdman assisted Rudder up to the road near his cruiser as she was having 

difficulty walking and asked for his assistance. Asked again how much she had to drink,

Rudder said she may have had a glass of wine. She apologized repeatedly. By this time, 

Adonis had arrived on the scene and remained close by.

{¶ 8} Due to the weather and road conditions, Herdman did not ask Rudder to 

perform the one-leg stand or walk and turn test. He did however, administer the horizontal 

gaze nystagmus test. Rudder had difficulty following Herdman's directions during the test

and Herdman noted 6 of 6 clues of intoxication. Rudder was therefore placed under arrest.

{¶ 9} Herdman advised Adonis that he would be transporting Rudder to the Diley 

Ridge Medical Center for processing and then she would be released to him. He directed 

Adonis to meet them at the hospital. Instead of going directly to his own vehicle, Adonis 

went first to Rudder's vehicle, opened the driver's side door and reached inside. Herdman 

asked Adonis to step away from the car, advising he would handle the matter of the 

vehicle. 

{¶ 10} After Rudder was secured in Herdman's cruiser, Herdman went to Rudder's 

car to turn off the hazard lights and retrieve the keys. Finding no keys he returned to his 

cruiser and asked Rudder where her keys were. She stated they were in her purse, in the 

car. Herdman again searched the car and the ground around the car but found neither a 

purse, nor Rudder's keys.
Fairfield County, Case No. 2022CA00027 4

{¶ 11} Upon arrival at the hospital, Herdman asked Adonis if he had taken 

Rudder's keys and purse. Adonis denied the same. Rudder later refused a urine screen

and was thereafter released from custody. 

{¶ 12} Rudder was subsequently charged with operating a vehicle under the 

influence. On February 22, 2022, Rudder filed a motion to suppress advancing four 

arguments. Relevant to this appeal, Rudder argued Herdman lacked probable cause to 

arrest her for operating a vehicle while impaired. 

{¶ 13} A hearing was held on the motion on June 3, 2022. Trooper Herdman was 

the sole witness. 

{¶ 14} On July 21, 2022, the trial court issued its judgment entry granting Rudder's 

motion to suppress. The court noted Trooper Herdman never observed Rudder in the 

front seat or behind the wheel of the vehicle. It further noted the vehicle was not running 

when Herdman arrived, there was no testimony that anyone had seen the vehicle in 

motion, no indication how long it had been at the side of the road, or that the vehicle was 

operable. For these reasons, the trial court found Trooper Herdman lacked probable 

cause to arrest Rudder for operating under the influence. 

{¶ 15} The state filed an appeal and the matter is now before this court for 

consideration. The state raises one assignment of error as follows:

I

{¶ 16} "THE TRIAL COURT ERRED IN FINDING TROOPER HERDMAN 

LACKED PROBABLE CAUSE TO ARREST FOR AN OVI UNDER R.C. 4511.19 AND 

THEREFORE ERRED IN GRANTING APPELLEE'S MOTION TO SUPPRESS."
Fairfield County, Case No. 2022CA00027 5

{¶ 17} In its sole assignment of error, the state argues the trial court erred in finding 

Trooper Herdman lacked probable cause to arrest Rudder. We agree.

{¶ 18} We review the question of whether an officer has reasonable suspicion or 

probable cause to make a warrantless arrest de novo. Ornelas v. United States, 517 U.S. 

690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). However, "a reviewing court should 

take care both to review findings of historical fact only for clear error and to give due 

weight to inferences drawn from those facts by resident judges and local law enforcement 

officers." Id. 

{¶ 19} "The standard for determining whether the police have probable cause to 

arrest an individual for OVI is whether, at the moment of arrest, the police had sufficient 

information, derived from a reasonable trustworthy source of facts and circumstances to 

cause a prudent person to believe that the suspect was driving under the influence." State 

v. Swope, 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849, ¶ 22.

{¶ 20} In State v. Anthony, 5th Dist. Stark No. 2015CA00226, 2016-Ohio-2905, an 

appeal from a conviction for OVI, the appellant challenged the manifest weight and 

sufficiency of the evidence against him, specifically the "operation" element of OVI. This 

court noted:

"Effective January 1, 2004, the term 'operate' as used in R.C. 

Chapter 4511, 'means to cause or have caused movement of a 

vehicle * * *.’ R.C. 4511.01(HHH). This modification narrows the 

definition of 'operate,' which effectively eliminates 'drunk radio 

listeners, or people who use their cars as a four-wheeled, heated 
Fairfield County, Case No. 2022CA00027 6

hotel room' from being convicted of OVI. Gill, 70 Ohio St.3d at 157-

158, 637 N.E.2d 897 (Pfeifer, J., dissenting)." State v. Barnard, 5th 

Dist. Stark No. 2010-CA-00082, 2010-Ohio-5345, 2010 WL 

4347572, ¶ 25, quoting State v. Schultz, 8th Dist. Cuyahoga No. 

90412, 2008-Ohio-4448, 2008 WL 4078447, ¶ 19. (Footnotes 

omitted).

"Notably, and in relation to movement of a vehicle, R.C. 

4511.01(HHH) employs both the present tense ('to cause') and, 

alternatively, the past tense (to 'have caused'), in defining the 

conduct to which that section applies. The past tense indicates action 

already completed. For purposes of R.C. 4511.19, to 'have caused'

movement of a vehicle is a fact that may be proved by circumstantial 

evidence, which inherently possesses the same probative value as 

direct evidence. State v. Jenks (1991), 61 Ohio St.3d 259, 574 

N.E.2d 492." State v. Halpin, 2nd Dist. Clark App. No. 07CA78, 2008-

Ohio-4136, 2008 WL 3583349, ¶ 24; Barnard, 2010-Ohio-5345, 

2010 WL 4347572, ¶ 29.

As our brethren in the Eight District has recognized,

Today, the difference between an OVI and a physical control 

violation, besides the penalties, is that an OVI requires actual 

movement of the vehicle, whereas a physical control violation does 

not. After January 1, 2004, if there is no evidence that the person 
Fairfield County, Case No. 2022CA00027 7

moved or caused the vehicle to move, that person cannot be 

convicted of OVI, but may be convicted of being in physical control 

of a vehicle while under the influence. Still, a person who is found 

passed out in his vehicle on the side of the highway may be convicted 

of an OVI because a jury could infer that the vehicle was moved to 

that location. However, if a person decides to "sleep it off" in the 

parking lot of the bar where the person drank, the person could be 

convicted only of a physical control violation, unless there is evidence 

of movement.

State v. Schultz, 8th Dist. Cuyahoga No. 90412, 2008-Ohio-4448, 

2008 WL 4078447, ¶ 25.

{¶ 21} Here, the issue is probable cause to arrest, not sufficiency of the evidence 

following a trial. We have reviewed the transcript of the suppression hearing and viewed 

the entirety of Herdman's body camera video and find there is evidence that Rudder had 

recently caused the vehicle to move. The body camera video shows Rudder's car, not in 

the parking lot of a bar where she may have been "sleeping it off," "a drunk radio listener" 

utilizing her car as "a four-wheeled heated hotel room," but rather alone at the side of an 

interstate highway in a snow storm. Other than emergency vehicles, there is not even any 

passing traffic. The hazard lights of Rudder's car were on and there was evidence 

indicating she had recently either driven off the road or slid off the road. Further, she was 

on the telephone attempting to direct her boyfriend to her location to help her. She 

demonstrated signs of impairment. While the trial court partially relied upon the fact that 
Fairfield County, Case No. 2022CA00027 8

no keys were found, Rudder's boyfriend was in Rudder's Hyundai before he left for the 

hospital making the issue of the absence or presence of the keys much less clear. Finally,

although Rudder was seen exiting the car from the back seat, as previously noted, there 

was evidence of recent movement of the car.

{¶ 22} Given the forgoing, we find Trooper Herdman was presented with sufficient 

information to cause him to believe Rudder was driving under the influence providing him 

with probable cause to arrest. 

{¶ 23} The sole assignment of error is sustained. 

{¶ 24} The judgment of the Fairfield County Municipal Court is reversed.

By King, J., 

Wise, P.J. and

Baldwin, J. concur.

AJK/rw