[Cite as State v. Ruberg, 2013-Ohio-4144.] 

 

Criminal Appeal From: Hamilton County Municipal Court 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: September 25, 2013 

John Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Jacqueline 

Pham, Assistant City Prosecutor, for Plaintiff-Appellant, 

The Law Office of Steven R. Adams, Steven R. Adams and Marguerite Slagle, for 

Defendant-Appellee. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellant, 

 vs. 

ASHLEY RUBERG, 

 Defendant-Appellee. 

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APPEAL NOS. C-120619 

 C-120620 

TRIAL NO. 11TRC-36309 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2

HILDEBRANDT, Presiding Judge.

{¶1} Plaintiff-appellant state of Ohio appeals the judgment of the 

Hamilton County Municipal Court granting a motion to suppress in a prosecution for 

operating a vehicle with a prohibited breath-alcohol concentration and driving while 

impaired. 

The Stop and the Field-Sobriety Tests 

{¶2} Early one morning, at approximately 1:30 a.m., Ohio State Trooper 

Joel Westhoven clocked defendant-appellee Ashley Ruberg driving 72 m.p.h. in a 45 

m.p.h. zone. Westhoven stopped Ruberg’s car and informed her that she was 

speeding. Ruberg produced her license without difficulty. Although her speech was 

clear and coherent, Westhoven testified that her eyes were “a little red” and that 

there was a smell of alcohol coming from the car and her person. Accordingly, he 

decided to administer field-sobriety tests. 

{¶3} Ruberg exited from her car without hesitating or stumbling. She was 

cooperative and told Westhoven that she had consumed a drink at around 4:00 p.m. 

{¶4} Westhoven first administered the horizontal-gaze-nystagmus (HGN) 

test. He testified that Ruberg had exhibited six “clues” of impairment, but he 

conceded that he had improperly administered the test because he had failed to turn 

Ruberg completely away from traffic and from his cruiser’s overhead lights. 

{¶5} Next, Westhoven administered the walk-and-turn test. He testified 

that Ruberg had exhibited one clue of impairment because she had not placed the 

heel of her foot directly on the toe of the other foot. On cross-examination, though, 

Westhoven admitted that guidelines for the test allow for one-half inch between 

steps. Westhoven could not recall the amount of space between Ruberg’s steps that 
OHIO FIRST DISTRICT COURT OF APPEALS

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had led him to conclude that she had not performed the test successfully. But he did 

note that Ruberg had exhibited a second clue when she had stepped off of the line 

twice during the test. 

{¶6} Finally, Westhoven administered the one-leg-stand test. He stated 

that Ruberg had performed that test successfully. 

{¶7} Westhoven placed Ruberg under arrest. A breathalyzer test revealed 

that Ruberg had a concentration of .116 grams of alcohol per 210 liters of her breath. 

The Motion to Suppress 

{¶8} Ruberg filed a motion to suppress, contending, among other things, 

that Westhoven had not possessed probable cause to arrest her. The trial court 

granted that motion, and the state appealed. 

{¶9} In a single assignment of error, the state argues that the trial court 

erred in granting Ruberg’s motion to suppress. 

{¶10} When considering a motion to suppress, the trial court acts as the trier 

of fact and is in the best position to evaluate the credibility of witnesses and to weigh 

the evidence. State v. Sanders, 1st Dist. Hamilton No. C-030846, 2004-Ohio-6842, ¶ 

6, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. 

Although we must accept the trial court’s findings of fact if they are supported by some 

competent, credible evidence, we conduct a de novo review of whether the facts meet 

the applicable legal standard. Id. 

{¶11} The standard for determining whether an officer had probable cause to 

arrest a suspect for operating a vehicle under the influence of alcohol is whether “at the 

moment of the arrest, the police had sufficient information, derived from a reasonably 

trustworthy source of facts and circumstances, sufficient to cause a prudent person to 

believe that the suspect was driving under the influence.” Cincinnati v. Bryant, 1st 
OHIO FIRST DISTRICT COURT OF APPEALS

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Dist. Hamilton No. C-090546, 2010-Ohio-4474, ¶ 15, quoting State v. Homan, 89 Ohio 

St.3d 421, 427, 732 N.E.2d 952 (2000). This is an objective, not a subjective, standard. 

Bryant at ¶ 15, citing State v. Deters, 128 Ohio App.3d 329, 333, 714 N.E.2d 972 (1st 

Dist.1998). 

{¶12} This court addressed the granting of a motion to suppress under 

similar circumstances in State v. Phoenix, 192 Ohio App.3d 127, 2010-Ohio-6009, 

948 N.E.2d 468 (1st Dist.). In Phoenix, we held that the following facts did not give 

rise to probable cause to arrest: (1) the defendant was driving without his headlights 

illuminated; (2) he had a slight odor of alcohol on his breath; (3) his speech was not 

slurred; (4) his eyes were glassy and bloodshot; (5) he did not have difficulty 

producing his license, exiting from his vehicle, or standing while outside the vehicle; 

(6) he admitted having consumed alcohol prior to driving; and (7) he demonstrated 

only one clue of impairment in each of the two properly administered field-sobriety 

tests. Id. at ¶ 8. 

{¶13} The facts of the case at bar are analogous to those in Phoenix. In this 

case, there was no evidence of erratic driving, although Ruberg was driving well over 

the speed limit. Her speech was clear and coherent, and she exhibited no difficulty in 

obeying Westhoven’s commands to produce her license and exit from her car. 

Westhoven testified that there was an odor of alcohol emanating from Ruberg’s 

person, but he did not characterize the odor as strong. And even though Ruberg had 

admitted to consuming alcohol, she exhibited at most only two clues of impairment 

on the field-sobriety tests that had been properly administered. 

{¶14} Under these circumstances, the trial court did not err in granting the 

motion to suppress, and we overrule the assignment of error. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Conclusion 

{¶15} We affirm the judgment of the trial court. 

Judgment affirmed. 

DEWINE, J., concurs. 

DINKELACKER, J., dissents. 

DINKELACKER, J., dissenting. 

{¶16} I agree that this case is similar to the situation that this court faced in 

State v. Phoenix, 192 Ohio App.3d 127, 2010-Ohio-4474, 948 N.E.2d 468 (1st Dist). 

And, as I did in Phoenix, I must dissent. 

{¶17} Trooper Westhoven, a five-year veteran of the Ohio State Highway 

Patrol with nearly 100 OVI arrests to his credit, stopped Ruberg’s car after he 

determined that she was traveling nearly 30 m.p.h. over the speed limit. Ruberg 

admitted to drinking alcohol that day and, in spite of the fact that she claimed that 

the consumption had occurred hours before, she still smelled of alcohol and her eyes 

were red. Westhoven, who had been trained to detect alcohol consumption and 

determine impairment, oversaw Ruberg’s performance of three field-sobriety tests. 

While she did not fail the tests, there were “indicators” that Westhoven observed that 

led him to conclude that Ruberg’s ability to operate her motor vehicle was impaired. 

{¶18} The measurement of probable cause is taken from the vantage point 

of a prudent, reasonable, and cautious police officer, on the scene at the time of the 

arrest, guided by his experience and training. United States v. Davis 458 F.2d 819, 

821 (C.A.D.C.1972). Under the facts in this case, Trooper Westhoven’s observations, 

as understood through the lens of his training and experience, led him to the 

reasonable conclusion that Ruberg’s ability to operate a motor vehicle had been 

impaired by her consumption of alcohol. The trial court was incorrect when it held 

otherwise. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶19} I am concerned about the message that decisions like this send to law 

enforcement. In essence, we are telling Trooper Westhoven that, in spite of the fact that 

Ruberg had been driving at an excessive rate of speed, had admitted to him that she had 

consumed alcohol, was exhibiting the physiological effects of having consumed alcohol, 

still smelled of alcohol, and was giving some indications that her motor skills were 

adversely affected by her alcohol consumption, he should have simply written her a 

ticket and let her drive off into the night. I find such an outcome problematic. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.