[Cite as State v. Null , 2020-Ohio-3222.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 8-19-50

v. KATHRYN B. NULL, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Bellefontaine Municipal Court Trial Court No. 19 TRC 00873 Judgment Affirmed Date of Decision: June 8, 2020

APPEARANCES: 

### Natalie J. Bahan for Appellant 

### Crystal K. Welsh for AppelleeCase No. 8-19-50

-2- SHAW, P.J. {¶1} Defendant-appellant, Kathryn B. Null (“Null”), brings this appe al from the November 4, 2019 judgment of the Bellefontaine Municipal Co urt finding her guilty of OVI in violation of R.C. 4511.19(A)(1)(a) after Null entered a plea of no contest to the charge. On appeal, Null argues that the trial c ourt erred by denying her suppression motion. Background {¶2} On February 22, 2019, at approximately 6:19 p.m., Null was stop ped by Trooper Tyler Easter for traveling 69 mph in a 55 mph zone. Null pulled over immediately and Trooper Easter approached her vehicle. Trooper Easter asked Null for her license, indicated why he had stopped her, and he asked if Null was aware that she was speeding. Null responded that she was daydreaming

. {¶3} Trooper Easter smelled a “slight” odor of an alcoholic beverage emanating from inside the vehicle, and he noticed that Null’s e yes were glassy. Null initially denied consuming any alcohol whatsoever. Trooper Eas ter asked Null for her registration and proof of insurance, and he thought that it took her longer than usual to provide them. {¶4} Trooper Easter returned Null’s insurance card and then asked Nu ll to

take off her seatbelt and talk to him outside the vehicle. Nul l got out of her vehicle, which Trooper Easter also thought took longer than usual in his experience, andCase No. 8-19-50

-3- Trooper Easter informed Null that he wanted to remove her from the “odors” that he was smelling inside the vehicle to make sure she had not bee n drinking and driving. Null again denied drinking any alcohol and said she d id not even drink socially. {¶5} Following some further conversation outside the vehicle, Troope r Easter requested that Null sit in the backseat of his cruiser w hile he checked her license and issued her a citation for speeding. Null was in th e backseat of Trooper Easter’s cruiser for a little over six minutes. During that ti me Trooper Easter engaged her in conversation. When he went to let Null out of h is backseat, he told Null that he still smelled what he thought was the odor of an a lcoholic beverage coming from her person specifically. He told Null that she was being dishonest regarding her drinking. At that time Null admitted to drinking one beer around three p.m., though she stated she had brushed her teeth and used mout hwash. Trooper Easter then stated that it was not illegal to drive after havin g an alcoholic beverage, but it was illegal to drive while impaired. Trooper Easter sta ted that he wanted to check Null’s eyes before letting her go to look for signs of im pairment and she said, “okay.” {¶6} Trooper Easter administered the HGN test to Null and he detecte d four of six clues of impairment. He noted that Null’s eyes were gla ssy, that Null had difficulty following instructions and that she struggled to foc us on the stimulus. HeCase No. 8-19-50

-4- also noted that Null swayed back and forth during the test. Tr ooper Easter told Null that because of her performance on the HGN test he wanted to ad minister additional field sobriety tests. {¶7} Trooper Easter then administered the Walk and Turn test wherein Null exhibited five clues of impairment, which included: moving her feet to keep her balance while listening to instructions, starting before instru ctions were completed, stopping while walking to steady herself, stepping off the line while walking (over three times), and walking the incorrect number of steps. Final ly, Null performed the “One Leg Stand” test. Trooper Easter observed Null put her foot down five times in fourteen seconds and the test was stopped for Null’s s afety. {¶8} Trooper Easter then placed Null under arrest for operating a ve hicle impaired. After being transported to the jail, Null took a bre ath test and her BAC registered at .097. {¶9} Ultimately Null was charged with Speeding in violation of R.C. 4511.21(D)(1), OVI in violation of R.C. 4511.19(A)(1)(a), and, in the alternative, OVI in violation of R.C. 4511.19(A)(1)(d). Null entered pleas of not guilty to the charges. {¶10} On July 8, 2019, Null filed a suppression motion arguing, inter alia , that Trooper Easter lacked probable cause for the stop and arre st. She later supplemented this motion arguing that Trooper Easter lacked a s ufficient basis toCase No. 8-19-50

-5- request that Null perform field sobriety tests. Null also file d a motion to dismiss for

the same reasons. {¶11} On August 30, 2019, a hearing was held on the suppression motio n and the motion to dismiss. At the hearing, the issues were narrowed to whether Trooper Easter had a sufficient basis to request that Null perf orm field sobriety tests. Null indicated that she was not contesting the legality of the traffic stop. Trooper Easter provided testimony at the hearing and video of the traff ic stop was introduced

into evidence. {¶12} On October 9, 2019, the trial court filed an entry denying Null ’s suppression motion and her motion to dismiss. Following the de nial of her motions, Null entered into a negotiated plea agreement wherein she agree d to plead no contest to OVI in violation of R.C. 4511.19(A)(1)(a), and in exchange t he State agreed to dismiss the remaining charges. Her plea was accepted, she was found guilty as charged, and the matter proceeded to sentencing. {¶13} Null was sentenced to serve thirty days in jail with twenty-sev en suspended. The three remaining days in jail were also suspende d on the condition that Null attend a certified driver’s intervention program appr oved by the trial court. A judgment entry memorializing Null’s sentence was filed Novemb er 4, 2019. It is from this judgment that Null appeals, asserting the following a ssignments of error

for our review.Case No. 8-19-50

-6- Assignment of Error No. 1 The trial court’s finding that “the odor of alcohol intensified while in [the] closed cruiser” is against the manifest weight of the evidence. Assignment of Error No. 2The trial court abused its discretion in denying the defendantappellant’s motion to suppress, because the trooper lacked reasonable articulable suspicion to request the performance of field sobriety tests based on the totality of the circumstances

. {¶14} We elect to address the assignments of error out of the order i n which they were raised. Second Assignment of Error {¶15} In Null’s second assignment of error she contends that the tria l court erred by overruling her suppression motion. Specifically, she contends that Trooper Easter lacked reasonable articulable suspicion to request the p erformance of field sobriety tests based on the totality of the circumstances.

Standard of Review {¶16} “Appellate review of a decision on a motion to suppress present s a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003– Ohio–5372, ¶ 8. At a suppression hearing, the trial court assu mes the role of trier of fact and, as such, is in the best position to evaluate the e vidence and the credibility

of witnesses. Id . citing State v. Mills , 62 Ohio St.3d 357, 366 (1992). When reviewing a motion to suppress, “an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible e vidence.” Burnside atCase No. 8-19-50

-7- ¶ 8 citing State v. Fanning , 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of law, however, our standard of review is de novo, and we must independently determine whether the facts satisfy the applicabl e legal standard. Id

. citing State v. McNamara , 124 Ohio App.3d 706 (4th Dist.1997). Analysis {¶17} Null was initially stopped by Trooper Easter for traveling 69 m ph in a 55 mph zone. She does not contest the legality of being stoppe d by Trooper Easter. She focuses instead on Trooper Easter’s authority to further de tain her by asking her to step out of the vehicle and, eventually, to perform field so briety tests. {¶18} Once a driver has been lawfully stopped, an officer may not adm inister field sobriety tests unless the invasion of privacy is separate ly justified by a reasonable suspicion based upon articulable facts that the moto rist is impaired. See,

e.g ., State v. Schriml , 3d Dist. Marion No. 9-12-32, 2013-Ohio-2845, ¶ 25; Parma Hts. v. Dedejczyk , 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, ¶ 29, citing State v. Evans , 127 Ohio App.3d 56, 62 (11th Dist.1998). Importantly, reasonable suspicion does not require an officer to observe and relate overt signs of

intoxication. Cleveland v. Martin , 8th Dist. No. 105420, 2018-Ohio-740, ¶ 14. Rather, “[a] court will analyze the reasonableness of the reque st based on the totality of the circumstances, viewed through the eyes of a reasonable a nd prudent police officer on the scene who must react to events as they unfold.” Cleveland v. Maxwell ,Case No. 8-19-50

-8- 8th Dist. Cuyahoga No. 104964, 2017-Ohio-4442, ¶ 20, citing State v. Dye , 11th Dist. Portage No. 2001-P-0140, 2002-Ohio-7158, ¶ 18; Cleveland v. Martin , 8th Dist. Cuyahoga No. 105420, 2018-Ohio-740, ¶ 14; State v. Cromes , 3d Dist. Shelby No. 17-06-07, 2006-Ohio-6924, ¶ 38, citing United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744 (2002). {¶19} Circumstances from which an officer may derive a reasonable, articulable suspicion that the detained driver was operating th e vehicle while under the influence include, but are not limited to: (1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the sto p (e.g., whether near establishments selling alcohol); (3) any in dicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot , glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect’s person or breath; (8) the inten sity of that odor, as described by the officer (“very strong,” “stro ng,” “moderate,” “slight,” etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the sus pect after the stop that might indicate a lack of coordination (drop ping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drink s had, and the amount of time in which they were consumed, if given

. State v. Schriml , 3d Dist. Marion No. 9-12-32, 2013-Ohio-2845, ¶ 26, citing State

v. Evans, 127 Ohio App .3d 56, 63, fn. 2 (11th Dist.1998). We do not vi ew anyCase No. 8-19-50

-9- single factor in isolation. State v. Macklin , 5th Dist. Fairfield No. 17-CA-39, 2018- Ohio-2975, ¶ 28. {¶20} Here, after approaching Null’s vehicle, Trooper Easter detected the odor of an alcoholic beverage and he noticed Null’s eyes were g lassy. 1 While he did not notice any slurred speech, he felt that, based on his e xperience, Null took longer than usual to produce her proof of insurance. He then a sked Null to get out

of the vehicle in order to determine whether the odor of alcoho l was emanating from inside the vehicle or from Null’s person specifically. Outside of the vehicle, Trooper Easter asked Null again if she had consumed alcohol bec ause he was smelling a “slight odor” of an alcoholic beverage from her pers on and her eyes were glassy. (Tr. at 16). Null again denied drinking any alcohol w hatsoever. At that time Trooper Easter asked her to sit in the backseat of his pat rol car while he checked her license and issued her a citation for speeding. {¶21} Trooper Easter and Null engaged in small talk while Trooper Eas ter filled out the citation for speeding. After a little over six minutes Trooper Easter walked around his patrol car to let Null out of his vehicle. A t that time he “could smell [the odor of alcohol] and it was a little stronger than w hat it was[.]” (Tr. at 25). Trooper Easter inquired again whether Null had consumed a ny alcohol and she admitted to having one beer around three p.m., or over three ho urs prior. Trooper

1 Null pointed out on cross-examination at the suppression heari ng that Trooper Easter did not put this in his report.Case No. 8-19-50

-10- Easter informed Null that it was not illegal to consume alcohol and drive; rather it was illegal to drive while intoxicated. Trooper Easter indicat ed he wanted to check Null’s eyes through the HGN test before letting her go and Null agreed. {¶22} On appeal, Null argues that Trooper Easter lacked reasonable suspicion to request that Null perform field sobriety tests. I n support, Null cites numerous, fact-specific cases wherein Ohio Appellate Courts hav e determined that an officer lacked reasonable suspicion to request the performan ce of field sobriety

tests. See, e.g., State v. Wood , 9th Dist. Wayne No. 18AP0011, 2019-Ohio-3985 (where video entered into evidence contradicted officer’s testi mony, and, inter alia , officer did not notice an odor of alcohol while defendant was s eated in his vehicle, no reasonable suspicion existed); State v. Newsome , 11th Dist. Ashtabula No. 2012- A-0019, 2012-Ohio-5826, ¶ 21 (where defendant’s admission to co nsuming one large beer was the only factor officer relied upon, this admiss ion alone was insufficient to establish reasonable suspicion of intoxication to initiate field sobriety tests); State v. Reed , 7th Dist. Belmont No. 05BE31, 2006-Ohio-7075 (where officer did not witness a moving violation or erratic driving, did not witness slurred speech, defendant was cooperative, officer noted a “slight” smell of al cohol, defendant had red glassy eyes and admitted to drinking two beers, officer lac ked reasonable suspicion to initiate field sobriety tests).Case No. 8-19-50

-11- {¶23} In this case, Null contends that Trooper Easter detected only t he slight odor of an alcoholic beverage and this alone was not enough to initiate field sobriety tests. First, “[t]here is no requirement under Ohio law that a police officer specify the perceived strength of the odor in support of a reasonable a rticulable suspicion of driving under the influence of alcohol. It is but one facto r for consideration under the totality of the circumstances.” City of Cleveland v. Martin , 8th Dist. Cuyahoga No. 105420, 2018-Ohio-740, ¶ 16, citing Evans . Second, while Trooper Easter indicated the odor of an alcoholic beverage was “slight,” he di d note that he detected

the odor once Null was outside the vehicle and when Null was be ing removed from the backseat of his cruiser. This would indicate that regardle ss of intensity, the odor was persistent and attached to Null’s person rather than emanat ing from the vehicle.

See Martin at ¶ 17. {¶24} Third, Trooper Easter noted multiple additional factors leading to his suspicion that Null might be intoxicated in this instance such as Null’s glassy eyes. Trooper Easter also felt that Null took longer than usual to pr oduce her proof of insurance and to get out of her car. While these issues alone may be given very little weight, they are all factors to consider in the totality of the circumstances. {¶25} Furthermore, and very importantly here, Trooper Easter detected erratic driving in Null significantly exceeding the speed limit . Null was traveling 69 mph in a 55 mph zone, which is indicative of erratic driving . This was not aCase No. 8-19-50

-12- situation where Null was stopped for an equipment violation or a violation that some

courts have described as “de minimus.” State v. Spillers , Darke App. No. 1504, 2000 WL 299550 (March 24, 2000). Unlike an equipment violation , speeding is an indication of erratic driving, and it is a factor to consider i n the totality of the circumstances when evaluating potential intoxication. State v. Carter , 5th Dist. Stark No. 2013CA00036, 2013-Ohio-5133, ¶ 14. {¶26} Moreover, Null eventually admitted to consuming an alcoholic beverage despite denying it multiple times beforehand. At one point she even went so far as to state that she did not even drink alcohol socially

. {¶27} The record establishes that there were numerous factors that, w hen analyzed under the totality of the circumstances, support the t rial court’s determination. Cases regarding reasonable suspicion to initiat e field sobriety tests, including those Null cited, are inherently fact-specific and no single factor can be viewed in complete isolation. Null emphasizes Trooper Easter’s use of the word “slight” in describing the odor of alcohol as though it should be the one controlling factor here, but there were other factors leading to Trooper Ea ster’s request. In fact, Trooper Easter did not even initially request that Null perform a full battery of field sobriety tests; rather, he wanted to check Null’s eyes to insur e she was not intoxicated before letting her go. 2 Only after Null exhibited several clues of

2 Notably, Null agreed to perform the HGN test.Case No. 8-19-50

-13- impairment in the HGN test, in addition to everything else he d etected, did Trooper Easter ask Null to perform further field sobriety tests. {¶28} Based on the totality of the circumstances we cannot find that the trial court erred in determining that Trooper Easter had a reasonable suspicion to initiate field sobriety tests in this case. Therefore, Null’s second as signment of error is

overruled. First Assignment of Error {¶29} In Null’s first assignment of error she argues that a factual f inding made by the trial court in denying her suppression motion was n ot supported by the evidence. Specifically, Null takes issue with the following de termination. Based on the foregoing, the Court finds that the officer had sufficient basis to request the defendant to submit to field so briety tests when, after taking the defendant to his cruiser for a few minutes, she changed her story about drinking and the odor of alcohol intensified while in his closed cruiser. (Emphasis added.) (Doc. Nos. 186-187). Null argues that the tr ial court’s finding that “the odor of alcohol intensified while in [the] closed cru iser” was not supported by the testimony. {¶30} In support of her argument, Null indicates that throughout Troo per Easter’s testimony he characterized the odor of alcohol he dete cted as “slight.” She also emphasizes that there was a divider in Trooper Easter’s pa trol car that prevented him from smelling alcohol while he was in the front seat. Null thus argues that theCase No. 8-19-50

-14- trial court’s statement that the odor of alcohol “intensified” is wholly unsupported by the record. {¶31} Contrary to Null’s interpretation of the record, Trooper Easter specifically testified as follows. When I exited my vehicle after I had finished typing and I open ed up the rear passenger door right next to where the defendant wa s, I could smell [the odor of alcohol] and it was a little stronge r than it was, so at that point, obviously, I asked her [about drinkin g] again. She admitted to having one beer, and we did field sobri ety tests. (Tr. at 25). {¶32} Trooper Easter thus specifically testified that after being in the back of his vehicle the smell of alcohol from Null was “stronger than i t was.” ( Id .) Merriam-Webster’s Dictionary actually defines “intensify” in on e manner as to “grow stronger or more acute.” Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/intensified?src=sear ch-dict-hed, (accessed May 26, 2020). Based on this plain and ordinary defi nition of “intensify,”

the trial court’s use of the word “intensified” is a fair chara cterization since Trooper

Easter’s testified that the odor was a “little stronger ” after being in his cruiser.

Therefore we cannot find that the trial court erred or mischara cterized the evidence and Null’s first assignment of error is overruled.Case No. 8-19-50

-15- Conclusion {¶33} For the foregoing reasons Null’s assignments of error are overr uled and the judgment of the Bellefontaine Municipal Court is affirm ed. Judgment Affirmed PRESTON and WILLAMOWSKI, J.J., concur. /jlr