[Cite as State v. Coyle , 2021-Ohio-3023.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 20 CAC 10 0043 : AMANDA COYLE : : : Defendant-Appellan t : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal Court, Case No. 19 TRC 4025

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: August 31, 2021

For Plaintiff-Appellant: For Defendant-Appellant:

ERIC BURKETT BLAISE KATTER Assistant Prosecuting Attorne y TIM HUEY Delaware City Prosecutor’s Office Huey Defense Firm 70 North Union St. 3240 Henderson Road, Suite B Delaware, OH 43015 Columbus , OH 43220[Cite as State v. Coyle , 2021-Ohio-3023.]

Delaney, J. {¶1} Defendant-Appellant Amanda Coyle appeals from the judgment of the Delaware Municipal Court, which denied her motion to suppress t he evidence that led to her conviction. Plaintiff-Appellee is the State of Ohio.

FACTS AND PROCEDURAL HISTORY The Stop {¶2} On Sunday, March 24, 2019, at 4:49 a.m., Ohio State Highwa y Patrol Trooper Darius Patterson was on routine patrol on Interstate 71 in Delaware County. As Trooper Patterson was monitoring northbound traffic, he observe d a black Honda travelling at a high speed. Trooper Patterson activated the Lid ar speed measuring device in his cruiser, and it calculated the Honda’s speed was 83 mph in a 70-mph zone. Based on this speed, Trooper Patterson activated his lights and initi ated a traffic stop of the

Honda. {¶3} The driver of the Honda pulled to the side of the highway without incident. Trooper Patterson approached the driver’s side of the Honda and spoke with the driver, identified as Defendant-Appellant Amanda Coyle. Coyle was the s ole occupant of the Honda. Trooper Patterson asked Coyle where she was coming from, and she stated she was coming from Cincinnati to go to Huron County. As he was spe aking with Coyle, Trooper Patterson detected a strong odor of an alcoholic bevera ge coming from the vehicle and Coyle’s eyes appeared to be glassy and bloodshot. T rooper Patterson asked Coyle where she was coming from before she left Cincinnati. Tro oper Patterson recalled that “she said she had gone out. She had been drinking, I belie ve, Jack and Coke prior when she was out at one of the bars down in Cincinnati.” (T. 20 ).[Cite as State v. Coyle , 2021-Ohio-3023.] {¶4} While Trooper Patterson spoke with Coyle, he did not obser ve that Coyle slurred her speech. She retrieved her identification and regist ration without incident while speaking with him. {¶5} Trooper Patterson asked Coyle to exit the vehicle so that he could administer field sobriety tests. Coyle complied. She did not re quire assistance getting out

of the vehicle. {¶6} Trooper Patterson first administered the Horizontal Gaze N ystagmus (HGN) test. Upon concluding the test, Trooper Patterson observed six out of six potential clues. Coyle’s eyes remained glassy and bloodshot, and he continued to detect the strong odor of an alcoholic beverage coming from Coyle. Trooper Patterson a sked Coyle to perform the Walk and Turn (WAT) test. Coyle exhibited four out of eight possible clues: Coyle moved her feet for balance during the instruction phase; she di d not touch heel-to-toe; she stepped off the line; and, she incorrectly turned. She was next asked to perform the One Leg Stand (OLS) test. Coyle exhibited one clue during the t est because Coyle put her foot down. Trooper Patterson finally administered a non-sta ndardized test – the alphabet test. He asked Coyle to recite the alphabet from the l etter “D” to “N.” Coyle performed the test as instructed. {¶7} After the field sobriety tests, Trooper Patterson arrested Coyle for OVIImpaired. He handcuffed Coyle and placed her in the back of his cruiser. She was transported to the Delaware Ohio State Highway Patrol Post on U .S. Route 23. She was read the BMV 2255 form and informed of the consequences of subm itting to or refusing a breath alcohol (BAC) test. Coyle agreed to perform a BAC test . Trooper Patterson

administered the breath tests at 5:40 a.m. and 5:43 a.m. The fi rst test indicated Coyle[Cite as State v. Coyle , 2021-Ohio-3023.] had a concentration of 0.118 grams by weight of alcohol per 210 liters of deep lung breath. The second test indicated Coyle had a concentration of 0.119 gr ams by weight of alcohol per 210 liters of deep lung breath. Coyle was charged with a se cond OVI for a per se

breath test violation. Motion to Suppress {¶8} Counsel for Coyle filed a motion to suppress, arguing ther e was no reasonable suspicion to detain her to convert the traffic offen se into an OVI investigation, and that there was no probable cause to arrest her for OVI. {¶9} On June 26, 2019, the trial court held a hearing on the mo tion to suppress. As part of Trooper Patterson’s testimony, the State presented t he dashcam video from the stop. At the time of the stop, Trooper Patterson’s belt mic rophone was on the charger so there was no audio of the officer’s conversation with Coyle during the stop. {¶10} On December 6, 2019, the trial court denied the motion t o suppress. Jury Trial {¶11} The matter proceeded to a jury trial on September 17, 202 0. The jury found Coyle guilty of OVI-Impaired and OVI-Per Se (Low Breath). The o ffenses merged for sentencing and the State elected to proceed on the OVI-Impaired charge. The trial court sentenced Coyle to a three-day DIP class, fine and costs, licen se suspension and a period of monitored probation. {¶12} Coyle filed a notice of appeal on October 16, 2020.[Cite as State v. Coyle , 2021-Ohio-3023.]

ASSIGNMENT OF ERROR {¶13} Coyle raises one Assignments of Error: {¶14} “THE TRIAL COURT ERRED BY OVERRULING THE MOTION TO

SUPPRESS.”

ANALYSIS {¶15} Coyle argues in her sole Assignment of Error that the tri al court erred when it denied her motion to suppress. We disagree. {¶16} There are three methods of challenging a trial court's ru ling on a motion to suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In reviewing a challenge of this nature, an appellate court must d etermine whether the trial court's findings of fact are against the manifest weight of the evidence. See State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein , 73 Ohio App.3d 486, 597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fa ct. In that case, an appellate court can reverse the trial court for committing an error of la w. See Williams, supra

. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issues raised in a motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the tr ial court's conclusion, whether the facts meet the appropriate legal standard in any gi ven case. State v. Curry , 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). {¶17} In this case, Coyle argues this Court should review the t rial court’s judgment to deny the motion to suppress to hold that either the trial co urt failed to apply the[Cite as State v. Coyle , 2021-Ohio-3023.]

appropriate test or correct law and/or the trial court incorrec tly decided the ultimate or final issues raised in her motion to suppress {¶18} When ruling on a motion to suppress, the trial court assu mes the role of trier of fact and is in the best position to resolve questions of fac t and to evaluate the credibility

of witnesses. See State v. Dunlap , 73 Ohio St.3d 308, 314, 1995-Ohio-243, 652 N.E.2d 988; State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). {¶19} In her appeal, Coyle argues that Trooper Patterson lacked reasonable suspicion to conduct field sobriety tests. In reviewing whether field sobriety testing was proper, we apply a “totality of the circumstances” approach. See, e.g., State v. Tidwell, Slip Opinion No. 2021-Ohio-2072, ¶ 40; State v. Locker , 5th Dist. Stark App. No. 2015CA00050, 2015-Ohio-4953, ¶ 36, citing State v. Freeman , 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980). {¶20} “Requiring a driver to submit to a field sobriety test co nstitutes a seizure within the meaning of the Fourth Amendment. Courts have general ly held that the intrusion on the driver's liberty resulting from a field sobrie ty test is minor, and the officer therefore need only have reasonable suspicion that the driver i s under the influence of alcohol in order to conduct a field sobriety test.” State v. Malkin , 5th Dist. Licking No. 2019 CA 0100, 2020-Ohio-3059, 2020 WL 2611679, ¶ 28 quoting State v. Bright , 5th Dist. Guernsey No. 2009-CA-28, 2010-Ohio-1111, ¶ 17, citing State v. Knox , 2nd Dist. Greene No. 2005-CA-74, 2006-Ohio-3039. An officer may not request a mo torist to perform field sobriety tests unless the request is independently justified by reasonable suspicion based upon articulable facts that the motorist is intoxicated. State v. Evans , 127 Ohio App.3d[Cite as State v. Coyle , 2021-Ohio-3023.] 56, 62, 711 N.E.2d 761 (1998), citing State v. Yemma , 11th Dist. Portage App. No. 95-P0156, 1996 WL 495076 (Aug. 9, 1996). {¶21} The Supreme Court of Ohio in State v. Batchili , 113 Ohio St.3d 403, 2007- Ohio-2204, 865 N.E.2d 1282, paragraph two of the syllabus found : “The ‘reasonable and articulable’ standard applied to a prolonged traffic stop encom passes the totality of the circumstances, and a court may not evaluate in isolation each a rticulated reason for the stop.” Additionally, “a court will analyze the reasonableness o f the request based on the totality of the circumstances, viewed through the eyes of a rea sonable and prudent police officer on the scene who must react to events as they unfold.” Village of Kirtland Hills v. Strogin , 6th Dist. Lake App. No.2005-L-073, 2006-Ohio-1450, ¶ 13, citi ng, Village of Waite Hill v. Popovich , 6th Dist. Lake App. No.2001-L-227, 2003-Ohio-1587, ¶ 14. {¶22} Coyle cites to several cases in support of her argument t hat Trooper Patterson lacked reasonable suspicion to conduct field sobriety tests. See State v. Hall , 2016-Ohio-5787, 70 N.E.3d 1154 (5th Dist.); State v. Baker , 5th Dist. Ashland No. 17- COA-308, 2018-Ohio-2285; State v. Derov, 7th Dist. Mahoning No. 07 MA 71, 2009-Ohio5513; and State v. Dixon , 2nd Dist. Greene No. 2000-CA-30, 2000 WL 1760664 (Dec. 1, 2000). She specifically points to Trooper Patterson’s testimony that she did not demonstrate erratic driving, did not slur her speech, did not h ave any issues responding to Trooper Patterson’s questions while she simultaneously produ ced her license and registration, and did not have trouble exiting the vehicle. {¶23} In Hall , we concluded that red, watery, bloodshot eyes and an odor of alcohol, without additional indicia of intoxication, did not gi ve the officer reasonable[Cite as State v. Coyle , 2021-Ohio-3023.]

suspicion the driver was under the influence when the stop was for a single marked lanes violation made during a left turn, without speeding or addition al swerving. {¶24} In Baker , we noted the appellant was pulled over for an equipment viola tion without any indication of erratic driving. 2018-Ohio-2285 at ¶ 22. The only other factor the State argued was indicia of intoxication was the time of night, that the stop was close to several liquor establishments, and that the appellant was attem pting to hide his eyes. Id

. We held the officer did not have a reasonable suspicion based o n the condition of the appellant’s eyes and the strong odor of alcohol without any add itional indicia of

intoxication. Id . at ¶ 26. {¶25} The Seventh District considered a factual situation in Derov where the officer initiated a traffic stop based upon expired tags on the appellant’s license plate. 2009-Ohio-5513 at ¶ 3. The officer had not observed erratic dri ving but had noticed the strong smell of alcohol emanating from the appellant’s vehicle. Id . The officer admitted the appellant had no difficulty producing her license and regis tration or exiting her car and demonstrated no physical signs of impairment due to alcohol con sumption. Id . Based on plain error, the court found there was a lack of reasonable sus picion to conduct field sobriety tests based solely on the time of night, appellant’s r ed glassy eyes, and the strong smell of alcohol coming from her person. Id . at ¶ 15-17. {¶26} In Dixon , the Second District relied upon State v. Spillers , 2nd Dist. Darke No. 1504, 2000 WL 299550 (Mar. 24, 2000), to hold an officer di d not have reasonable suspicion to administer sobriety tests based on the time of nig ht (2:20 a.m.), the suspect's glassy, bloodshot eyes, an odor of alcohol on the suspect's per son, and the suspect's admission of having consumed one or two beers. 2000 WL 1760664 at *2. The court[Cite as State v. Coyle , 2021-Ohio-3023.] noted that the officer did not observe any erratic driving prio r to administering field sobriety

tests. Id

. {¶27} We held in Baker that “[r]easonable suspicion is “* * * something more than an inchoate or unparticularized suspicion or hunch, but less th an the level of suspicion required for probable cause.” Baker , 2018-Ohio-2285 at ¶ 16 quoting State v. Shepherd , 122 Ohio App.3d 358, 364, 701 N.E.2d 778 (1997). What is more, a motorist “need not display every possible indication of being under the influence in order for reasonable, articulable suspicion grounds to exist for the trooper to proce ed with field sobriety testing.”

Baker at ¶ 26 quoting State v. Cook , 5th Dist. Fairfield No. 06-CA-20, 2007-Ohio-707, ¶ 19. “Where a non-investigatory stop is initiated and the odor o f alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication, s uch as an admission of having consumed alcohol, reasonable suspicion exists.” State v. Malkin , 2020-Ohio-3059, ¶ 31 quoting State v. Strope , 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849 ¶ 19. The

facts of this case can be differentiated from the cases cited b y Coyle. This case does not involve an equipment violation or a de minimus traffic violatio n that occurred early in the morning with simply an odor of alcohol emanating from the drive r’s person. See State v.

Russo , 11th Dist. Lake No. 2019-L-080, ¶ 42. {¶28} In this case, Trooper Patterson initiated a traffic stop because Coyle was driving 83 mph in a 70-mph zone. She did not demonstrate errati c driving and Trooper Patterson admitted it was not excessive speeding, but her speed was 13 mph over the posted speed limit. (T. 44). When Trooper Patterson made contac t with Coyle, he smelled the strong odor of alcohol coming from the vehicle. Coyle was t he only occupant of the car. Trooper Patterson observed that Coyle’s eyes appeared bloo dshot and glassy. Coyle[Cite as State v. Coyle , 2021-Ohio-3023.]

told Trooper Patterson that she had come from Cincinnati, where she stated she had “Jack and Coke” at a bar earlier in the night. The amount of Ja ck and Coke that Coyle consumed prior to driving is unknown. {¶29} We must look to the totality of the circumstances through the eyes of Trooper Patterson, giving due deference to his training and exp erience to determine whether reasonable suspicion existed for the officer to conduct field sobriety testing. See

State v. Russo , 2020-Ohio-3236, ¶ 45. As we held in State v. Strope , “‘Where a noninvestigatory stop is initiated and the odor of alcohol is comb ined with glassy or bloodshot eyes and further indicia of intoxication, such as an admission of having consumed alcohol, reasonable suspicion exists.’” State v. Strope , 5th Dist. Fairfield No. 08 CA 50, 2009- Ohio-3849, ¶ 19, quoting State v. Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio4799, ¶ 16. See State v. Hamilton , 5th Dist. Holmes No. 17CA006, 2017-Ohio-8826, ¶ 17; State v. Palsgrove , 5th Dist. Fairfield No. 18-CA-24, 2019-Ohio-1855, 2019 WL 2121351, ¶ 11. The record in this case supports the finding the re was further indicia of intoxication: speeding and an admission of consuming an indeter minate amount of

alcohol. {¶30} We acknowledge this case is a close call. In State v. Palsgrove , we encountered a similar factual scenario where the officer conduc ted field sobriety tests of the defendant because the officer clocked a speed sixteen miles per hour over the limit, detected an odor of alcohol, observed bloodshot, glassy eyes, a nd received an admission from defendant that he was coming from a brewery and had consum ed one to two beers. Palsgrove , 5th Dist. Fairfield No. 18-CA-24, 2019-Ohio-1855, 2019 WL 212 1351. The trial court granted the defendant’s motion to suppress, and the State appealed. We held the[Cite as State v. Coyle , 2021-Ohio-3023.] trial court erred based upon the totality of the circumstances. We found the officer “relied on specific articulable facts giving rise to a reasonable suspi cion [appellee] was driving under the influence; justifying an extension of the initial det ention for the performance of field sobriety testing.” Id . at ¶ 15 quoting State v. Ciminello , 5th Dist. Ashland No. 17- COA-030, 2018-Ohio-467, ¶ 25. {¶31} As in Palsgrove , we find that based on the totality of the circumstances, Trooper Patterson relied upon specific articulable facts giving rise to a reasonable suspicion that Coyle was driving under the influence, thereby j ustifying an extension of the initial detention for the performance of field sobriety tes ting. We find no error by the trial court to deny the motion to suppress. {¶32} The sole Assignment of Error is overruled.

CONCLUSION {¶33} The judgment of the Delaware Municipal Court is affirmed. By: Delaney, J., and Wise, John, P.J., concur. Wise, Earle, J., dissents.[Cite as State v. Coyle , 2021-Ohio-3023.]

Wise, Earle, J., dissents. {¶ 34} I respectfully dissent from the majority opinion. {¶ 35} The majority cites Palsgrove as a case with similar facts. In Palsgrove , we found there was reasonable suspicion of impairment in order to expand the traffic stop to include field sobriety tests. However, I dissented in Palsgrove finding reasonable suspicion was not present upon a review of the totality of the circumstances. I dissent

here for the same reasons. {¶ 36} A review of the totality of the circumstances must look to the factors in State

v. Evans , 127 Ohio App.3d 56, fn.2,711 N.E.2d 761 (11th Dist. 1998). Th e incriminating factors here; time of day, a strong odor of alcohol, glassy blo odshot eyes and an admission of consumption, are very similar to those in Palsgrove . In Palsgrove , the odor was described as “detectable” and the admission was consumption of “one or two beers.” {¶ 37} In the instant case the trial court found Trooper Patter son testified credibly. JE at 7. The court found the facts to be: the stop was “during the early morning hours of Sunday *** [appellant was] traveling 13 mph over the posted spe ed limit *** Trooper Patterson smelled a ‘strong’ odor of alcoholic beverage *** saw [appellant’s] bloodshot, glassy eyes *** [appellant] also admitted to drinking a ‘Jack a nd Coke’ at a bar earlier in the night.” Id. {¶ 38} Appellant admitted to drinking alcohol and she had an od or of alcohol. As

we stated in State v. Keserich , 5th Dist. Ashland No. 14-COA-0011, 2014-Ohio-5120 at ¶

16:[Cite as State v. Coyle , 2021-Ohio-3023.]

[T]he admission of consumption of two alcoholic drinks is signi ficant, but not determinative, given the status of the law in Ohio regarding dr inking and driving. A smell of an odor of alcohol on the Appellant is a fa ctor of significance, but is not surprising given his admission of cons umption of two alcoholic drinks. These two factors are cumulative in effect; t hey do not have a synergistic effect on a reasonable grounds determination

.

{¶ 39} These observations confirm she drank, they do not provid e separate independent indicia of intoxication. {¶ 40} The fact she was stopped at 4:50 AM is a valid factor to consider where she had been and if she had consumed alcohol. The significance of t his factor is lessened by

her admission she had been at a bar several hours earlier and h ad a “Jack and Coke.” {¶ 41} Speeding can also be a valid factor to consider as an in dicator. On crossexamination the trooper indicated excessive speed may be an ind icia of intoxication. However, he clearly indicated that he did not consider the spee d excessive in this case. {¶ 42} The above factors are valid considerations which may ten d to show impairment. However, the additional Evans’ factors cannot be ignored. In this case as in Palsgrove , these additional factors show no indicia of impairment and te nd to show no impairment. {¶ 43} Appellant did not exhibit erratic driving. The trooper o bserved no swerving or weaving while following the vehicle. When the trooper activa ted his overhead lights, she responded timely, signaled properly and appropriately pulle d to the side of roadway.[Cite as State v. Coyle , 2021-Ohio-3023.]

{¶ 44} Appellant showed no physical deficiencies. When asked to produce documents her motor skills were intact. She had no difficulty p roducing her license from her purse as well as registration and insurance documents from the glove compartment. {¶ 45} Appellant exhibited no cognitive signs of impairment. Sh e had no difficulty understanding and communicating with the trooper. While speakin g with appellant, the trooper observed her speech; it was not slow or slurred. The tr ooper did not observe appellant having any difficulties while he attempted to divide her attention by asking her to simultaneously answer questions and perform physical tasks. {¶ 46} The factors of odor and admission are solid evidence of consumption. However, the question to be answered is what is the effect of t he consumption on appellant’s ability to operate a vehicle. The other factors pre sent in this case are direct touchstones of impairment. These factors do not show any indici a of cognitive or physical impairment. {¶ 47} I would find based upon the totality of the circumstance s the trooper lacked reasonable suspicion of impairment to justify field sobriety te sts. I would sustain appellant’s assignment of error and find the motion to suppress should have been granted.