CITY OF CLEVELAND v. BLUHM (2015)

JOURNAL ENTRY: COURT'S FINDINGS AND OPINION ON PLAINTIFF'S MOTION TO SUPPRESS

Richard A. Bluhm (hereinafter referred to as “defendant”) was arrested on December 7, 2014 at approximately 2:00 p.m. for driving while impaired. The underlying facts to support the arrest are limited to defendant's failure to stop at the stop bar painted on the street, although he stopped for the red light; slight odor of alcohol, glassy eyes, slurred speech, and failed horizontal gaze nystagmus (HGN) field sobriety test. The defendant filed a motion to suppress challenging whether there was probable cause for police to ask defendant to get out of the car, and whether there was substantial compliance in the execution of the HGN test.

On March 27, 2015, the court held a hearing on the motion to suppress. The City of Cleveland called one witness, Ohio Highway Patrol Trooper Walter Martens (“the trooper”). The trooper's testimony revealed the following:

The defendant was stopped for stopping beyond the painted stop bar. The stop bar was a distance before the traffic signal light. Upon observing the defendant stop beyond the bar, the trooper followed the defendant approximately one third of a mile. No additional traffic infractions were committed. When the trooper stopped the defendant he observed glassy eyes and a slight odor of alcohol. As a result of these observations, the trooper asked the defendant out of the vehicle for further investigation. The trooper had the defendant perform three field sobriety tests: horizontal gaze nystagmus (HGN), one-leg stand and heel-to-toe tests. The defendant failed the HGN test, but passed the one-leg stand and heel-to-toe tests. The trooper admitted that in the execution of the HGN test he failed to check for resting nystagmus and failed to check the onset of nystagmus at 45 degrees twice.

Upon reviewing the video, the defendant conceded that he failed to stop at the stop bar. However, he contended that the trooper did not have additional facts to support probable cause for further investigation, i.e. asking the defendant to step out of the vehicle. Therefore, the defendant continued with his challenge of probable cause and the trooper's execution of the HGN test.

Although the trooper stopped the defendant for a minor moving violation, an investigation by the trooper is not limited to the scope of that violation. The trooper has the authority to investigate additional violations as evidence of potential violations is observed. The trooper must have a reasonable suspicion based on specific articulable facts that a law has been violated or is being violated.¹ The determination of reasonable suspicion to further detain the defendant must be based on the totality of the circumstances surrounding the trooper's observations .²

In short, the detention may not be based on an unparticularized suspicion or hunch.³ The difference between a hunch and a reasonable suspicion is the number of surrounding facts and circumstances.⁴ State v. Evans identifies factors that may be included in determining reasonable suspicion of operating a motor vehicle while under the influence of alcohol:

These factors include, but are not limited to (1) the time and date of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that 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 intensity of that odor, as described by the officer (“very strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect's demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given. All of these factors, together with the officer's previous experience in dealing with drunken drivers, may be taken into account by a reviewing court in determining whether the officer acted reasonably. No single factor is determinative.⁵

Here, the defendant asserted that the trooper had insufficient evidence to go beyond a mere suspicion of operation while impaired. When an impaired driver is stopped by law enforcement, operating a motor vehicle while impaired is actually an offense in progress.⁶ In most police stops, the intrusion is not in the midst of the actual alleged commission of the offense.⁷ Rather, in most other cases, the commission of the offense is imminent or has already occurred. Upon observing reasonable indicia of impaired driving, the officer should be assured that the driver is not impaired before allowing that person to go any further. Public order and safety demand no less. It is true that there is no absolute prohibition of drinking and driving, but that allowance to drink and drive should not prevent law enforcement from investigating whether the allowed level of consumption has been exceeded.

Facts which may not rise to a level of probable cause for an arrest can be sufficient to justify the lesser intrusion of requiring the motorist to perform sobriety tests.⁸ The trooper has a responsibility to determine whether his suspicion of impairment is valid. Consequently, further investigation is appropriate.

In Sanders, the Eighth District Court of Appeals stated, “An analysis of an investigatory stop leading to an arrest requires careful attention to each stage of the detention in order to make sure that the extent of the intrusion represented by each stage is warranted by the officer's reasonable and articulable suspicion at that point.”⁹ In other words, there should be a progression of evidence-gathering which leads to a determination of probable cause. The length of the investigation cannot be unreasonably extended. The Supreme Court of the United States in 1985 held, “It is clear that the ‘brevity of the invasion’ of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justified on reasonable suspicion.”¹⁰ Additionally, the Supreme Court stated that consideration must be given to “law enforcement's purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.”¹¹

Given the moving traffic violation, odor of alcohol, and glassy eyes the trooper observed in this case, he had a reasonable articulable suspicion that the defendant was driving impaired. This suspicion required the trooper to further investigate. The time defendant was outside of the vehicle to perform the standard field sobriety tests was not excessive. Consequently, defendant's claim that he should not have been required to get out of the vehicle is without merit.

Defendant also challenged the manner in which the field sobriety tests were performed. Since the trooper testified that the defendant passed both the one-leg stand and heel-to-toe, there is no need to examine the execution of these tests. The only test which needs examination is the HGN.

The National Highway Traffic Safety Administration (NHTSA) manual sets forth the manner in which to conduct field sobriety tests to detect impairment. The horizontal gage nystagmus (HGN) test is conducted by examining the movement of the driver's eyes to detect spasmodic reactions of the eyes. The test begins with the officer checking the driver's eyes for pupil size and equal tracking.¹² The test also requires three sets of tests performed on each eye.¹³ These tests allow for presentment of six clues of impairment.¹⁴ Presentment of four clues indicates impairment.¹⁵

Pursuant to R.C. 4511.19(D)(4), field sobriety tests must be performed in substantial compliance by clear and convincing evidence. The trooper in the case now before the court acknowledged having failed to complete the tracking examination for equal tracking at the onset of the test. Additionally, upon cross examination, through review of the dash cam video, it is apparent that the trooper failed to complete all six tests. He failed to perform the examination at the onset of nystagmus prior to 45 degrees twice. However, the trooper did detect four clues out of the five tests, without performance of the sixth test.

The question now is, absent the examination for equal tracking and the second examination for the onset of nystagmus prior to 45 degrees, did the trooper complete the HGN test in substantial compliance of the NHTSA manual? R.C. 4511.19(D)(4)(b) does not define “substantial compliance.” This determination must be made on a case-by-case basis.¹⁶ The consideration on a case-by-case basis should be whether the failure to perform the non-compliant step would affect the outcome of the test. Here the trooper failed to examine for equal tracking at the onset. The purpose of establishing equal tracking is to determine whether there is an indication of a medical disorder, injury or blindness.¹⁷ Since the defendant has not asserted that he suffers from a medical disorder, injury or blindness, failure to complete this step would not have a prejudicial effect on the outcome of the test. Certainly if the defendant did suffer from any of the concerns noted, then the outcome could have been different.

Next, the trooper failed to complete the second test for the onset of nystagmus prior to 45 degrees. However, the defendant exhibited four clues before the entire test was completed. Clearly, the manual does not instruct a police officer to stop once four clues are detected. But the question is whether failure to complete the last step would have changed the outcome of the test. The answer is no, since the defendant had already exhibited four clues which indicated impairment. Now, if there was some evidence of non-compliance in the administration of one of the four tests where the clues were demonstrated, non-compliance would then have been substantial, because one of the clues would have had to be disregarded. If one of the tests would have been disregarded, then the defendant would have only exhibited three clues. However, that is not the case here.

Now that the court has reviewed the two errors individually, it must determine whether cumulatively the two errors diminish the performance of the HGN test to a level below substantial compliance. In State v. Loveridge,¹⁸ the officer did not perform the preliminary tests (of checking for equal pupil size and equal tracking), did not check each eye twice, did not use proper measures of time and did not know what specific instructions he gave to Loveridge prior to administering the tests. Given all these failures in the administration of the HGN, the court found that the officer had not performed the HGN in substantial compliance with the NHTSA standardized testing procedures. The failures in this case are minimal compared to the failures in Loveridge. This comparison is not based upon the number of errors, but on the seriousness of the errors. Cumulatively, this court finds that the errors committed by the trooper are insufficient to find that he failed to perform the tests in substantial compliance with NHSTA guidelines.

Consequently, the defendant's Motion to Suppress must be denied.

IT IS SO ORDERED.

FOOTNOTES

1.  State v. Slider, 11th Dist. No.2007–P–0096, 2008 WL 2042828 (May 9, 2008).

2.  State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980).

3.  Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).

4.  City of Cleveland v. Machnics, 984 N.E.2d 1129 (Ohio Mun.2012).

5.  State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761 (11th Dist.1998).

6.  R.C. 4511.19.

7.  Id.

8.  City of Cleveland v. Sanders, Ohio App 8th District, 2004 WL 1902228, citing State v. Cooper, Clark App. No.2001–CA–86, 2002 WL 1251154.

9.  Sanders, supra, citing U.S. v. Frantz (2001) 177 F.Supp.2d 760, 763.

10.  U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568 (1985), citing U.S. v. Place, 462 U.S. 696, 709, 103 S.Ct. at 2645 (1983).

11.  Sharpe, supra, citing U.S. v. Hensley, 469 U.S. 221, 228–229, 234–235, 105 S.Ct. 675, 680–681, 683–684; Place, supra, 462 U.S. at 703–704, 709, 103 S.Ct. at 2642–2643, 2645–2646; Michigan v. Summers, 452 U.S. 692, 700 and n. 12, 101 S.Ct. 2587, 2593 and n. 12 (1981) (quoting 3 W. La Fave, Search and Seizure § 9.2 pp. 36–37 (1978)). See also State v. Dixon, 2nd Dist. No.2000–CA–30, 2000 WL 1760664 (Dec. 1, 2000); State v. Spillers, 2nd Dist. No. 1504, 2000 WL 299550 (March 24, 2000).

12.  NHTSA Student Manual at VIII–6.

13.  NHTSA Student Manual at VIII–7.

14.  NHTSA Student Manual at VIII–8.

15.  Id.

16.  Brookpark v. Key, 2008–Ohio–1811, 2008 WL 1747442, (Ohio App. 8th Dist.Cuya.Co. No. 89612, 2008), citing State v. Mapes, 6th Dist. No. F–04–031, 2005 Ohio 3359, citing State v. Robinson, 160 Ohio App 3d. 802, 828 N.E.2d 1050, 2005–Ohio 2280 at 45.

17.  Judge Jennifer P. Weiter and Kevin P. Weiter, Ohio Driving Under the Influence Law, ¶ 7:2, p. 187 (2014–2015).

18.  State v. Loveridge, 2007–Ohio–4493, 2007 WL 2472238 (Ohio Ct.App.3d Dist. Marion County 2007).

EMANUELLA GROVES, Judge.