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State v. Burger8/11/1986
FORD, J.
Defendant-appellant, Laurie Burger, appeals the decision of the Portage County Court of Common Pleas convicting her of operating a motor vehicle while under the influence of alcohol, in violation of R.C. 4511.19(A)(3).
On April 10, 1985, during the early morning hours, Trooper John Lenkey of the Ohio State Highway Patrol was on routine patrol on State Route 5, where it abuts the Ravenna Arsenal. As the officer proceeded west, he clocked appellant's automobile, by means of a K55 radar device, travelling at seventy-four miles per hour in a fifty-five-miles-per-hour zone, on State Route 5 near the main gate of the arsenal. The officer pursued appellant's car and signaled her to stop. Trooper Lenkey then approached the vehicle, informed appellant why she had been stopped, and asked to see her driver's license and registration. The officer testified that appellant, whose speech was slurred, exhibited some confusion in producing her license. The officer further stated that he detected a strong odor of alcohol on appellant's breath. Appellant was asked to get out of her car and perform some coordination tests. The officer testified that upon exiting her vehicle, appellant grabbed the officer's arm and stated that she knew she had had too much to drink, and that appellant's balance was very poor. Trooper Lenkey then placed appellant under arrest for operating smotor vehicle while under the influence of alcohol and took her to the patrol post for a breath test. It was determined that appellant had a concentration of .18 of one gram of alcohol by weight per two hundred ten liters of breath.
Appellant entered a plea of not guilty and, on June 19, 1985, a bench trial commenced on the matter. Appellant moved to dismiss the charge, contending that the officer did not have probable cause to arrest her for violating R.C. 4511.19 and that he did not have jurisdiction to arrest her where the alleged offense took place. The trial court overruled both motions and after hearing the evidence, entered a finding of guilty.
Appellant advances the following assignments of error:
"1. The trial court erred, to the prejudice of the appellant, in failing to grant defendant's motion to dismiss on the basis that the officer had no probable cause to stop and arrest appellant for the offense of driving under the influence of alcohol based solely upon appellant's exceeding of the posted speed limit.
"2. The trial court erred to the prejudice of the appellant in failing to grant defendant's motion to dismiss for the reason that the officer lacked jurisdiction to arrest appellant for the offense alleged, [when] the stop and arrest all occurred wholly within the boundaries of land owned by the Federal Government of the United States of America."
Appellant's first assignment of error contends that speed alone, coupled with no observation by the arresting officer of other operation by appellant that could lead him to believe appellant was operating an automobile while under the influence of alcohol, is insufficient to establish probable cause for an arrest under R.C. 4511.19. The assignment is without merit.
Appellant's argument is premised upon the following language from the syllabus of State v. Taylor (1981), 3 Ohio App.3d 197, 3 OBR 224, 444 N.E.2d 481:
"The act of only nominally exceeding the speed limit coupled with the arresting officers' perception of the odor of alcohol (not characterized as pervasive or strong), and nothing more, does not furnish probable cause to arrest an individual for driving under the influence of alcohol." (Emphasis sic.)
However, while the holding of
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