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State v. Tomko11/3/1999
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following Disposition is made:
Defendant Mark Tomko has appealed from his conviction and sentence in the Akron Municipal Court. He has raised three assignments of error in which he challenges his detention and arrest, as well as the results of his breath-alcohol test. This Court affirms the judgment of the trial court.
I.
On November 9, 1997, Defendant's vehicle was stopped at approximately 3:30 a.m. by Trooper Kenneth Collins of the Ohio State Highway Patrol. The trooper recorded the speed of Defendant's car at 75 miles per hour in a 65 mile-per-hour zone. Upon approaching the car, Trooper Collins noticed a "mild odor" of alcohol. The trooper asked Defendant if he had been drinking, and Defendant said that he had consumed two beers that evening. Defendant also claimed that he had had no sleep during the previous 24 hours.
Trooper Collins ordered Defendant out of his car and performed several "field sobriety tests" to determine if Defendant was under the influence of alcohol or drugs. He performed the Horizontal Gaze Nystagmus (HGN) test, which registers involuntary eye movement, signaling possible impairment. According to Trooper Collins, Defendant exhibited six "indicators" during the HGN. That alone, Trooper Collins testified, was evidence of impairment.
Trooper Collins also administered the "walk and turn" and the "one-legged stand" tests. Defendant exhibited two "indicators" on each of those tests. Specifically, Defendant had trouble counting, put his foot down, did not touch heel to toe when walking, and used his arms for balance. Based on Defendant's performance on those tests, Trooper Collins took him to the Ohio State Highway Patrol headquarters, where Defendant submitted to a breath test to determine his breath-alcohol content. His breath registered 0.149 grams of alcohol per 210 liters of breath.
Defendant was charged driving under the influence of alcohol or drugs, a violation of R.C. 4511.19(A)(1); driving with a prohibited breath-alcohol content, a violation of R.C. 4511.19(A)(3); and speeding, a violation of R.C. 4511.21. He moved to suppress the evidence against him, claiming that it was obtained as a result of an unlawful detention. He also argued that the breath-alcohol test failed to comply with Department of Health regulations and that the results must, therefore, be suppressed.
On June 30, 1998, the trial court ruled that the trooper had probable cause to arrest Defendant and that the breath testing procedures substantially complied with Department of Health regulations. It, therefore, denied Defendant's motion to suppress.
Defendant entered a plea of no contest to driving with a prohibited breath-alcohol content, and the trial court dismissed the remaining counts. The trial court found him guilty, sentenced him, then stayed execution of that sentence pending appeal.
Defendant has asserted three assignments of error. His first two assignments of error are related and will be addressed together :
II.
A.
The trial court erred in denying the Defendant's motion to suppress because the Ohio State Trooper lacked reasonable suspicion to detain the Defendant to administer the field sobriety tests.
The trial court erred in denying the Defendant's motion to suppress since there is insufficient evidence to support a finding that there was probable cause to arrest the Defendant for operating a motor vehicle while under the influence of alcohol.
Defendant has claimed th
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