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City of Cleveland v. Solomon8/12/1999
JUDGMENT AFFIRMED.
Appellant David Solomon was charged with four counts in Cleveland Municipal Court: Driving Under the Influence , (M.C. 433.01 ); Driving Under the Influence; Breath (M.C. 433.01 ); Failure to Signal; Change Course (M.C. 431.14); and Open Container in a Motor Vehicle (M.C. 4301.62). The charges stemmed from an incident that occurred on December 25, 1997.
On December 25, 1997, Officer Knupsky and his partner were on basic patrol in the vicinity of 7600 Kinsman in the City of Cleveland, Ohio. At approximately 6:53 p.m., the officers observed a black Chevy Blazer that had been traveling ahead of them make a sudden left hand turn onto Minnie Avenue, without signaling and in front of oncoming traffic. The officers, after waiting for the traffic to clear, followed the vehicle and attempted to make a traffic stop. As they pulled onto Minnie Avenue, they observed that the vehicle had pulled into an alley and had turned around and stopped. The officers then noticed the driver of the vehicle walk toward the sidewalk and stumble up the steps of a house.
The officers turned around in the alley, pulled behind the Blazer, and activated their overhead lights. At the time the officers stopped, the driver, appellant, was knocking on the door of the home. Appellant received no answer and returned to the vehicle. At this time, the officers approached the driver and informed him that they were stopping him for making a left hand turn without a signal.
While appellant was handing his driver's license to Officer Knupsky, the officer detected a strong odor of alcohol. In response to the officer's query, appellant answered that he had drunk a 40 ounce of St. Ides recently. During an inventory search in connection with the tow of the vehicle, the officer observed one forty-ounce bottle of St. Ides, approximately one-quarter full, on the floor of the vehicle. However, at the hearing, appellant testified that he had two cans of Colt 45" and that the forty-ounce container in his vehicle had come from the night before last.
The officers then conducted three field sobriety tests. Appellant was first asked to place his feet together, put his arm out to the side and touch his nose. Appellant touched his cheek. Appellant was then asked to stand with one foot raised off of the ground and to count from one thousand one to one thousand thirty. Appellant skipped one thousand and nine. Finally, appellant was asked to recite the alphabet. He successfully recited A through H, then said, I, L, N, P, Q, R, S, T, U, W. The officers therefore placed appellant under arrest for driving under the influence of alcohol.
According to the officer's testimony, appellant was conveyed to the Fourth District Police Station and was presented with a form regarding a breathalyzer test, which included information regarding the consequences of appellant's failure to take the test. Appellant submitted to the test.
In contrast to the officer's testimony, appellant testified that he was not informed of the consequences of the test. He reported that the officer said only, You're drunk and it's your word against our word. Appellant also maintained that he requested an attorney prior to the test and was not permitted an opportunity to use the telephone until after the test had been completed.
Appellant filed a motion to suppress in the lower court on the grounds that the officers violated appellant's rights by failing to allow him to contact his attorney prior to conducting the test. The trial court conducted a hearing on the motion and thereafter granted appellant's motion.
Appellee subsequently filed a motion for reconsideration;
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