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State v. Alborn3/3/2003
Defendant-appellant Jack L. Alborn, Jr. appeals his convictions entered by the Canton Municipal Court for driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1) and (A)(3), following a jury's verdict of guilty on both counts. The trial court also found appellant guilty of driving on left side of roadway, in violation of R.C. 4511.30. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
On March 2, 2002, Officer Terry Rupert observed a truck driven by appellant go left of center while turning right onto another street. Officer Rupert testified he saw appellant ride close to the berm on the white line a couple of times after completing the turn before the officer stopped appellant at the next intersection where appellant had stopped for a stop sign. The videotape of appellant's driving did not show any traffic violation. Officer Rupert asked appellant for proof of insurance and his driver's license and registration. The officer noticed appellant did not seem to be able to handle multiple tasks at once. Officer Rupert did not detect the odor of alcohol coming from any of the three occupants of the truck at this time. Officer Rupert returned to his cruiser to check for warrants. The second time the officer approached the truck, he noticed a mild smell of an alcoholic beverage on appellant's breath. Officer Rupert also noticed appellant's speech was slightly slurred and slow.
At trial, Officer Rupert testified appellant's eyes were bloodshot although no such testimony was elicited from Officer Rupert at a suppression hearing held on March 28, 2002, nor was Officer Rupert's observation about the appearance of appellant's eyes noted in his written report of the incident.
Officer Rupert requested appellant perform some field sobriety tests. At the suppression hearing, the trial court determined the horizontal gaze nystagmus test (HGN) was not properly administered by Officer Rupert; and therefore, ruled the results of the HGN test inadmissible.
Officer Rupert also had appellant perform the one leg stand test and the walk and turn test. Appellant could not complete his first attempt at the one leg stand test. Appellant swayed slightly and lost count. Appellant stopped before being told to stop. During the walk and turn test, appellant did not touch heel to toe the full way, missing his foot by four inches. Appellant staggered slightly during the test. At trial, appellant testified he was having problems with his right ankle and left knee.
Appellant admitted he had drank two beers. After completion of the field sobriety tests, appellant was arrested and taken to the Malvern Police Department for a blood alcohol test. At the suppression hearing, Officer Rupert testified appellant was tested only one time and a videotape of appellant's breath test might exist. At trial, Officer Rupert conceded appellant was given two breath tests, but the first test result slip had been lost or misplaced.
Appellant was arraigned on March 8, 2002, at which time he entered not guilty pleas to all the charges. On the same day, appellant filed his request for discovery, request for bill of particulars, and a motion to suppress. Appellee filed its response to appellant's discovery request on March 27, 2002, which included an illegible BAC Datamaster ticket and a legible ticket showing a .161 result. No mention of videotape evidence of the breath test was made in appellee's discovery response.
The trial court conducted a hearing on appellant's motion to suppress on March 28, 2002. The trial court overruled the motion to suppress by Judgment Entry filed April 2, 2002, but ruled the
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