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State v. Francis2/7/2003
JUDGMENT: Judgment Reversed
. This appeal was brought by plaintiff-appellant State of Ohio ("the State") from the judgment of the Hardin County Municipal Court dismissing a complaint charging defendant-appellee Jason R. Francis ("Francis") with the offense of OMVI.
. On August 31, 2001, Trooper Christopher Kinn ("Kinn") stopped the vehicle driven by Francis for a non-functioning license plate light. Kinn asked Francis to step out of the vehicle to see the missing light. Francis walked without any problem to the rear of the vehicle. When he bent over to examine the plate area, he almost fell. At that time, Kinn decided that possibly Francis had been drinking and asked him to enter the cruiser.
. Kinn noticed that Francis' speech appeared slurred and that there was the odor of alcohol while in the cruiser. Francis admitted to having drank some beers earlier. Kinn then administered the horizontal gaze nystagmus ("HGN") test and detected various clues that Francis had been drinking. No other field sobriety tests were administered because Francis told Kinn that he had a bad knee. Kinn then asked Francis to submit to a portable breathalyzer test ("PBT"), which revealed a blood alcohol level of .18. Kinn then arrested Francis for OMVI. At the station, Kinn completed the paperwork, had Francis sign it, signed it himself, and gave Francis a copy. Sometime later, Kinn called dispatch to determine the time of the stop, added that to the form, and added the information that the urine screen was at the lab. This altered form was later filed with the trial court, but not supplied to Francis.
. On September 6, 2001, Francis filed a motion to suppress. This motion claimed that all evidence obtained incident to the arrest should be suppressed because the officer lacked reason to continue to detain Francis for driving under the influence , that the results of the urine screen should be suppressed because the test was not performed within two hours of operating a motor vehicle, and that any statements made by Francis prior to being read his rights should be suppressed. A hearing was held on the motion on July 1, 2002.
. At the hearing, Kinn testified to the above facts. Kinn also testified that he had seen no erratic driving or speeding by Francis. Kinn then admitted that he did not know if he had performed the HGN test properly, that he did not know when or if the PBT was properly calibrated, that he had altered the time on the form after it was signed by Francis, and that he was unaware of when the stop occurred and was relying on the patrol dispatcher to provide him with the correct time. When questioned by the trial court, Kinn stated that prior to asking Francis to enter the cruiser to question him about possibly driving while intoxicated, he had witnessed no objective signs that Francis was intoxicated.
. On September 9, 2002, the trial court entered judgment making the following findings of fact: (1) Kinn had stopped Francis for not having his license plate properly illuminated; (2) Kinn had asked Francis to enter the cruiser to question him about drinking; (3) while in the cruiser, Kinn had noticed that Francis' speech was slurred and that Kinn noticed a strong odor of alcohol; (4) Kinn had performed the HGN test on Francis; (5) Kinn had administered a PBT to Francis; and (6) that Kinn had arrested Francis for OMVI based upon these things. The trial court then considered Kinn's testimony based upon cross-examination and questions by the trial court and made the following findings of fact: (1) Kinn admitted that he did not detect any odor of alcohol prior to Francis getting into the cruiser; (2) Kinn did not observe any thing that would
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