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State v. Quesenberry5/24/2001
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Applying the law to the facts of the present case, it appears that Officer Flanagan had not intended to arrest appellant when he handcuffed him and placed him in the back of the cruiser. Rather, Officer Flanagan's actions were taken in furtherance of his and appellant's safety as well as in furtherance of his investigative stop. Officer Flanagan was dispatched to the scene of appellant's crash. Once Officer Flanagan arrived at the crash scene, he approached appellant's car to see if he had been injured.
Appellant's actions and demeanor lead Officer Flanagan to suspect that he was under the influence of alcohol. As a result, Officer Flanagan contacted the Ohio State Highway Patrol who dispatched Sergeant Bernard to the scene to undertake a further investigation of the matter. While Officer Flanagan waited for Sergeant Bernard to arrive, he handcuffed appellant and placed him in the back of a patrol car.
Due to the severe nature of the crash, appellant's diminished motor and coordinative skills, and the high traffic area where the crash was located, there was a chance that appellant might injure himself or the other officers who were conducting the investigation. Under the totality of the facts and circumstances in the case at bar, it appears that Officer Flanagan's act of handcuffing appellant and placing him into the back of the police cruiser did not convert the investigative stop into an arrest.
As such, appellant's first assignment of error is without merit.
Appellant's third assignment of error states:
"EVEN IF OFFICER FLANAGAN HAD SUFFICIENT CAUSE TO ARREST, THE COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS UPON THE STATE'S FAILURE TO ESTABLISH THAT SERGEANT BERNARD HAD SUFFICIENT CAUSE TO ARREST."
In appellant's third assignment of error, appellant argues that the state presented insufficient evidence to establish that Sergeant Bernard had probable cause to arrest him. Appellant argues that his poor HGN performance, coupled with his blood shot eyes and slurred speech, equally could have been attributed to his being injured or shaken up from the motor vehicle accident.
A thorough review of the record shows that Sergeant Bernard possessed probable cause to arrest appellant for driving under the influence of alcohol. Sergeant Bernard testified as to the several factors that led him to believe that appellant had been driving under the influence. Appellant had an odor of alcohol on his person, he acknowledged that he had been drinking, he staggered when he walked, and he failed the three field sobriety tests administered by Sergeant Bernard.
Accordingly, appellant's third assignment of error is without merit.
Appellant's second assignment of error states:
"THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS BASED UPON THE FAILURE OF THE ARRESTING OFFICER TO APPEAR OR TESTIFY AT THE MOTION HEARING."
Pursuant to App.R. (12)(A)(1)(c), appellant's second assignment of error has been rendered moot by the disposition of appellant's first and third assignments of error.
In appellant's second assignment of error, appellant argues that the trial court erred in denying his April 2, 1999 motion to dismiss because Officer Flanagan, who appellant argues was the arresting officer, failed to testify at the motion to dismiss hearing. As such appellant argues that the state failed to present sufficient evidence demonstrating that the state had probable cause to arrest him.
As noted in appellant's first assignment of error, Officer Flanagan was not the arresting officer so his failure to testify had no bearing on whethe
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