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State v. Shinaberry12/5/2003
Defendant-appellant Robert R. Shinaberry [hereinafter appellant] appeals from his January 17, 2003, conviction and sentence in the New Philadelphia Municipal Court on one count of driving while under the influence of alcohol, in violation of R. C. 4511.19(A)(1), and one count of failing to move over for a stationary public safety vehicle, in violation of R. C. 4511.213(A)(1). Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
On November 11, 2001, appellant was driving a vehicle southbound on I-77 when he passed an Ohio State Patrol vehicle. The State Patrol vehicle was parked on the berm of the road with its red and blue lights flashing.
Appellant drove his vehicle past the State Highway Patrol vehicle without changing lanes. The Ohio State Trooper made a traffic stop of appellant's vehicle for failing to move over for a stationary public safety vehicle. Further investigation caused the Trooper to believe that appellant was driving under the influence of alcohol. Therefore, the Trooper placed appellant under arrest.
The Trooper transported appellant to the New Philadelphia Post of the Ohio State Highway Patrol where appellant refused to submit to a urine test. The Trooper then charged appellant with one count of driving while under the influence of alcohol, in violation of R. C. 4511.19(A)(1), and one count of failing to move over for a stationary public safety vehicle, in violation of R. C. 4511.213(A)(1).
On November 15, 2001, appellant entered pleas of not guilty to the charges. Subsequently, on February 19, 2002, appellant filed a Motion to Suppress. On May 2, 2002, following a hearing, a Magistrate overruled appellant's Motion to Suppress. On May 13, 2002, the Magistrate issued findings of fact and conclusions of law relevant to the Motion to Suppress. Thereafter, on May 28, 2002, appellant filed an Objection to the Magistrate's Decision. However, on October 1, 2002, the trial court overruled appellant's Objection.
On January 17, 2003, appellant changed his plea on both charges from not guilty to no contest. The trial court found appellant guilty and sentenced appellant accordingly.
It is from the January 17, 2003, conviction that appellant appeals, raising the following assignment of error:
"WHERE, IN A DUI PROSECUTION, THE SOLE BASIS FOR THE INITIAL TRAFFIC STOP IS THAT THE ACCUSED, UPON APPROACHING A STATIONARY PUBLIC SAFETY VEHICLE THAT WAS DISPLAYING A FLASHING COMBINATION RED AND BLUE LIGHT, FAILED TO CHANGE LANES INTO A LANE THAT WAS NOT ADJACENT TO THAT OF THE STATIONARY PUBLIC SAFETY VEHICLE, IT IS ERROR FOR THE TRIAL COURT TO OVERRULE THE ACCUSED'S MOTION TO SUPPRESS WHERE THE STATE FAILS TO ESTABLISH THAT THE STATUTE UPON WHICH THE STOP IS ALLEGED TO BE BASED ACTUALLY PROHIBITS THE CONDUCT OF THE ACCUSED."
In the sole assignment of error, appellant argues that the state failed to establish appellant's conduct upon which the stop was based was in violation of R.C. 4511.213. Therefore, appellant argues that because there was no basis to stop the vehicle, appellant's motion to suppress should have been granted and appellant's conviction should be reversed. We disagree.
There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486, 597 N.E.2d 1141; State v. Guysinge
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