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State v. Johnson5/3/2004
Defendant-appellant, Alan Johnson, appeals from a Clermont County Court of Common Pleas jury trial finding him guilty of driving under the influence ("DUI") in violation of R.C. 4511.19(A)(1), driving under suspension in violation of R.C. 4507.02(C), and falsification in violation of R.C. 2921.13(A)(3). We affirm.
At approximately 10:50 p.m. on January 28, 2002, Deputy Robert Bailey of the Clermont County Sheriff's Office observed appellant driving a black Ford Thunderbird on westbound State Route 125. Deputy Bailey testified that appellant's vehicle crossed the centerline of the road approximately a foot and a half to two feet. He then observed the vehicle cross the right shoulder line by a foot. The deputy proceeded to turn on his lights and pull over appellant.
Deputy Bailey noted that appellant's "stopping procedure was very slow." Upon approaching the driver's side of the vehicle, Deputy Bailey stated that appellant identified himself as Richard Johnson from Arleta, California. Appellant was unable to provide identification.
Deputy Bailey testified that he detected an odor of alcoholic beverage on appellant's breath and that appellant's eyes were glassy and bloodshot. When questioned, appellant admitted to drinking one beer prior to driving the vehicle. The deputy asked appellant to step out of the vehicle. He noted that appellant "used the door frame and driver's seat to help assist him in getting out of the vehicle" and that he was walking slowly.
The deputy had appellant perform three field sobriety tests: the horizontal gaze nystagmus test ("HGN"), the walk-and-turn test, and the one-leg-stand test. Before completing the tests, the deputy testified that appellant told him that he had an old ankle injury to his right ankle. On the HGN test, the deputy found that appellant presented four out of six possible clues. On the walk-and-turn and one-leg stand tests, where two clues indicate that a person may be under the influence of alcohol, the deputy found appellant presented four clues and three clues respectively.
Deputy Bailey also performed a portable breath test ("PBT") on appellant. The deputy subsequently placed appellant under arrest for operating a motor vehicle while under the influence and called for a tow truck. While waiting for the tow truck, the deputy performed an inventory of the contents of appellant's vehicle. He found six cans of Bush beer. The deputy noted that two of the cans were empty and the other four cans were cold to his touch.
While they waited, Trooper Nathan Lawson of the Ohio State Highway Patrol pulled up and offered his assistance. He then became involved in the investigation. Trooper Lawson testified that appellant's breath had a strong odor of alcohol and that his eyes were bloodshot and "squinty" and his speech was slurred. Also, Trooper Lawson found five of six indicators when he performed the HGN test on appellant.
After transporting appellant to the Clermont County Jail, Deputy Bailey asked appellant to submit to a breathalyzer test. Appellant refused. Further investigation at the jail revealed appellant's identity as Alan Paul Johnson. Appellant was subsequently charged with driving under the influence , driving under suspension, and falsification.
Before his jury trial, appellant moved for a continuance in order to obtain new counsel. He also filed a motion in limine in order to have the fact that the PBT was administered and the PBT result entered into evidence. The trial court overruled both motions. Following a jury trial, appellant was found guilty on all three counts. He appeals, raising two assignments of error.
Assig
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