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State v. Babel8/9/2004
Plaintiff-appellant, Gretchen Babel, appeals her conviction in the Butler County Area III Court for driving under the influence of alcohol ("DUI").
In the early hours of December 7, 2002, Officer Neil Schmitz of the West Chester Police Department observed appellant drive at a high rate of speed on Tylersville Road in West Chester Township, Butler County, Ohio. Appellant was driving between 55 and 60 m.p.h. in a 35 to 40 m.p.h. zone. While following her, the officer observed appellant's car drive on the centerline with both left tires for approximately 30 to 40 feet. The officer pulled appellant over.
Appellant told the officer that she was on her way home from a Christmas party and that she had had a few beers at the party. As they spoke, the officer noticed that appellant smelled strongly of alcohol, that her eyes were bloodshot, that her answers were "slow delivered," and that she would not look directly at him. The officer administered the Horizontal Gaze Nystagmus ("HGN") test and the walk and turn test. When asked to also perform the one-leg stand test, appellant refused. After these tests, appellant was arrested and transported to the police station where she refused to take a breath test.
Appellant was charged with DUI in violation of R.C. 4511.19(A)(1) and speeding in violation of R.C. 4511.21. Appellant moved to suppress the officer's observations and the results of the field sobriety tests on the ground that the tests were not administered in strict compliance with the procedures established by the National Highway Traffic Safety Administration ("NHTSA") manual. Specifically, appellant argued that the officer failed to give her several specific instructions when conducting the HGN and walk and turn tests. Following a hearing on the motion, the trial court overruled appellant's motion to suppress on the ground that the HGN and the walk and turn tests were administered in compliance with State v. Homan, 89 Ohio St.3d 421, 2000Ohio-212.
The case proceeded to a jury trial. On August 28, 2003, a jury found appellant guilty of DUI in violation of R.C. 4511.19(A)(1). This appeal follows.
In her sole assignment of error, appellant argues that the trial court erred by not suppressing the results of the HGN and walk and turn tests. Appellant contends that the state failed to establish that the field sobriety tests were conducted in either strict or substantial compliance with standardized testing procedures.
To suppress evidence obtained as a result of a warrantless search or seizure, a defendant must raise the grounds on which the validity of the search or seizure is challenged with enough specificity to give the state notice of the basis for the challenge. Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph one of the syllabus. Once a defendant has made this initial showing, the state bears the burden of proof, including the burden of going forward with evidence, on the specific issues raised regarding the search or seizure. Id. at paragraph two of the syllabus; State v. Mixner, Warren App. No. CA2001-07-074, 2002-Ohio-180.
In the case at bar, appellant's motion to suppress was specific enough to put the state on notice that appellant's bases for suppression included whether the field sobriety tests were conducted properly and in compliance with standardized testing procedures: for each field sobriety test, appellant listed a number of very specific instructions the officer had failed to give her while administering the field sobriety tests. Appellant's motion and memorandum were therefore enough to shift the burden to the state to establish that, in this instance, the field sobriety tests were c
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