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State v. Economos10/21/2005
{ } Appellant, Eric J. Economos, appeals from the judgment of the Warren Municipal Court denying his motion to suppress evidence for lack of probable cause to arrest him on the charge of driving under the influence .
{ } At 2:45 a.m. on March 9, 2004, appellant was stopped by Trooper Bruce Zuchowski for failure to have his headlights activated. Upon approaching appellant's vehicle, Trooper Zuchowski testified appellant was agitated about being pulled over. The officer informed appellant his lights were not activated which appellant explained was a "manufacturer's defect." During the exchange, the officer noticed a heavy odor of alcohol about appellant's person. Zuchowski also noted appellant's eyes were glassy and appeared dilated and red. Appellant relayed he had just returned from a trip to Las Vegas earlier in the day during which he had consumed alcohol. Appellant also admitted, prior to being stopped, he was at BW3s, a local bar/restaurant, where he had met some friends and consumed three beers.
{ } The officer proceeded to administer three standard field sobriety tests: The Horizontal Gaze Nystagmus test (HGN), the One Leg Stand test, and the Walk and Turn test. The officer testified he had received training to administer these tests from the State Patrol Academy in Columbus, Ohio. In Zuchowski's estimation, appellant failed each of the three tests. Zuchowski then placed appellant under arrest for operation of a motor vehicle in violation of R.C. 4511.19. Appellant was transported to the Howland Township Police Station where he consented to provide a breathalyzer test which registered his blood alcohol content at .160. Trooper Zuchowski testified he was a "certified senior operator" of the breathalyzer machine.
{ } On March 11, 2004, appellant filed a motion to suppress all evidence. In his motion, appellant argued Trooper Zuchowski lacked probable cause to arrest him for driving under the influence of alcohol. In particular, appellant moved the court to suppress all evidence for (1) lack of probable cause to arrest; (2) failure to administer the field sobriety tests in the manner approved by the "Ohio Department of Health" and case law; and (3) defective and improperly utilized breath testing equipment.
{ } On August 20, 2004, a suppression hearing was held during which the officer testified to the above facts. The officer testified, at length, to the method and manner he used to administer the field sobriety tests. The officer also outlined the various indicia of intoxication he looks for when administering the tests. On November 16, 2004, the trial court overruled appellant's motion to suppress; however, the trial court did not rely upon the field sobriety tests or the breathalyzer results. Rather, the court concluded the officer had probable cause to arrest appellant for driving under the influence of alcohol without reference to the test results. Appellant eventually pleaded no contest to the charge and was found guilty.
{ } Appellant asserts the following assignment of error for our review:
{ } "Does the prosecution in a DUI, ORC Sec. 4511.19 case have the burden of establishing the standards of the three (3) probable cause tests as outlined in the National Highway Traffic Safety Administration (NHTSA) manual in a motion to suppress the evidence hearing."
{ } Appellant contends that the state was required to introduce the NHTSA manual to establish the general standards for proper compliance with the field sobriety tests utilized by the arresting officer. Because the state failed to do so, appellant argues the evidence issuing from these tests should have been suppressed.
{ } Before we addre
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