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State v. Horn6/7/2005
JUDGMENT: Affirmed.
JUDGES: Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite
{ } This matter comes for consideration upon the record in the trial court and the parties' briefs. Appellant Jill Horn appeals the decision of the Western Division County Court, Belmont County, Ohio finding her guilty of one count of Driving Under the Influence in violation of R.C. 4511.19(A)(1)/(A)(4). Horn challenges her conviction and sentence on four grounds.
{ } First, Horn claims that the BAC test results were skewed by her ingestion of a coughdrop and her use of an albuterol inhaler. Second, Horn argues that the arresting officer did not have reasonable suspicion to initiate a traffic stop of her vehicle. Third, she maintains that her trial counsel rendered ineffective assistance of counsel. And finally, Horn alleges that the trial court failed to comply with Criminal Rule 32 when sentencing her. Because none of these claims have merit, we affirm the judgment of the trial court.
Facts
{ } On February 7, 2004, Officer Wright observed Horn traveling in her vehicle on Route 40. From visual observation, he believed her speed to be approximately 55 miles per hour when she passed his car. Because she was in a 45 mile per hour zone, Wright followed Horn and began pacing her until they reached the intersection at Route 149. After Wright paced her at 60 miles per hour, he witnessed Horn make an improper turn at the intersection.
{ } Soon after witnessing the improper turn, Wright pulled over Horn's car. Because he noticed the smell of alcohol on Horn's breath, Wright administered field sobriety tests. Wright arrested Horn for driving under the influence and transported her to the St. Clairsville highway patrol barracks. While traveling in the patrol car, Horn kept a cough drop in her mouth. When they arrived at the barracks, Horn then asked to use her inhaler. Wright allowed her to do this. He then waited twenty-nine minutes and performed a BAC test, which she failed. Horn was then charged with Driving Under the Influence.
{ } Horn filed a Motion to Suppress based upon the lawfulness of the initial stop and the allegedly inaccurate results of the BAC. Because the motion was overruled by the trial court, Horn pled guilty to the single count of driving under the influence and was sentenced accordingly. It is from that judgment that Horn now timely appeals.
Twenty-minute Observation Period
{ } As her first of four assignments of error, Horn asserts:
{ } "Intervening acts caused the BAC test results to be analyzed in a manner contrary to the purpose of the Department of Health Guidelines."
{ } Horn claims the BAC test should be suppressed based upon her ingestion of a cough drop and use of her albuterol inhaler prior to taking the test.
{ } This court has previously concluded on numerous occasions that our standard of review with respect to a motion to suppress is limited to determining whether the trial court's findings are supported by competent, credible evidence. State v. Lloyd (1998), 126 Ohio App.3d 95, 100; State v. Winand (1996), 116 Ohio App.3d 286, 288, citing Tallmadge v. McCoy (1994), 96 Ohio App.3d 604, 608. Such a standard of review is appropriate as, " n a hearing on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate the credibility of witnesses." State v. Hopfer (1996), 112 Ohio App.3d 521, 548 quoting State v. Venham (1994), 96 Ohio App.3d 649, 653.
{ } As a reviewing court, we must accept the trial court's factual findings and
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