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State v. Robinson9/28/2001
OPINION Rendered on the 28th day of September, 2001.
Michelle Robinson is appealing from her conviction and sentencing for driving under the influence in violation of R.C. 4511.19(A)(6) by the Municipal Court of Vandalia, Ohio. She initially filed a motion to suppress any statements made by her at the scene, the result of an HGN test, and the results of the breathalyzer test. A hearing was held before a magistrate on this motion. The magistrate did suppress the HGN test result, but overruled the motion on the defendant's statements issue and the results of the breathalyzer test. We first note that none of these three issues are before this court on appeal. The only issue before this court is the one raised by the appellant in her sole assignment of error, to-wit:
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT FOR A VIOLATION OF O.R.C. 4511.19(A)(6) BECAUSE THERE WAS NO EVIDENCE OF A TEMPORAL NEXUS OR CORRELATION BETWEEN THE OPERATION OF THE VEHICLE AND INTOXICATION.
While this issue, the subject of the assignment of error, was not raised by counsel for defendant in the motion to suppress, it was, in fact, raised verbally to the trial court at the conclusion of the hearing before the trial court (not before the magistrate) held subsequently to the magistrate's hearing. (1/18/01 Hearing, Tr. 22-24). Thus, it was preserved in the record and is properly before us.
The facts regarding the issue raised by the assignment of error are ably set forth in the magistrate's decision, as follows:
This matter came on for hearing on Defendant's Motion to Suppress. Based on the testimony presented, the exhibits admitted into evidence and the credibility of the witnesses, the operative facts and applicable law are found to be as follows. On September 28, 2000 at approximately 3:15 p.m., Deputy Tom Combs and Deputy Zern, both of the Montgomery County Sheriff's Department, were dispatched to a location on Riverside Drive within this Court's jurisdiction, on the report that a vehicle had gone off the road. Upon arrival, Deputy Combs found the Defendant in a vehicle that was pulled into a parking space in an apartment parking lot. The vehicle bore damage to its front end and windshield. Both front airbags had deployed inside the vehicle. He also observed tire marks indicating where the vehicle has gone off the road and a parking sign that had been leveled to the ground when run over.
Deputy Combs spoke with the Defendant, asking for her driver's license and proof of insurance. Although she complained of no injuries to the Deputy, she did not immediately respond to his request and he had to repeat it three to four times before she attempted to comply. There were no visible injuries to the Defendant and she refused any medical treatment. During this initial conversation, the Deputy, who found the Defendant to act confused, and sleepy, detected a moderate odor of an alcoholic beverage about her person, and observed her eyes to be glassy and her speech slurred. Throughout this interlude Defendant stated that she did not know what she had hit and that she had to go pick up her child at childcare. Wishing to have a Horizontal Gaze Nystagmus (HGN) test performed on the Defendant, and not being certified in such testing, Deputy Combs called for backup: someone certified to administer the HGN. Pursuant to that call, Deputy Rodney Ables arrived at the scene. He proceeded to explain, and then conduct, the HGN with Defendant displaying all six clues.
Deputy Ables also observed that the Defendant had a "moderate" odor of an alcoholic beverage about her person, had slurred speech, and eyes that appeared glassy and bloodshot. When inquiry was made
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