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City of Eastlake v. Pehar11/19/2004
This appeal arises from the Willoughby Municipal Court, wherein appellant, Brian Pehar ("Pehar"), pled guilty of driving under the influence of alcohol.
{ } The following facts were presented at the suppression hearing. At approximately 11:30 p.m. on February 4, 2003, Pehar was traveling on Lakeshore Boulevard in Eastlake, Ohio, on his way home. Lt. Jeff Herron of the Eastlake Police Department observed Pehar's vehicle travel off the right side of the road, across the bicycle path, and onto the shoulder. He noted that the vehicle traveled in this manner for approximately seventy-five feet. After this observation, Lt. Herron followed Pehar for approximately one-and-one-half miles and noted that Pehar was following the vehicle ahead of him too closely to have stopped within an assured clear distance.
{ } Based upon these observations, Lt. Herron activated his lights and pulled the vehicle over. As Lt. Herron approached the vehicle, he noted that the window was still rolled up. He knocked on the window, and Pehar lowered it about one-half inch. Lt. Herron testified that Pehar had "a mouthful, probably five or six breath mints inside his mouth." He also observed that Pehar's face was reddened and his speech was slurred. Lt. Herron requested Pehar's driver's license and observed that Pehar's reaction was slow as he was looking for his license.
{ } Lt. Herron asked Pehar to step out of the vehicle to perform field sobriety tests. Lt. Herron administered the one-leg stand, the walk-and-turn test, and the horizontal gaze nystagmus test (HGN). Lt. Herron testified that Pehar failed both the one-leg stand, and the walk-and-turn test, and that he received five clues on the HGN, indicating intoxication. Lt. Herron arrested Pehar for driving under the influence.
{ } On March 11, 2003, Pehar filed a motion to suppress, contending that Lt. Herron lacked probable cause to arrest him. A hearing on the motion was held on April 1, 2003. The trial court denied the motion in a written judgment entry dated April 10, 2003. The matter was set for trial on May 16, 2003. On May 13, 2003, Pehar filed a motion for a continuance in order to allow an expert witness to testify on his behalf. The trial court denied the continuance on May 14, 2003. Pehar subsequently pled no contest to the DUI charge.
{ } The trial court found Pehar guilty and sentenced him to ninety days in jail, with eighty-five days suspended, a one hundred eighty-day suspension of his driver's license, a $350 fine, and placed him on one year of probation. On May 19, 2003, Pehar filed a motion to stay execution of sentence pending appeal, which the trial court granted.
{ } Pehar presents two assignments of error on appeal. The first assignment of error is:
{ } "The trial court erred in denying appellant's motion to suppress as the officer lacked probable cause to make a warrantless arrest of appellant."
{ } In his first assignment of error, Pehar contends that his motion to suppress was improperly denied as the officer did not have reasonable suspicion to believe that he had committed a traffic violation or probable cause to believe that he was driving under the influence of alcohol.
{ } In order to conduct an investigative stop of a motor vehicle, the police officer must have a reasonable suspicion that the motorist is engaged in criminal activity, or that the motorist is operating his vehicle in violation of the law.*fn1 In evaluating the propriety of the stop, the reviewing court must consider the totality of the surrounding circumstances, as "viewed through the eyes of the reasonable and prudent police officer on the scene who must react to the events as they unfold."*fn2
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