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State v. Bassham7/7/2000
Rendered on the 7th day of July , 2000.
The State of Ohio argues in this appeal that the trial court erred in suppressing certain evidence it desires to use to prosecute Brian Bassham for driving under the influence of alcohol. Bassham was charged with DUI and failing to yield the right-of-way. Bassham contends that the State has forfeited its right to appellate review of the suppression ruling by failing to timely appeal in accordance with Crim.R. 12(J). Bassham urges us to dismiss the appeal. The State did not file a reply brief responding to Bassham's waiver argument, but the State did respond to the waiver argument at oral argument on June 26, 2000.
Because of the unusual procedural posture of this case, we reject Bassham's waiver argument and sustain the State's assignment of error that states:
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT EXCLUDED EVIDENCE LEGALLY OBTAINED BY THE STATE AND NOT IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL OR STATUTORY RIGHTS.
Bassham's motion to suppress was heard by the trial court's magistrate. The background facts and critical ruling are contained in her December 31, 1999 decision which reads in pertinent part as follows:
Based upon the evidence presented, the Magistrate finds that on September 3, 1999, at approximately 1:45 a.m. Officer Topiah of the Beavercreek Police Department was proceeding northbound on Esquire Drive past Wallaby's Restaurant when a blue Cherokee 4-door pulled in front of him causing him to brake quickly. Officer Topiah proceeded to follow the Defendant in the blue Cherokee on Esquire Drive to Lakeview Road to Fairfield Road. While following the Defendant Officer Topiah did not observe any further driving infractions other than a failure to use a turn signal while turning from Esquire Drive to Lakeview Road.
Officer Topiah then stopped the Defendant for failure to yield from a private drive. On approaching the Defendant the officer observed that the Defendant's eyes were glassy and bloodshot and he detected a slight odor of alcohol from the Defendant's breath. As a result of these observations Officer Topiah requested the Defendant to perform some field sobriety tests, to which the Defendant consented.
The Defendant performed the horizontal gaze nystagmus test, the one-leg stand, and the walk-and-turn test. On the horizontal gaze nystagmus test the officer observed six clues, thus, failing the Defendant. However, on the one-leg stand and the walk-and-turn test, the officer only observed one clue as to each test, thus, indicating that the Defendant passed those tests. The officer then placed the Defendant under arrest for driving under the influence .
In Defendant's Motion, he argues that the officer did not have a reasonable and articulable suspicion to stop the Defendant and that the officer lacked probable cause to arrest the Defendant. The remainder of the Motion was withdrawn by the Defendant at the hearing.
The Magistrate finds that the officer had a reasonable and articulable suspicion to stop the Defendant. The standard in regard to this issue is whether the officer had a reasonable suspicion, based on articulable facts, that the driver of the vehicle is committing or has committed, a criminal offense, including a traffic offense. See, State v. Richardson (1994), 94 Ohio App.3d 501. The Magistrate finds that Officer Topiah observed the Defendant's vehicle proceed from a private drive from Wallaby's Restaurant onto Esquire Drive requiring the officer to brake in order to prevent an accident with the Defendant's vehicle. Officer Topiah further observed the Defendant fail to utilize a turn signal when turning from Esqu
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