Thursday, October 20, 2011

DUI Law - Ohio Says Reasonable Suspicion Means More than Mere Odor

In State of Ohio v. Santiago, Slip Copy, 2011 WL 4863973 (Ohio App. 2 Dist.), 2011 -Ohio- 5292, the defendant was arrested for DUI and during an inventory search drugs were found in the glovebox. On appeal the defendant contested, inter alia, the basis for the request to submit to field sobriety testing. The defendant agreed that the initial stop for a minor traffic offense (driving left of center) was lawful, but he contended that the additional request for the performance of filed sobriety tests was not supported by ample reasonable suspicion. The Ohio Court first examined precedent:

"In the cases upon which Santiago relies, we have held that an odor of alcohol, coupled with a de minimus traffic violation, glassy or bloodshot eyes, and an admission to having consumed one or two beers, was insufficient to create a reasonable articulable suspicion of driving under the influence and therefore to justify further detention in order to conduct field sobriety tests. Spillers, supra; State v. Dixon (Dec. 1, 2000), Greene App. No.2000–CA–30. See, also, State v. Swartz, Miami App. No.2008CA31, 2009–Ohio–902. This court has held, however, that a strong odor of an alcoholic beverage, without other significant indicia of intoxication, may be sufficient to provide an officer with reasonable suspicion of driving under the influence. See State v. Marshall, Clark App. No.2001CA35, 2001–Ohio–7081 (holding that “strong” odor of alcohol, coupled with high speed and red eyes, created reasonable suspicion justifying field sobriety tests); State v. Schott (May 16, 1997), Darke App. No. 1415 (holding that a strong odor of alcohol alone can create reasonable, articulable suspicion of intoxication adequate to require an individual to submit to field sobriety tests).

"Whether an officer had reasonable articulable suspicion to administer field sobriety tests is a “very fact-intensive” determination. State v. Wells, Montgomery App. No. 20798, 2005–Ohio–5008, ¶ 9. We determine the existence of reasonable suspicion of criminal activity by evaluating the totality of the circumstances, considering those circumstances “through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.” State v. Heard, Montgomery App. No. 19323, 2003–Ohio–1047, ¶ 14, quoting State v.. Andrews (1991), 57 Ohio St.3d 86, 87–88."

The court then recited the applicable facts in the instant appeal:

"At the suppression hearing, Officer Kunkleman testified that he observed Santiago “driving left of center, driving down the middle of the roadway” in the early morning hours of December 6, 2009; there were two passengers in the car. Kunkleman followed the car through several turns in a residential area, but did not observe any additional traffic violations. The car pulled over twice, but no one got out, a circumstance that Kunkleman found “suspicious.” When one person did get out of the car and walk between houses, Kunkleman decided to initiate contact with the driver (Santiago). Kunkleman testified that Santiago's eyes were “tired” and “glassy” and that an “odor of alcohol” was coming from the vehicle. While Santiago was in the car, Kunkleman could not determine whether the odor was coming from Santiago or from his passenger. Santiago denied that he had been drinking, but Kunkleman observed a bottle of gin in the back seat; the bottle was half empty but capped, and the passenger claimed ownership of the bottle of gin. Santiago attempted to put his keys back in the ignition as if to start the car while talking with Kunkleman, and he argued with Kunkleman about getting out of the car, although he eventually did so. When Santiago stepped out of the vehicle at Kunkleman's request, Kunkleman determined that he (Kunkleman) could “smell alcohol on, an alcoholic beverage on his breath now, or the odor of an alcoholic beverage” on Santiago."

The court then concluded that reasonable suspicion existed:

"The odor of an alcoholic beverage emanating from Santiago's vehicle, the bottle of alcohol visible within the vehicle, Santiago's tired and glassy eyes, his traffic violation and suspicious behavior in pulling off the road two times, and his somewhat uncooperative attitude toward Officer Kunkleman justified further investigation. Moreover, when Santiago exited the vehicle, Kunkleman was able to determine that he (Santiago)—independent of the car or someone else in the car—smelled of an alcoholic beverage. Under the totality of the circumstances, Officer Kunkleman had a reasonable articulable suspicion that Santiago was driving under the influence, which justified his further detention for field sobriety tests.

The opinion also noted that other Ohio courts have similarly held that certain traffic violations, coupled with glassy eyes, an odor of alcohol, and open or partially consumed alcohol inside a vehicle created a reasonable articulable suspicion justifying further investigation. See State v. Purtee, Logan App. No. 8–04–10, 2006–Ohio–6337; Strongsville v. Minnillo, Cuyahoga App. No. 80948, 2003–Ohio–162.

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