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On February 28, 2017, the Tenth District Court of Appeals issued a decision affirming the Franklin County Municipal Court’s ruling suppressing evidence and invalidating an OVI arrest, due to the lack of probable cause.
In the case of State v. Bracken, 2017-Ohio-721, the Tenth District issued a rather brief decision explaining its reasoning. The relevant portions state as follows:
{¶ 3} In the early morning hours of December 6, 2015, Cody D. Bracken was clocked at a speed of 61 m.p.h. in a posted 45 m.p.h. zone and pulled over by Sergeant Jermaine Thaxton (“Sgt. Thaxton”) of the Ohio State Highway Patrol.
{¶ 4} Sgt. Thaxton then approached Bracken’s vehicle. Sgt. Thaxton felt that he noticed a moderate odor of alcohol coming from the vehicle. He viewed Bracken’s eyes as being bloodshot and glassy. Sgt. Thaxton felt Bracken’s face was flushed. Sgt. Thaxton acknowledged that he did not shine a light on Bracken’s face to enable or increase his ability to make such observations.
{¶ 5} Bracken acknowledged that he had consumed two beers. Sgt. Thaxton had Bracken perform some field sobriety tests, the first of which was the horizontal gaze nystagmus test (“HGN”). Bracken was viewed as displaying six clues which indicated alcohol consumption. Sgt. Thaxton felt that Bracken had an odor of alcohol on his breath, but no more than a moderate odor. The video of the encounter does not enable us to evaluate how the HGN test was conducted or its results.
{¶ 6} The next test administered by Sgt. Thaxton was the walk-and-turn test. Sgt. Thaxton later testified that Bracken displayed five of the eight possible clues indicating alcohol consumption to an unacceptable level. Sgt. Thaxton viewed starting the walkand-turn test before being told to start walking as an indication of being impaired.
{¶ 7} Another test administered was a test in which Bracken was requested to recite a portion of the alphabet. Bracken allegedly skipped a letter.
{¶ 8} The final test administered was a one-leg stand test. Sgt. Thaxton later testified that Bracken displayed three of four possible clues indicating an illegal blood alcohol level. The video of the interaction between Sgt. Thaxton and Bracken does not fully support Sgt. Thaxton’s view.
{¶ 9} Bracken was arrested and charged with operating a motor vehicle while under the influence of alcohol (“OVI”) and/or a drug of abuse.
{¶ 10} A judge in the Franklin County Municipal Court was assigned to the case. Defense counsel for Bracken filed a motion to suppress evidence. No. 16AP-435 3
{¶ 11} An evidentiary hearing was conducted on the motion at the conclusion of which the trial court judge granted the motion, heavily relying on the video of the encounter recorded by Sgt. Thaxton’s cruiser camera which the judge felt was, in some particulars, inconsistent with Sgt. Thaxton’s testimony.
{¶ 12} The trial court found that Sgt. Thaxton had a reasonable basis for pulling Bracken’s vehicle over based on the speed it was travelling. The judge, however, found that the video of the field sobriety tests did not support arresting Bracken on a charge of OVI, in part, because the video could be viewed as contradicting Sgt. Thaxton’s recollection of how Bracken performed.
{¶ 13} One of the factors considered by the trial court was the fact that Bracken displayed no erratic driving other than his speed. Sgt. Thaxton testified, however, that speed is not considered to be an indication of operating a vehicle under the influence. Otherwise, the trial court failed to make findings. We have reviewed the evidence, but our decision should not be construed to say the trial court is not required to make findings.
{¶ 14} We have the dash camera video before us in the appellate record. We cannot disagree with the trial court’s finding that probable cause to arrest is not demonstrated by the video. Probable cause to arrest is to be based on the totality of the circumstances.
{¶ 15} Bracken had no trace of slurred speech. He walked heel to toe with no noticeable impairment. He apparently was marked down because he started a test sooner than the Sergeant wanted, but Bracken apparently started the test as soon as he understood what was being requested. There is a serious question of whether or not he put his foot down during the one-leg stand.
{¶ 16} As a result of the foregoing, we cannot find that the trial court’s findings was against the totality of the circumstances. We, therefore, overrule the sole assignment of error. We affirm the judgment of the Franklin County Municipal Court.
What does this decision tell us? This case is an excellent example of how a police video can be invaluable in challenging an OVI stop, the administration of Field Sobriety Tests, and the credibility of the arresting officer. Before the regular use of police video cameras, it would have been extremely difficult to challenge the credibility of a Sgt. Thaxton. It would have most likely been the word of the motorist versus that of the police officer. In most “he said, she said” situations, the trial court would believe the word of the officer. Video evidence levels the “playing field”. Secondly, this case reinforces that speeding alone is not an indication of operating a vehicle under the influence. More evidence was needed. Once the officer’s credibility was called into question by the video, the court was not willing to believe anything alleged by the officer that was not recorded on the video.
Just like the rest of us, law enforcement officers are not immune from making an occasional mistake in the performance of their duties. Sometimes the mistakes of law enforcement officers can result in serious criminal charges and consequences. An OVI conviction can result in jail time, job loss, inability to obtain new employment, suspension of a professional license, etc … An experienced criminal defense attorney can challenge evidence that has been unlawfully obtained. If you or someone you know is being prosecuted for a criminal offense contact Criminal Defense Attorney Jonathan Horwitz at Horwitz & Horwitz, LLC, located in Centerville, Ohio.
