[Cite as State v. Burwell, 2010-Ohio-1087.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PUTNAM COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 12-09-06

        v.

EDWARD L. BURWELL,                                        OPINION

        DEFENDANT-APPELLANT.




                            Appeal from Putnam County Court
                             Trial Court No. 2009 TRC 0078

                                      Judgment Affirmed

                            Date of Decision:   March 22, 2010




APPEARANCES:

        Matthew A. Cunningham for Appellant

        Gary L. Lammers for Appellee
Case No. 12-09-06


PRESTON, J.

       {¶1} Defendant-appellant, Edward L. Burwell (“Burwell”), appeals the

Putnam County Court’s judgment overruling his motion to suppress evidence

seized as a result of a traffic stop. For the reasons that follow, we affirm.

       {¶2} Around 1:52 a.m. on May 23, 2009, Burwell was traveling north on

State Route 65 in the village of Ottawa, Putnam County, Ohio. (Aug. 12, 2009 Tr.

at 7). Ohio State Highway Patrolman Kingsinger was following Burwell’s vehicle

in a marked State Highway Patrol cruiser about eight to ten (8-10) car lengths

behind when he observed Burwell’s vehicle “travel off the right side of the edge

line, right [white] edge line, * * * and turn left into Blackthorn Drive.” (Id. at 6-7,

10). Trooper Kingsinger testified that it appeared as though Burwell was making a

wide right turn but then turned left onto Blackthorn Drive. (Id. at 9). Trooper

Kingsinger then activated his patrol car’s overhead lights and initiated a traffic

stop. (Id. at 12).

       {¶3} When Trooper Kingsinger approached Burwell’s vehicle, he

detected the smell of alcohol coming from the vehicle and noted that Burwell’s

eyes were “slightly glassy and bloodshot.” (Id.).         Trooper Kingsinger asked

Burwell to exit his vehicle and asked him to sit in his patrol car. (Id. at 13). Once

Trooper Kingsinger was seated in his patrol car with Burwell, he discovered that

“the odor of alcoholic beverage became stronger on his breath,” so Trooper



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Kingsinger asked Burwell if he had been drinking, and Burwell said he had “a

couple.” (Id.). Burwell consented to a horizontal gaze nystagmus (HGN) test,

which revealed a maximum score of six indicators. (Id. at 13-14, 16). Burwell

then consented to some divided attention skills tests, including the walk and turn

and the one-leg stand. (Id. at 17). When Burwell attempted the walk and turn test,

Trooper Kingsinger found that he demonstrated signs of impairment, including

that Burwell: failed to follow instructions, taking eight steps instead of nine steps,

stepped off the line, and swayed. (Id. at 18-19). When Burwell attempted the

one-leg stand, Burwell swayed and put his foot down once. (Id. at 20). At that

point, Burwell was placed under arrest for operating a vehicle under the influence

of alcohol. (Id. at 21).

       {¶4} Burwell was charged, in case no. 2009 TRC 00778, with operating a

vehicle under the influence of alcohol (OVI) in violation of R.C. 4511.19(A)(1), a

first violation within six (6) years; driving with a prohibited blood-alcohol-

concentration in violation of R.C. 4511.19(A)(1)(d), a first violation within six (6)

years; and, in case no. 2009 TRD 00779, with failure to drive within marked lanes

in violation of R.C. 4511.33. (Doc. No. 1).

       {¶5} On May 27, 2009, Burwell entered a plea of not guilty to the

charges. (Doc. No. 2). On July 10, 2009, Burwell filed a motion to suppress

evidence seized as a result of the traffic stop. (Doc. No. 18). On August 12, 2009,



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the motion came on for hearing, and, on August 14, 2009, the trial court overruled

the motion. (Doc. No. 28).

       {¶6} On September 1, 2009, Burwell withdrew his previously tendered

plea of not guilty and entered a plea of no contest to the charge of operating a

vehicle while under the influence in violation of R.C. 4511.19(A)(1). (Doc. No.

32).   The two other charges of operating with a prohibited blood-alcohol-

concentration and marked lanes violation were both dismissed. (Doc. No. 32).

The trial court found Burwell guilty of operating a vehicle while under the

influence and sentenced him. (Id.).

       {¶7} On September 30, 2009, Burwell filed a notice of appeal. (Doc. No.

34). Burwell now appeals raising two assignments of error for our review.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED WHEN IT OVERRULED
       BURWELL’S MOTION TO SUPPRESS EVIDENCE WHERE
       REASONABLE ARTICULABLE SUSPICION DID NOT
       EXIST FOR A TRAFFIC STOP OR TO DETAIN BURWELL.

       {¶8} In his first assignment of error, Burwell argues that the trial court

erred by overruling his motion to suppress evidence obtained as a result of the

traffic stop. Specifically, Burwell argues that crossing the white edge line without

evidence of erratic driving or concerns for his safety does not provide reasonable

articulable suspicion for a traffic stop, citing State v. Phillips, 3d Dist. No. 8-04-

25, 2006-Ohio-6338. Burwell also maintains that this case is distinguishable from


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State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, because:

he only crossed the fog line once and the defendant in Mays crossed the line twice;

he was not weaving within his lane as was the defendant in Mays; and the officer

here, unlike in Mays, initiated the traffic stop based on a “hunch or gut feeling.”

We disagree.

       {¶9} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶8. At a suppression hearing, the trial court assumes the role of

trier of fact and, as such, is in the best position to evaluate the evidence and the

credibility of witnesses. State v. Carter (1995), 72 Ohio St.3d 545, 552, 651

N.E.2d 965. When reviewing a ruling on a motion to suppress, deference is given

to the trial court’s findings of fact so long as they are supported by competent,

credible evidence. Burnside, 2003-Ohio-5327, at ¶8. With respect to the trial

court’s conclusions of law, however, our standard of review is de novo and we

must decide whether the facts satisfy the applicable legal standard. State v.

McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.

       {¶10} As this Court has stated before, in order to constitutionally stop a

vehicle, an officer must, at a minimum, have either: (1) a reasonable suspicion,

supported by specific and articulable facts, that criminal behavior has occurred, is

occurring, or is imminent; or (2) a reasonable suspicion, supported by specific and



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articulable facts, that the vehicle should be stopped in the interests of public

safety. State v. Moore, 3d Dist. No. 9-07-60, 2008-Ohio-2407, ¶10, citing State v.

Andrews, 3d Dist. No. 2-07-30, 2008-Ohio-625, ¶8, citing State v. Chatton (1984),

11 Ohio St.3d 59, 61, 463 N.E.2d 1237, certiorari denied by 469 U.S. 856, 105

S.Ct. 182, 83 L.Ed.2d 116; State v. Purtee, 3d Dist. No. 8-04-10, 2006-Ohio-6337,

¶9, citing State v. Norman (1999), 136 Ohio App.3d 46, 53-54, 735 N.E.2d 453.

       {¶11} An officer’s “reasonable suspicion” is determined based on the

totality of the circumstances. Moore, 2008-Ohio-2407, at ¶11, citing Andrews,

2008-Ohio-625, at ¶8, citing State v. Terry (1998), 130 Ohio App.3d 253, 257, 719

N.E.2d 1046, citing State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d

1271. ‘“Specific and articulable facts’ that will justify an investigatory stop by

way of reasonable suspicion include: (1) location; (2) the officer’s experience,

training or knowledge; (3) the suspect’s conduct or appearance; and (4) the

surrounding circumstances.” Purtee, 2006-Ohio-6337, at ¶9, citing State v.

Gaylord, 9th Dist. No. 22406, 2005-Ohio-2138, ¶9, citing State v. Bobo (1988), 37

Ohio St.3d 177, 178-79, 524 N.E.2d 489; State v. Davison, 9th Dist. No. 21825,

2004-Ohio-3251, ¶6.

       {¶12} This Court recently rejected arguments similar to those raised by

Burwell in State v. Anthony, 3d Dist. No. 13-09-26, 2009-Ohio-6717, ¶¶13-14.

Trooper Kingsinger testified that he initiated the traffic stop after Burwell drifted



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over the white edge [fog] line in violation of R.C. 4511.33. (Aug. 12, 2009 Tr. at

7-12, 24); (Joint Ex. 1). Trooper Kingsinger testified that both right tires of

Burwell’s vehicle drifted over the white edge (fog) line as he made a left-hand

turn. (Id. at 9). Trooper Kingsinger testified that it appeared as though Burwell

was making a wide right turn but then turned left onto Blackthorn Drive. (Id.).

Trooper Kingsinger further testified that he did not observe any debris or any

reason otherwise for the vehicle to have drifted over the white edge (fog) line, and

that he had a clear view of the incident. (Id. at 9-10). The Ohio Supreme Court

has held that “a traffic stop is constitutionally valid when a law-enforcement

officer witnesses a motorist drift over the lane markings in violation of R.C.

4511.33, even without further evidence of erratic or unsafe driving.” Mays, 2008-

Ohio-4539, at ¶25 (emphasis added) (abrogating State v. Phillips, 2006-Ohio-

6338). Based upon this observation, Trooper Kingsinger had probable cause, and

thus a reasonable articulable suspicion, to initiate the traffic stop; and therefore,

the traffic stop was constitutionally valid. Anthony, 2009-Ohio-6717, at ¶13, citing

Mays, 2008-Ohio-4539, at ¶¶16, 21, 24-25.

       {¶13} We are also not persuaded by Burwell’s attempts to distinguish this

case from State v. Mays, 2008-Ohio-4539. To begin with, the record does not

support his assertion that Trooper Kingsinger initiated the traffic stop based on a

“hunch or gut feeling.” Although Trooper Kingsinger testified that he turned on



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his video recording device prior to the R.C. 4511.33 violation based on a “gut

feeling,” he testified that he initiated the traffic stop based upon the marked lanes

violation. (Aug. 12, 2009 Tr. at 7-12, 24). Furthermore, our determination of

whether the traffic stop was supported by a reasonable articulable suspicion

depends upon the objective facts, not the officer’s subjective intentions or

motivations. State v. Vlachos, 3d Dist. No. 17-08-24, 2009-Ohio-915, ¶11, citing

Dayton v. Erickson (1996), 76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091. We are also

not persuaded by Burwell’s attempt to distinguish this case from Mays by arguing

that Trooper Kingsinger did not observe him weaving within his lane, and he only

crossed over the white edge line once.        The holding in Mays clearly states

otherwise. 2008-Ohio-4539, at ¶25 (“a traffic stop is constitutionally valid when a

law-enforcement officer witnesses a motorist drift over the [solid white edge (fog)

line] in violation of R.C. 4511.33, even without further evidence of erratic or

unsafe driving.”) (emphasis added).

       {¶14} Aside from Burwell’s violation of R.C. 4511.33, the evidence

presented at the suppression hearing demonstrated an additional, independent

reason justifying the stop. Officer Kingsinger testified that Burwell made what

appeared to be “a wide right turn, but he turned left.” (Aug. 12, 2009 Tr. at 9). A

review of the cruiser video tape, joint exhibit one (1), reveals that Burwell swung

his vehicle wide right over the white edge (fog) line to go left onto Blackthorn



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Drive. (Joint Ex. 1); (Aug. 12, 2009 Tr. at 7). Under these circumstances, Trooper

Kingsinger had a reasonable articulable suspicion to stop Burwell for violating

R.C. 4511.36(A)(2), for an improper left turn. See State v. Coles (June 7, 1996),

4th Dist. No. 95CA166; City of Brian v. Alwood (Sept. 14, 1979), 6th Dist. No.

WMS-79-4.1 Accordingly, even if the trial court’s reliance upon R.C. 4511.33, the

marked lanes statute, as a constitutional basis for the traffic stop was in error

(which we did not find), the trial court’s error would be harmless since Trooper

Kingsinger had an independent reason to initiate the traffic stop based upon

Burwell’s violation of R.C. 4511.36(A)(2). State v. Moore, 2008-Ohio-2407, at

¶17, citing State v. Haynes, 11th Dist. No. 2003-A-0055, 2004-Ohio-3514, ¶¶16-

17 (concluding that the trial court’s error was harmless because the officer had

testified to events, which he did not cite defendant for, that would have given him

probable cause to effectuate the traffic stop on defendant); State v. Molk, 11th

Dist. No. 2001-L-146, 2002-Ohio-6926 (concluding that even if appellant were

able to contradict the officer’s testimony regarding a speeding violation, the

officer would still have had a sufficient justification to initiate a stop due to

appellant’s smoking exhaust violation).




1
  Both of these cases cite R.C. 4511.36(B) instead of R.C. 4511.36(A)(2) as we have cited herein because
the statute was modified by S.B. 123 (eff. 1-1-04). The language of the former is, however, identical to the
later.


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        {¶15} Burwell’s first assignment of error is, therefore, overruled.

                            ASSIGNMENT OF ERROR NO. II

        THE TRIAL COURT ERRED WHEN IT OVERRULED
        BURWELL’S MOTION TO SUPPRESS ON THE BASIS
        THAT THE ARRESTING OFFICER DID NOT HAVE
        PROBABLE CAUSE TO ARREST BURWELL.

        {¶16} In his second assignment of error, Burwell argues that the trial court

erred in overruling his motion to suppress evidence flowing from the officer’s

improper detention, which resulted in his arrest for OVI.2 Specifically, Burwell

argues that the fact that Trooper Kingsinger smelled an unquantifiable amount of

alcohol from the vehicle—as opposed to from him, observed that his eyes were

slightly red and glassy, and that he admitted to drinking was insufficient to justify

his continued detention for field sobriety tests. As such, Burwell argues that any

evidence seized as a result of his continued detention was inadmissible; and

therefore, the trial court erred by overruling his motion to suppress on this basis.

We disagree.

        {¶17} “The scope and duration of an investigative stop must not exceed

what is necessary to complete the purpose for which the initial stop was made.”

State v. Lavender, 6th Dist. Nos. WD-06-020, WD-06-021, 2006-Ohio-6632, ¶14,

citing Florida v. Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d



2
 Although his assignment of error is worded as such, Burwell makes no argument with respect to a lack of
probable cause for his arrest. We will, therefore, limit our review to the issue of continued detention.


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229, and State v. Robinette (1997), 80 Ohio St.3d 234, 685 N.E.2d 762, paragraph

one of the syllabus. “In conducting an investigative traffic stop, an officer may

detain a motorist for a period of time sufficient to run a computer check on his

license, registration, and vehicle plates and to issue him a warning or a citation.”

State v. Rusnak (1997), 120 Ohio App.3d 24, 27, 696 N.E.2d 633, citing Delaware

v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660. “An officer,

however, cannot use the lawfulness of an initial stop to conduct a fishing

expedition for evidence of another crime.” Lavender, 2006-Ohio-6632, at ¶14,

citing State v. Bevan (1992), 80 Ohio App.3d 126, 130, 608 N.E.2d 1099.

Whether or not a detention is ‘reasonable’ depends upon the totality of the facts

and circumstances of each case. Bobo, 37 Ohio St.3d at 178.

       {¶18} Once an officer stops a vehicle for a traffic offense and begins the

process of obtaining the offender’s license and registration, the officer may then

proceed to investigate the detainee for operating a vehicle under the influence

(OVI) if the officer has a reasonable suspicion that the detainee may be intoxicated

based on specific and articulable facts, such as where there are clear symptoms

that the detainee is under the influence. State v. Evans (1998), 127 Ohio App.3d

56, 62-63, 711 N.E.2d 761, citing State v. Yemma (Aug. 9, 1996), 11th Dist. No.

95-P-0156.




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       {¶19} An officer’s request to perform field sobriety tests must be

separately justified by specific, articulable facts showing a reasonable basis for the

request. Evans, 127 Ohio App.3d at 62-63, citing Yemma, 11th Dist. No. 95-P-

0156. “Although the facts that served as the impetus for the stop may also assist

in providing this separate justification, additional articulable facts are necessary.”

Id.

       {¶20} Whether a law enforcement officer possessed reasonable suspicion

or probable cause to continue to detain an individual must also be examined in

light of the “totality of the circumstances.” State v. Cromes, 3d Dist. No. 17-06-07,

2006-Ohio-6924, ¶38, citing United States v. Arvizu (2002), 534 U.S. 266, 273,

122 S.Ct. 744, 151 L.Ed.2d 740. The totality of the circumstances test “allows

officers to draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information available to

them that ‘might well elude an untrained person.’” Id., citing Arvizu, 534 U.S. at

273, quoting United States v. Cortez (1981), 449 U.S. 411, 418, 101 S.Ct. 690, 66

L.Ed.2d 621.

       {¶21} Circumstances from which an officer may derive a reasonable,

articulable suspicion that the detained driver was operating the vehicle while under

the influence include, but are not limited to:

       (1) the time and day of the stop (Friday or Saturday night as
       opposed to, e.g., Tuesday morning); (2) the location of the stop


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       (e.g., whether near establishments selling alcohol); (3) any
       indicia of erratic driving before the stop that may indicate a lack
       of coordination (speeding, weaving, unusual braking, etc.); (4)
       whether there is a cognizable report that the driver may be
       intoxicated; (5) the condition of the suspect’s eyes (bloodshot,
       glassy, glazed, etc.); (6) impairments of the suspect’s ability to
       speak (slurred speech, overly deliberate speech, etc.); (7) the
       odor of alcohol coming from the interior of the car, or, more
       significantly, on the suspect’s person or breath; (8) the intensity
       of that odor, as described by the officer (“very strong,” “strong,”
       “moderate,” “slight,” etc.); (9) the suspect’s demeanor
       (belligerent, uncooperative, etc.); (10) any actions by the suspect
       after the stop that might indicate a lack of coordination
       (dropping keys, falling over, fumbling for a wallet, etc.); and (11)
       the suspect’s admission of alcohol consumption, the number of
       drinks had, and the amount of time in which they were
       consumed, if given.

Evans, 127 Ohio App.3d at 63, Fn. 2. “All of these factors, together with the

officer’s previous experience in dealing with [impaired] drivers, may be taken into

account by a reviewing court in determining whether the officer acted reasonably.

No single factor is determinative.” Id.

       {¶22} In relevant part, the record indicates that Burwell was stopped

around 1:52 a.m. on May 23, 2009, which was the early hours of Saturday

morning, after Trooper Kingsinger observed Burwell drift over the right edge (fog)

line while swinging right to make a wide turn to the left from State Route 65 onto

Blackthorn Drive. (Aug. 12, 2009 Tr. at 7-9); (Joint Ex. 1).        After Trooper

Kingsinger approached Burwell’s vehicle, he identified the smell of an alcoholic

beverage coming from inside the vehicle and noticed that Burwell’s eyes appeared



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to be “slightly glassy and bloodshot.” (Aug. 12, 2009 Tr. at 12). Burwell’s speech

was not noticeably slurred or overly deliberate, and Burwell cooperated with

Trooper Kingsinger when asked to provide his driver’s license and registration.

(Id. at 12-13); (Joint Ex. 1). Trooper Kingsinger testified that, after Burwell was

seated in his patrol cruiser, “the odor of alcoholic beverage became stronger upon

[Burwell’s] breath, and then [he] asked [Burwell] if he had consumed any

alcohol.” (Aug. 12, 2009 Tr. at 13); (Joint Ex. 1). Burwell admitted that he had “a

couple earlier,” and that he had just come back from playing for a band. (Aug. 12,

2009 Tr. at 13); (Joint Ex. 1).      After Burwell made this admission, Trooper

Kingsinger asked Burwell if he could conduct an HGN test, and Burwell

consented to the test. (Aug. 12, 2009 Tr. at 13); (Joint Ex. 1).

       {¶23} The facts here demonstrate that Burwell was stopped after driving

over the white edge (fog) line when turning wide right for a left-hand turn in the

early hours (1:52 a.m.) of Saturday morning after he had just returned from

playing in his band. (Aug. 12, 2009 Tr. at 7-13); (Joint Ex. 1). We also note,

although not mentioned during the hearing, that it appeared that Burwell’s vehicle

was slightly weaving within its lane of travel as well. (Joint Ex. 1). In addition to

that, Trooper Kingsinger noted that Burwell’s vehicle—and, more importantly,

Burwell himself—smelled of an alcoholic beverage, and that Burwell’s eyes were

“slightly bloodshot and glassy.” (Aug. 12, 2009 Tr. at 12-13). Finally, when asked



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if he had been drinking, Burwell admitted to drinking “a couple earlier,” after

playing with his band. (Id. at 13). After reviewing the entire record, including the

transcript of the suppression hearing and the jointly admitted video of the traffic

stop, as well as those factors outlined in Evans, supra, we cannot conclude that the

trial court erred in finding that Burwell’s continued detention was constitutionally

permissible.

       {¶24} Burwell’s citation to various appellate court decisions fails to

persuade us otherwise. The Court in State v. Taylor, found that “[t]he act of

speeding at a nominal excess coupled with the arresting officers’ perception of the

odor of alcohol, and nothing more, did not furnish probable cause to arrest the

defendant for driving under the influence.” (1981), 3 Ohio App.3d 197, 197-98,

444 N.E.2d 481 (emphasis in original). The Court in Taylor also expressed the

fact that the officer in that case did not even specify whether the odor of alcohol

was “pervasive” or “strong,” which it indicated may have changed the outcome of

the case. 3 Ohio App.3d at 198. Here, there was more than Trooper Kingsinger’s

perception of the odor of alcohol so this case is clearly distinguishable from

Taylor. Likewise, this case is distinguishable from State v. Dixon and State v.

Reed, because Burwell, unlike the defendants in those cases, was initially stopped

when he drifted over the white edge (fog) line, which, as a moving violation, is

indicia of impaired driving ability. (Dec. 1, 2000), 2nd Dist. No. 2000-CA-30



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(suspected tinted window violation); 7th Dist. No. 05 BE 31, 2006-Ohio-7075, ¶2

(suspected tinted window and faulty exhaust violations). The Court in State v.

Spillers found that weaving within one’s lane, the “slight” odor of alcohol, and the

admission of consuming a couple beers was insufficient to justify the

administration of field sobriety tests. (Mar. 24, 2000), 2nd Dist. No. 1504.

Burwell, however, was more than weaving within his own lane; rather, he drove

over the marked lanes. Furthermore, Trooper Kingsinger noted that the odor of

alcohol was “stronger” when Burwell left his vehicle. Accordingly, this case is

also distinguishable from Spillers.    Aside from that, as the Court in State v.

Downing noted, “the additional element of erratic driving or specifically a

“strong” odor of alcohol seem[s] to tip the scales in favor of allowing the tests.”

2nd Dist. No. 2001-CA-78, 2002-Ohio-1302. Here there was evidence of erratic

driving—crossing over the white edge (fog) line—and a “stronger” odor of

alcohol. Therefore, we find this case distinguishable from those Burwell cites.

       {¶25} For all the foregoing reasons, we overrule Burwell’s second

assignment of error.

       {¶26} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, J., concurs in Judgment Only.
SHAW, J., concurs.


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