[Cite as State v. Parks, 2014-Ohio-1592.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
MEGAN K. PARKS                               :       Case No. 13-CA-78
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Municipal Court, Case No.
                                                     12-TRC-08828



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    April 11, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

J. MICHAEL KING                                      ROBERT E. CALESARIC
Assistant Law Director                               35 South Park Place, Suite 150
City of Newark                                       Newark, OH 43055
40 West Main Street, 4th Fl.
Newark, OH 43055
Licking County, Case No. 13-CA-78                                                           2

Baldwin, J.

        {¶1}   Appellant Megan K. Parks appeals a judgment of the Licking County

Municipal Court overruling her motion to dismiss and convicting her of operating a motor

vehicle while under the influence of alcohol (R.C. 4511.19(A)(1)(a)). Appellee is the

State of Ohio.

                             STATEMENT OF FACTS AND CASE

        {¶2}   At 3:00 a.m. on August 5, 2012, Officer Colles of the Pataskala City Police

Department was on routine patrol in uniform and driving a marked patrol vehicle

equipped with a camera mounted on the windshield. Colles was traveling eastbound on

Broad Street in the area of Etna Parkway when he passed appellant driving westbound.

Colles observed the tire of appellant’s vehicle over the right side of the white or “fog”

line on the roadway, to the extent that he described the line as between the two front

tires of the vehicle.

        {¶3}   Colles turned around and caught up to appellant, activating his overhead

lights. Appellant had pulled into a residential driveway and stopped, turning off her

lights, despite the fact that she did not live there. Colles approached the driver’s side of

the vehicle, explained the reason for the stop, and asked for appellant’s information.

Detecting a slight odor of an alcoholic beverage, Colles asked appellant if she had had

anything to drink, and she said no. Colles asked her to say the alphabet and noted she

slurred a few letters and skipped some letters. Appellant also had bloodshot, glassy

eyes.

        {¶4}   Colles asked appellant to step out of the vehicle and proceeded to

administer a series of standardized field sobriety tests (SFSTs). Once appellant was
Licking County, Case No. 13-CA-78                                                          3


outside the vehicle, Colles noted a more distinct odor of an alcoholic beverage about

her person.

      {¶5}    Colles was trained in the administration of SFSTs in accord with

guidelines from the National Highway Traffic Safety Administration (NHTSA).

      {¶6}    Appellant first submitted to the horizontal gaze nystagmus (HGN) test, and

Colles testified that he observed six out of six possible clues of impairment. Next,

appellant performed the walk-and-turn test, on which she indicated three clues of

impairment. Finally, on the one-leg stand test, Colles noted three clues of impairment.

      {¶7}    Appellant was placed under arrest for O.V.I and later refused to submit to

a breath test. Colles further testified he read appellee the BMV 2255 form and

Mirandized her. At some point after he requested that she take a breath test, and he

made her aware of the legal implications of refusing to do so, appellant asked to call a

lawyer. Colles testified he did not permit her to call a lawyer.

      {¶8}    Appellant was charged by uniform traffic ticket with one count of O.V.I.

pursuant to R.C. 4511.19(A)(1)(a) and one count of a marked lanes violation pursuant

to R.C. 4511.33. She entered pleas of not guilty and filed a motion to suppress

evidence flowing from the traffic stop and resulting arrest. A hearing was held and the

trial court sustained the motion in part and overruled it in part. The trial court

suppressed the portion of the HGN test involving the onset of nystagmus at maximum

deviation, finding the officer did not conduct that portion of the test in substantial

compliance with NHTSA protocols. The trial court also suppressed the evidence that

appellant refused to submit to a breath test, finding that her request to speak with an

attorney when asked to take a breath test did not constitute a refusal.
Licking County, Case No. 13-CA-78                                                            4


      {¶9}    The State appealed the trial court’s suppression judgment to this Court.

The state assigned two errors: (1) the trial court erred in suppressing the maximum

deviation portion of the horizontal gaze nystagmus test, and (2) the court erred in

applying the exclusionary rule to appellant’s request to speak with an attorney before

refusing the breath test. We affirmed in part and reversed in part. We found that the

court did not err in suppressing the deviation portion of the HGN test, but found that the

court did err in excluding evidence of appellant’s request to speak to an attorney before

refusing the breath test. We remanded for further proceedings. State v. Parks, 5th

Dist. Licking No. 12-CA-87, 2013-Ohio-2492.

      {¶10}   Following remand, appellant moved to dismiss, arguing that because the

State certified for purposes of the first appeal that it was unable to proceed to

prosecution due to the trial court’s ruling on the motion to suppress, the State could not

proceed to prosecute the case following the appeal because the State did not prevail on

all issues. The trial court overruled the motion to dismiss. Appellant pled no contest

and was convicted. She assigns one error on appeal:

      {¶11}   “THE PROSECUTING ATTORNEY SHOULD BE PRECLUDED BY THE

TRIAL COURT FROM PROCEEDING WITH THE PROSECUTION OF THE CASE

BECAUSE THE PROSECUTOR CERTIFIED THAT THE STATE WAS NOT ABLE TO

PROCEED WITH PROSECUTION DUE TO THE TRIAL COURT’S RULINGS BUT YET

THE STATE DID NOT PREVAIL ON ALL THE ISSUES RAISED ON APPEAL.”

      {¶12}   Crim. R. 12(K) provides in pertinent part:
Licking County, Case No. 13-CA-78                                                           5


      {¶13}   “When the state takes an appeal as provided by law from an order

suppressing or excluding evidence, or from an order directing pretrial disclosure of

evidence, the prosecuting attorney shall certify that both of the following apply:

      {¶14}   “(1) the appeal is not taken for the purpose of delay;

      {¶15}   “(2) the ruling on the motion or motions has rendered the state's proof with

respect to the pending charge so weak in its entirety that any reasonable possibility of

effective prosecution has been destroyed, or the pretrial disclosure of evidence ordered

by the court will have one of the effects enumerated in Crim. R. 16(D). . .

      {¶16}   “If an appeal from an order suppressing or excluding evidence pursuant to

this division results in an affirmance of the trial court, the state shall be barred from

prosecuting the defendant for the same offense or offenses except upon a showing of

newly discovered evidence that the state could not, with reasonable diligence, have

discovered before filing of the notice of appeal.”

      {¶17}   In the appeal taken by the State, this Court only partially affirmed the

judgment of the court on the motion to suppress. We reversed the judgment of the

court concerning admission of evidence of appellant’s request to speak to an attorney

before refusing the breath test. Our judgment therefore changed the evidence which

the State was entitled to present on remand, and the State was not precluded from

proceeding pursuant to Crim. R. 12(K). While not expressly considering the issue in the

first appeal, this Court’s decision contemplates that the State would proceed with

prosecution and the case, as we stated in conclusion of our discussion of the second

assignment of error, “We find the parties may present the evidence surrounding the

proffer of the breath test, and Parks response, and the finder of fact may weigh the
Licking County, Case No. 13-CA-78                                                        6

evidence accordingly.” Parks, supra, at ¶28. The trial court did not err in overruling

appellant’s motion to dismiss.

      {¶18}   The assignment of error is overruled. The judgment of the Licking County

Municipal Court is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Hoffman, P.J. and

Farmer, J. concur.
