[Cite as State v. Lorenzo, 2015-Ohio-3737.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2015 CA 0011
GABRIELLE LORENZO

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Canton Municipal
                                               Court, Case No. 2014TRC7559


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         September 14, 2015



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

ANTHONY FLEX                                   JACOB T. WILL
ASSISTANT PROSECUTOR                           116 Cleveland Avneue N.W.
218 Cleveland Avenue S.W.                      Suite 808
Canton, Ohio 44702                             Canton, Ohio 44702
Stark County, Case No. 2015 CA 0011                                                   2

Wise, J.

       {¶1}   Appellant Gabrielle Lorenzo appeals the decision of the Canton Municipal

Court, Stark County, which denied her motion to suppress evidence in an OVI case.

       {¶2}   Appellee is the State of Ohio.

                                  STATEMENT OF THE FACTS

       {¶3}    The relevant facts leading to this appeal are as follows:

       {¶4}    On or about October 26, 2014, Appellant Gabrielle Lorenzo was charged

with two counts of Operating a Vehicle Impaired, in violation of R.C. §4511.19, both of

which were based on the same conduct.

       {¶5}   On November 21, 2014, Appellant filed a Motion to Suppress.

       {¶6}   On December 16, 2014, a suppression hearing was conducted. At issue

were whether the officer had reasonable, articulable suspicion to stop the vehicle and

then subsequently ask her to exit her vehicle and whether probable cause existed to

arrest Appellant.

       {¶7}   At the suppression hearing, the State called Ohio State Patrolman

Nicholas Goodnite as their only witness. Trooper Goodnite testified that he was on

patrol on October 26, 2014, at approximately 12:03 a.m. near Cleveland Avenue and

Interstate 77 when he noticed a grey Volvo driving toward him. (T. at 6-7). Trooper

Goodnite testified that this area is heavily patrolled due to the number of OVI related

crashes, OVI drivers, fatalities, and nearby bars. (T. at 9).

       {¶8}   He stated that his attention was drawn to the grey Volvo because as the

vehicle approached his cruiser it appeared to be "one huge ball of light" as compared to

two distinct separate headlights like the vehicle ahead of the Volvo. (T. at 7). This
Stark County, Case No. 2015 CA 0011                                                     3


indicated the high-beam headlights were activated on the Volvo (T. at 7, 19). Trooper

Goodnite testified that high-beams being activated on a vehicle at night will cause

drivers driving the other direction to see spots that can affect their vision for oncoming

cars. (T. at 8).

       {¶9}    Upon witnessing the high beams being active, Trooper Goodnite

conducted a traffic stop of the grey Volvo. (T. at 8). Upon approaching the vehicle,

Goodnite noticed a female driver, who was later identified as Appellant and a male

passenger. (T. at 8). When he approached the vehicle, Goodnite detected the odor of

alcohol coming from the vehicle. Upon speaking with Appellant, she admitted to having

had some alcohol to drink. (T. at 8). Goodnite testified that Appellant’s eyes were

bloodshot and glassy. (T. at 9). At that time, Goodnite asked Appellant to exit the

vehicle and requested that she perform field sobriety tests. (T. at 9-11). Once Appellant

was outside of the vehicle, Trooper Goodnite could still detect a moderate odor of

alcohol coming from her. (T. 9, 16, 21-22).

       {¶10} Goodnite classified the odor of alcohol he detected as moderate, although

he agreed on cross-examination that he did not include that detail in his report. (T. at

16, 22).

       {¶11} Trooper Goodnite conducted three standardized field sobriety tests and a

portable breath test on Appellant during the traffic stop, which he stated were all

conducted according to his training. (T. 9-13). Six out of a possible six clues were

observed during the Horizontal Gaze Nystagmus test, which indicated to Trooper

Goodnite that there was a seventy percent (70%) chance Appellant would test at 0.10

BAC or higher. (T. at 10). Two clues were observed during the walk and turn test and no
Stark County, Case No. 2015 CA 0011                                                       4


clues were observed during the one-leg stand test. (T. at 11-12, 25-27).

      {¶12} At the conclusion of the field sobriety test, Trooper Goodnite offered

Appellant a portable breath test since she had indicated that she had taken thyroid

medication that day. (T. at 12-14). He explained that this test was done to ensure the

clues he observed were due to alcohol and not any medication she was taking. (T. at

12). Appellant took the portable breath test, which yielded a 0.096 BAC. (T. at 12-13).

      {¶13} After Appellant was arrested she was transported to the highway patrol

post and asked to provide a breath sample on a Datamaster machine. (T. at 16-17).

Appellant's sample was a 0.086 BAC. (T. 17-18).

      {¶14} By Judgment Entry filed, December 18, 2014, the trial court denied

Appellant’s motion to suppress.

      {¶15} On December 18, 2014, Appellant entered a plea to one count of OVI.

      {¶16} The trial court sentenced Appellant to 3 days in jail or a Driver's

Intervention Program, a six-month license suspension from October 26, 2014, and was

ordered to complete 25 hours of community service.

      {¶17} Appellant now appeals, raising the following sole Assignment of Error:

      {¶18} “I. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S

MOTION TO SUPPRESS.”

                                               I.

      {¶19} In her sole Assignment of Error, Appellant argues the trial court

erroneously denied her motion to suppress. We disagree.

      {¶20} The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibits the government from conducting unreasonable
Stark County, Case No. 2015 CA 0011                                                           5

searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565

N.E.2d 1271.

       {¶21} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641

N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State

v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. However, as the United

States Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657,

1663, 134 L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion

and probable cause should be reviewed de novo on appeal.”

       {¶22} In the case sub judice, Appellant herein argues that Trooper Goodnite

“lacked cause to have Appellant submit to field sobriety tests.” (Appellant’s Brief at 7).

Appellant also contends that there was not probable cause to arrest her.

       {¶23} “Requiring a driver to submit to a field sobriety test constitutes a seizure

within the meaning of the Fourth Amendment. Courts have generally held that the

intrusion on the driver's liberty resulting from a field sobriety test is minor, and the officer

therefore need only have reasonable suspicion that the driver is under the influence of
Stark County, Case No. 2015 CA 0011                                                       6

alcohol in order to conduct a field sobriety test.” State v. Bright, 5th Dist. Guernsey No.

2009–CA–28, 2010–Ohio–1111, ¶17, citing State v. Knox, 2nd Dist. Greene No. 2005–

CA–74, 2006–Ohio–3039.

        {¶24} In reviewing this issue, we apply a “totality of the circumstances”

approach. See, e.g., City of Fairfield v. Lucking, Butler App. No. CA2002–12–303,

2004–Ohio–90, ¶ 8, citing State v. Freeman (1980), 64 Ohio St.2d 291, 414 N.E.2d

1044.

        {¶25} In support of her position, Appellant cites State v, Keserich, 5th Dist.

Ashland County, Case No. 2014-CA-011, 2014-Ohio-5120. In Keserich, this Court

reversed the decision of the trial court overruling Keserich’s motion to suppress. In

Keserich, the defendant was stopped for not having a light illuminating his rear license

plate. Upon stopping Keserich, the officer observed bloodshot and watery eyes, and he

admitted to having consumed two alcoholic beverages. Based on these facts, the officer

requested that Keserich perform field sobriety tests. This Court, under the facts in this

case, found that defendant’s bloodshot eyes could have been attributed to the fact that

there were four or five other passengers in the car who were smoking. This Court found

that this possible explanation for the bloodshot eyes, together with the stop being based

solely on an equipment violation and the lack of any observation of erratic driving, was

not enough to form a basis to request performance of the field sobriety tests.

        {¶26} We find this case to be distinguishable from Keserich, supra.

        {¶27} In the instant case, as set forth in our recitation of facts, Trooper Goodnite

stopped Appellant because she was driving with her high-beam lights on. He testified

that such action could pose a danger to other drivers. Additionally, upon stopping
Stark County, Case No. 2015 CA 0011                                                        7


Appellant he observed that her eyes were bloodshot and glassy, and that there was an

odor of alcohol coming from the vehicle. Appellant admitted to the consumption of

alcohol. Additionally, it was 12:03 a.m. on a Sunday morning in an area where bars are

located.

       {¶28} Upon review, based on the above factors, we hold a reasonable basis

existed for Trooper Goodnite to ask Appellant to step out of her vehicle and proceed

with field sobriety testing under the circumstances of this case and that probable cause

existed for the arrest.

       {¶29} We therefore hold the trial court did not err in denying the motion to

suppress in this matter. Accordingly, Appellant’s sole Assignment of Error is overruled.

       {¶30} For the reasons stated in the foregoing opinion, the judgment of the

Canton Municipal Court, Stark County, Ohio, is affirmed.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.




JWW/d 0910
