[Cite as State v. High, 2017-Ohio-8264.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.      17CA0019-M

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
IAN E. HIGH                                          MEDINA MUNICIPAL COURT
                                                     COUNTY OF MEDINA, OHIO
        Appellee                                     CASE No.   16 TRC 04875

                                 DECISION AND JOURNAL ENTRY

Dated: October 23, 2017



        CALLAHAN, Judge.

        {¶1}     Appellant, the State of Ohio, appeals from the judgment of the Medina Municipal

Court, granting Appellee, Ian High’s, motion to suppress. This Court affirms.

                                                I.

        {¶2}     Close to midnight one evening, Sergeant Scott Schmoll was dispatched to a home

on Stone Road because the man who lived there had threatened suicide. He arrived along with

two other officers and found that the man’s daughter and her husband, Mr. High, also had

responded to the scene. Mr. High sat in the driver’s seat of his truck with the engine running

while his wife entered her father’s home. An officer then spoke with him and asked him to turn

off his engine. Mr. High complied, but remained in the truck. Meanwhile, his wife, who was

intoxicated, became disruptive and was asked to return to the truck and leave. Before she did so,

the officer who had spoken with Mr. High notified Sergeant Schmoll that Mr. High also
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appeared to have been drinking. The officer told Sergeant Schmoll to speak with Mr. High

before allowing him to drive.

        {¶3}    When Sergeant Schmoll spoke with Mr. High, he immediately detected the odor

of alcohol on his breath. Mr. High admitted that he had consumed alcohol earlier that evening,

so Sergeant Schmoll asked him to step out of the vehicle. The sergeant then performed field

sobriety tests and observed multiple clues on each of the three tests he performed. Subsequently,

Mr. High completed a breathalyzer test and was found to have a blood alcohol content in excess

of the legal limit.

        {¶4}    Mr. High was charged with having physical control of a vehicle while under the

influence of alcohol, in violation of R.C. 4511.194(B)(1) and (B)(2). He filed a motion to

suppress, and a hearing was held on his motion. Following the hearing, the trial court granted his

motion.

        {¶5}    The State now appeals from the trial court’s ruling on the motion to suppress and

raises one assignment of error for this Court’s review.

                                                 II.

                                  ASSIGNMENT OF ERROR

        THE MEDINA MUNICIPAL COURT ERRED IN GRANTING APPELLEE’S
        MOTION TO SUPPRESS EVIDENCE.

        {¶6}    In its sole assignment of error, the State argues that the trial court erred when it

granted Mr. High’s motion to suppress.          Specifically, it argues that the totality of the

circumstances supported the conclusion that Sergeant Schmoll had reasonable suspicion to

conduct field sobriety testing. This Court disagrees.

        {¶7}    A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress,
                                                 3


the trial court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.” Id., citing State v. Mills, 62 Ohio

St.3d 357, 366 (1992). Thus, a reviewing court gives deference to and “must accept the trial

court’s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8,

citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982). “Accepting these facts as true, the appellate

court must then independently determine, without deference to the conclusion of the trial court,

whether the facts satisfy the applicable legal standard.”       Burnside at ¶ 8, citing State v.

McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).

       {¶8}    “[A] police officer does not need probable cause to conduct a field sobriety test;

rather, he must simply have a reasonable suspicion of criminal activity.” State v. Slates, 9th Dist.

Summit No. 25019, 2011-Ohio-295, ¶ 24. “‘Reasonable suspicion’ is more than an ill-defined

hunch * * *.” State v. Hunter, 151 Ohio App.3d 276, 2002-Ohio-7326, ¶ 31 (9th Dist.).

“‘[R]easonable suspicion exists if an officer can point to specific and articulable facts indicating

that [an individual] may be committing a criminal act.’” State v. Osburn, 9th Dist. Wayne No.

07CA0054, 2008-Ohio-3051, ¶ 9, quoting Wadsworth v. Engler, 9th Dist. Medina No. 2844-M,

1999 Ohio App. LEXIS 5993, *9 (Dec. 15, 1999). “Reasonable suspicion is based on the totality

of the circumstances.” State v. Hochstetler, 9th Dist. Wayne No. 16AP0013, 2016-Ohio-8389, ¶

10.

       {¶9}    In reaching its decision, the trial court made each of the following findings.

Sergeant Schmoll and Deputies Clinage and Telakto responded to a home shortly before 11:00

p.m. because the man who lived there had threatened self-harm. The man’s daughter was also

present, along with her husband, Mr. High. Mr. High remained seated in the driver’s seat of his

truck and left it running until Deputy Clinage spoke with him and told him to turn it off.
                                                4


Meanwhile, Sergeant Schmoll spoke with Mr. High’s wife, told her she was clearly intoxicated,

and asked her to return to her husband’s truck and leave. Deputy Clinage then told Sergeant

Schmoll that he “might want to check [Mr. High].”

       {¶10} When Sergeant Schmoll spoke with Mr. High, he detected the odor of alcohol on

his breath. He then asked Mr. High about the odor, and Mr. High said he had “consumed ‘a few

beers with dinner,’ and moments later that he had consumed ‘a couple beers.’”             Sergeant

Schmoll did not characterize the intensity of the odor or observe any other indicia of intoxication

such as red, glossy, or bloodshot eyes, slurred speech, overly deliberate speech, or lack of

coordination. Mr. High was cooperative during the encounter, and there was no evidence of any

erratic driving, as Mr. High’s truck was parked. In granting the motion to suppress, the court

concluded that “[t]he unspecified odor of an alcoholic beverage coming from an individual’s

breath, combined solely with the admission of consumption of a few beers * * * does not create a

reasonable and articulable suspicion that [he] has committed some criminal activity * * *.”

       {¶11} The State does not challenge any particular factual finding that the trial court

made. Instead, it challenges the court’s ultimate legal conclusion. The State argues that, based

on the totality of the circumstances, Sergeant Schmoll had reasonable suspicion to believe Mr.

High was impaired and to subject him to field sobriety testing. Because the State limits its

argument to the court’s ultimate legal conclusion, this Court accepts the trial court’s factual

findings as true and considers the law as applied to those factual findings. See Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, at ¶ 8.

       {¶12} Importantly, Sergeant Schmoll was the only witness to testify at the suppression

hearing. The State did not call Deputy Clinage as a witness, so he was not there to explain what

particular observations he made when he spoke to Mr. High. Moreover, Sergeant Schmoll did
                                                  5


not know what particular observations the deputy made. The trial court only found that Deputy

Clinage told Sergeant Schmoll he “might want to check [Mr. High].” There was no evidence,

therefore, that Deputy Clinage made any particular observations that would support a finding of

impairment.

       {¶13} Though Sergeant Schmoll testified that he detected the odor of alcohol on Mr.

High’s breath, the State never asked him to characterize the odor. Thus, he did not specify

whether it was slight, moderate, or strong. Compare State v. Kodman, 9th Dist. Medina No.

06CA0100-M, 2007-Ohio-5605, ¶ 1, 4 (strong odor of alcohol and admission to having

consumed four beers provided reasonable suspicion); State v. Blackburn, 115 Ohio App.3d 678

(7th Dist.1996) (strong odor of alcohol and admission to having consumed “a few beers”

provided reasonable suspicion). Though Mr. High admitted to having “a few” or “a couple”

beers, Sergeant Schmoll never asked him exactly how many beers it was or exactly when he had

consumed them. Compare State v. Dierkes, 11th Dist. Portage No. 2008-P-0085, 2009-Ohio-

2530, ¶ 25 (defendant’s claim that he had stopped drinking almost seven hours earlier was a

factor in support of reasonable suspicion where officer still detected a moderate odor of alcohol

on defendant’s breath). The sergeant never testified as to any red, glossy, or bloodshot eyes, any

slurred speech, any difficulties with coordination, or any belligerent behavior. Compare State v.

Thayer, 9th Dist. Medina No. 11CA0045-M, 2012-Ohio-3301, ¶ 4, 29 (red, glassy eyes, strong

odor of alcohol, and admission to having consumed four drinks provided reasonable suspicion).

Further, he never testified that his suspicions were aroused as a result of any other factors such as

the late hour, the fact that Mr. High’s passenger (i.e., his wife) was clearly intoxicated, or the fact

that Mr. High chose to remain seated in his truck rather than accompany his wife inside or

voluntarily interact with the officers. The only evidence the State presented was that Mr. High’s
                                                6


breath smelled of alcohol and he admitted to drinking “a few” or “a couple” of beers at some

earlier point.

        {¶14} This Court has held that even a mild odor of alcohol can provide reasonable

suspicion for field sobriety testing when paired with other factors such as a traffic infraction,

bloodshot eyes, and an admission to having consumed two beers. See State v. Tomko, 9th Dist.

Summit No. 19253, 1999 Ohio App. LEXIS 5133, *8-9 (Nov. 3, 1999). Yet, this Court cannot

conclude that the result is the same when an unspecified odor of alcohol is paired strictly with an

admission to having had a few beers. “For better or worse, the law prohibits drunken driving,

not driving after a drink.” (Emphasis sic.) State v. Taylor, 3 Ohio App.3d 197, 198 (1st

Dist.1981). Accord State v. Reed, 7th Dist. Belmont No. 05 BE 31, 2006-Ohio-7075. Likewise,

it is only a crime to be in physical control of a vehicle while under the influence.          R.C.

4511.194(B)(1). The fact that Mr. High had been drinking was not enough to subject him to

field sobriety testing. If Sergeant Schmoll suspected that Mr. High was impaired, it was his duty

to substantiate his hunch by asking additional questions. See Hunter, 2002-Ohio-7326, at ¶ 31.

Similarly, if the State had other evidence that Mr. High was impaired (e.g., any testimony

Deputy Clinage might have given), it was the State’s duty to present that evidence at the hearing.

Neither Sergeant Schmoll, nor the State acted to ensure proof of reasonable suspicion.

        {¶15} This Court in no way condones the act of drinking and driving, but the law

criminalizes the act only if an individual indulges to the point of intoxication or impairment. See

Taylor at 198; Reed at ¶ 18, 27. Based on the record before this Court, the State simply did not

produce enough evidence to show that Sergeant Schmoll possessed “‘specific and articulable

facts indicating that [Mr. High] [was] committing a criminal act.’” Osburn, 2008-Ohio-3051, at

¶ 9, quoting Engler, 1999 Ohio App. LEXIS 5993, at *9. See also State v. Davis, 140 Ohio
                                                 7


App.3d 659, 664-665 (9th Dist.2000). Without more, this Court has no choice but to conclude

that the trial court acted properly when it granted Mr. High’s motion to suppress. The State’s

sole assignment of error is overruled.

                                                III.

       {¶16} The State’s sole assignment of error is overruled. The judgment of the Medina

Municipal Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT
                                          8


CARR, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

J. MATTHEW LANIER, Prosecuting Attorney, for Appellant.

DAVID C. SHELDON, Attorney at Law, for Appellee.
