[Cite as State v. Wilkinson, 2019-Ohio-1199.]




                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




 STATE OF OHIO,                                   :

        Appellant,                                :     CASE NO. CA2018-08-087

                                                  :            OPINION
     - vs -                                                     4/1/2019
                                                  :

 DONALD E. WILKINSON,                             :

        Appellee.                                 :




                     CRIMINAL APPEAL FROM WARREN COUNTY COURT
                                Case No. 2018TRC000414



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036 for appellant

The Law Offices of Steven R. Adams, LLC, Steven R. Adams, 8 West Ninth Street,
Cincinnati, Ohio 45202 for appellee



        S. POWELL, J.

        {¶ 1} Appellant, the state of Ohio, appeals from the decision of the Warren County

Court granting a motion to suppress filed by appellee, Donald E. Wilkinson. For the reasons

outlined below, we reverse the trial court's decision and remand this matter for further

proceedings.
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                                     Wilkinson's Arrest

       {¶ 2} On the evening of February 4, 2018, Officer Joseph Smith with the Hamilton

Township Police Department arrested Wilkinson on suspicion that he had operated a

vehicle while under the influence of alcohol. It is undisputed that the arrest occurred outside

the home where Wilkinson then resided. It is also undisputed that at the time of his arrest

a maroon Honda belonging to Wilkinson was parked in the driveway.

                                    Motion to Suppress

       {¶ 3} On February 13, 2018, Wilkinson filed a motion to suppress. In support,

Wilkinson alleged his arrest was not supported by probable cause, thereby violating his

constitutional rights. The trial court held a hearing on the motion on April 24, 2018. The

lone witness to testify at the suppression hearing was Officer Smith. The following is a

recitation of facts taken from Officer Smith's testimony.

                                Officer Smith's Testimony

       {¶ 4} At 6:28 p.m. on the evening in question, a dispatch was issued for officers to

be on the lookout ("BOLO") for a maroon Honda near the intersection of Foster-Maineville

Road and Sibcy Road. The dispatch was issued after a concerned citizen called 9-1-1 to

report what he believed to be an intoxicated driver driving a maroon Honda. It is undisputed

that the caller's name and phone number were provided to the 9-1-1 operator and thereafter

provided to Officer Smith.

       {¶ 5} The concerned citizen called 9-1-1 after seeing the driver of the maroon

Honda committing "some marked lane violations" and a "wide enough turn" to where "the

vehicle nearly drove up on the curb." The caller's observations of the maroon Honda

occurred while the vehicle was turning onto Ravenwood Lane from Foster-Maineville Road.

Although snowing intermittently that evening, the record indicates the roads, driveways, and

sidewalks were not snow covered

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      {¶ 6} At 6:38 p.m., approximately 10-minutes after the BOLO was issued, Officer

Smith was traveling on Willow Ridge Circuit when he noticed a "gentleman that was

somewhat on his hands and knees, appeared to be in the position of trying to get up from

the ground."    It is undisputed that the individual rising up was Wilkinson.     It is also

undisputed that where Wilkinson was seen getting up from the ground was near the

driveway leading to the home where Wilkinson then resided. Parked in the driveway was a

maroon Honda.

      {¶ 7} Officer Smith testified the distance between Maineville-Foster Road and Sibcy

Road (where the maroon Honda was last seen by the concerned citizen) and the home on

Willow Ridge Circuit (where he observed Wilkinson getting up from the ground) was "[l]ess

than a mile probably."

      {¶ 8} Upon seeing Wilkinson getting up, Officer Smith turned his cruiser around and

parked at the end of the driveway. After parking, Officer Smith walked down the driveway

towards Wilkinson. Wilkinson was at that time standing near the garage door attempting to

input the garage door access code. Officer Smith explained his observations upon parking

his cruiser and approaching Wilkinson as follows:

               [OFFICER SMITH]: So I went down and turned around on
               Willow Ridge and came back to the driveway. Which at that
               point is when I started to walk up the driveway and I noticed a
               gentleman trying to enter a code into a garage door pad.

               [THE STATE]: Okay. And what happened after that point?

               [OFFICER SMITH]: I observed the gentleman prior to making
               contact. Sometimes that gives us clues as to what potentially is
               going on. I was concerned there might be a medical situation
               occurring. So I realized he struggled to enter that code to get
               into the garage door – I approached and made contact with that
               gentleman.

      {¶ 9} As Officer Smith approached Wilkinson, Officer Smith observed "multiple

sequences of presses, multiple attempts" for Wilkinson to enter the correct garage door

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access code. Wilkinson, however, was not successful in his efforts to open the garage

door.

        {¶ 10} After approaching Wilkinson, Officer Smith identified himself by stating "hello,

hey." Officer Smith then stated, "Hey, are you okay? Hey. Hello. That type of thing."

Wilkinson did not immediately respond to Officer Smith's questions nor did Wilkinson look

up toward Officer Smith to acknowledge his presence. Officer Smith then again asked

Wilkinson if he was okay; "I asked if he was okay after seeing him get up from the concrete

driveway just minutes earlier." Officer Smith's main concern at that time was to check

Wilkinson's well-being since he had just seen Wilkinson getting up from the ground.

        {¶ 11} Not receiving any response from Wilkinson, Officer Smith made "a couple of

attempts at least" to where it was "noticeable" that Wilkinson "wasn't hearing what I was

saying." But, as Officer Wilkinson testified, "[a]t some point it obviously worked." Wilkinson

was at that time carrying a bag of groceries and had with him a "suitcase cart" or "rolling

cart" by his side. Wilkinson also had "wet spots" on the knees of his pants.

        {¶ 12} Upon finally receiving a response from Wilkinson, Officer Smith immediately

detected a strong odor of an alcoholic beverage on his person, "not just when he spoke."

Officer Smith also noticed Wilkinson had "very watery" eyes and "some degree" of "garbled"

and slurred speech. Wilkinson's "responses were also delayed." This made it "[a] little bit

more difficult to understand than a normal speech pattern." Officer Smith was at that time

"almost touching distance, you know, less than three feet" from Wilkinson.

        {¶ 13} Not wanting Wilkinson to merely set his groceries down on the ground, Officer

Smith asked Wilkinson if anybody was at home to take his belongings inside. Wilkinson

responded that there was. Officer Smith and Wilkinson then walked down the sidewalk to

the front door. While walking to the door, Officer Smith noticed Wilkinson had "balance

issues" and was unsteady on his feet. Explaining further, Officer Smith testified:

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             More focus it appears on each step. It wasn't a normal paced
             walk. Other than seeing the balance issues, swaying when he
             was walking, it was a – more of a[n] effort for him to walk forward
             as opposed to what you would expect.

Officer Smith also noticed that Wilkinson was "swaying" even when he was standing still.

      {¶ 14} Once Wilkinson's belongings were safely inside, Officer Smith and Wilkinson

walked back to the garage door access pad. Officer Smith then testified:

             [THE STATE]: So what do you do at this point?

             [OFFICER SMITH]: We go back to the front of the garage door.
             The garage door was still closed at that time. And I began to
             ask Mr. Wilkinson about, do you have any medical issues,
             anything going on? I see that you fell. Normal contact in the
             beginning, making sure that there wasn't a reason why we
             needed to dispatch a squad or anything like that.

             [THE STATE]: Did he indicate that he had any medical issues?

             [OFFICER SMITH]: I don't believe he did at the time. A lot of
             the questions in the beginning when I was asking – either the
             answers were delayed or some of the questions just weren't
             answered. I had to ask a lot of those questions multiple times.
             So as I went through the entirety of this investigation you'll see
             that that's a pattern. But when he didn't indicate that there were
             medical issues and the strong odor of alcohol and the other
             things we've discussed, at that point I believed that we were
             going to be looking into a possible OVI.

      {¶ 15} Now believing Wilkinson may have been the person driving the maroon

Honda subject to the BOLO, Officer Smith asked Wilkinson if he had consumed any

alcoholic beverages earlier that evening. Wilkinson responded that he "had one beer a long

time ago. He indicated the time frame was a while. * * * [A] long time ago. That's the best

I can recall." Wilkinson made this statement despite him just being seen by Officer Smith

getting up from the ground while at the same time exhibiting a strong order of an alcoholic

beverage on his person, "balance issues," "very watery" eyes, and "some degree" of

"garbled" and slurred speech.

      {¶ 16} At 6:42 p.m., four minutes after Officer Smith arrived at the scene, Officer

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Smith's partner, Officer Kaufholz, also arrived at the scene. Furthering their inquiry, Officers

Smith and Kaufholz asked Wilkinson about where he worked, where he was coming from,

and how far he had driven that evening. Wilkinson responded that he had come home from

work, "that he was already home, [and] that he just wanted to go inside." During this

questioning, Wilkinson "eventually admitted to driving home" and confirmed that the maroon

Honda parked in the driveway belonged to him. Wilkinson also reiterated that "he had only

had one beer, that he was already home, [and] that I didn't see him driving."

        {¶ 17} Following this questioning, Officer Smith returned to his cruiser to verify

Wilkinson's information and his identity. After confirming Wilkinson's identity, Officer Smith

telephoned the concerned citizen who had called 9-1-1 to report the maroon Honda. During

this conversation, the caller and Officer Smith "cover[ed] what he witnessed."1 Officer Smith

then went back to the house where Wilkinson and Officer Kaufholz were still standing.

        {¶ 18} Upon Officer Smith's return, Wilkinson began "purposefully not answering

questions when they clearly were heard." Shortly thereafter, and based on "the totality of

everything going on," Officer Smith requested Wilkinson to submit to the standardized field

sobriety tests. But, as Officer Smith testified, he "had to ask [Wilkinson to submit to the

standard field sobriety tests] several times. He would not answer the question. Eventually

he indicated he wasn't going to."

        {¶ 19} Officer Smith then testified:

                Based upon everything we determined that we were going to
                place Mr. Wilkinson under arrest and at the time we went to
                handcuff Mr. Wilkinson [but] he tried to go through the garage,
                which the garage door was now opened without his influence,
                and tried to go into the garage door in the house.




1. The concerned citizen also provided a written statement to police. According to Officer Smith, the statement
comported with the information provided to him during this call.


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       {¶ 20} Officer Smith thereafter testified regarding Wilkinson's conduct:

               [OFFICER SMITH]: He pulled away and tried to go into the
               house?

               [WILKINSON'S DEFENSE COUNSEL]: Like how?

               [OFFICER SMITH]: Pulled his arms away from our actual grasp
               and tried to go along side the car and into the house.

               [WILKINSON'S DEFENSE COUNSEL]: And how far did he
               walk?

               [OFFICER SMITH]: Six, seven, eight feet. I don't know exactly.

       {¶ 21} Continuing, when asked why he allowed Wilkinson to get several feet away

instead of immediately apprehending Wilkinson, Officer Smith testified:

               One hand would have already been on and he tried to pull away.
               A[nd] he pulled away, as you described with his elderly, I
               apologize, but described as elderly, with his medical situations
               that you've now described, it doesn't necessarily require that we
               immediate (sic) escalate force if we don't determine that it's
               necessary.2 So he was able to get some feet away from the
               spot in which he was standing based upon the fact that two
               officers were on the scene and that we were able to grab his
               other arm at that time and place him in handcuffs.

       {¶ 22} Despite Wilkinson's attempts to retreat into the house, Officer Smith was able

to detain Wilkinson and secure him in handcuffs. Officer Smith made the decision to arrest

Wilkinson after finding him to be "obviously impaired." This, as noted above, was based on

Officer Smith having just seen Wilkinson getting up from the ground, as well as the strong

odor of alcoholic beverage on Wilkinson's person, Wilkinson's "very watery" eyes, "some

degree" of "garbled" and slurred speech, and Wilkinson's "balance issues" causing him to

be unsteady on his feet both while walking and standing still.

       {¶ 23} After placing Wilkinson under arrest, Officer Smith read Wilkinson his Miranda




2. At the time of his arrest, Wilkinson was 58 years old and, according to his defense counsel, was then
scheduled to have hip replacement surgery.
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rights and placed Wilkinson in the back of his police cruiser. Upon being placed in the

cruiser, Wilkinson refused to acknowledge whether he understood his Miranda rights or

"cooperate at any point" thereafter. This includes Wilkinson's refusal to read and sign the

BMV Form 2255, a form that explains and provides information to individuals regarding the

impact of an administrative license suspension.

       {¶ 24} Wilkinson was then transferred to the Warren County Jail. During this time,

Wilkinson continued to argue with Officer Smith. Wilkinson also refused to provide Officer

Smith with his telephone number "[s]aying that, because I didn't answer his questions, he

wasn't going to answer mine." But, upon arriving at the jail, Wilkinson nevertheless told the

jail intake officer that he had consumed two beers earlier that day.

       {¶ 25} Concluding, when asked if he felt that he had sufficient information to provide

him with probable cause to effectuate Wilkinson's arrest for operating a vehicle while under

the influence of alcohol, Officer Smith testified "Yes." Officer Smith reached this decision

despite him not ever personally witnessing Wilkinson operate any vehicle that evening. This

includes the maroon Honda belonging to Wilkinson parked in the driveway.

                                    Trial Court's Decision

       {¶ 26} On August 2, 2018, the trial court issued a decision granting Wilkinson's

motion to suppress. In so holding, the trial court initially stated:

              After reviewing the evidence presented and the testimony of
              Officer Smith, this Court finds the motion is well taken. There
              was a "BOLO" for a maroon Honda that was called in by a citizen
              concerned about a possible OVI. Officer Smith did not observe
              any driving, but stumbled upon the maroon Honda when he
              observed Defendant in a position that gave Officer Smith cause
              for concern.

       {¶ 27} Continuing, the trial court stated:

              While there were some indications of possible impairment, there
              were not enough indicators that Defendant was driving, was
              driving erratically, or that Defendant's vehicle was the vehicle

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              that was called into dispatch. There was not enough testimony
              or evidence that Defendant should have been asked to submit
              to field sobriety tests, chemical analysis, or arrested for
              suspicion of OVI.

       {¶ 28} Concluding, although granting Wilkinson's motion to suppress, the trial court

commended Officer Smith for his actions that evening. As the trial court stated:

              It should be noted that Officer Smith took appropriate action
              when observing Defendant in position that indicated to Officer
              Smith [that] Defendant could have been in distress. Officer
              Smith should be commended for his actions that day.

                                           Appeal

       {¶ 29} Upon the authority granted by R.C. 2945.67(A) and Crim.R. 12(K), the state

appeals from the trial court's decision granting Wilkinson's motion to suppress. In support

of its appeal, the state argues the trial court erred by finding Officer Smith lacked sufficient

probable cause to arrest Wilkinson on suspicion of operating a vehicle while under the

influence of alcohol. We agree.

                                    Standard of Review

       {¶ 30} Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-

4769, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When

considering a motion to suppress, the trial court, as the trier of fact, is in the best position

to weigh the evidence to resolve factual questions and evaluate witness credibility. State

v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. Therefore, when

reviewing the denial of a motion to suppress, this court is bound to accept the trial court's

findings of fact if they are supported by competent, credible evidence. State v. Durham,

12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶14.                "An appellate court,

however, independently reviews the trial court's legal conclusions based on those facts and

determines, without deference to the trial court's decision, whether as a matter of law, the

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facts satisfy the appropriate legal standard." State v. Cochran, 12th Dist. Preble No.

CA2006-10-023, 2007-Ohio-3353, ¶ 12.

                         Probable Cause for Warrantless Arrest

       {¶ 31} "For a warrantless arrest to be lawful, the arresting officer must have probable

cause that the individual had committed an offense." State v. Watson, 12th Dist. Warren

CA2014-08-110, 2015-Ohio-2321, ¶ 14.          "Probable cause is generally defined as a

reasonable ground of suspicion supported by facts and circumstances sufficiently strong in

themselves to warrant a prudent person in believing an accused person has committed or

was committing an offense." State v. Christopher, 12th Dist. Clermont No. CA2009-08-041,

2010-Ohio-1816, ¶ 16. "Probable cause to arrest for OVI exists when, at the moment of

arrest, the arresting officer had sufficient information, derived from a reasonably trustworthy

source of facts and circumstances, to cause a prudent person to believe the accused was

driving under the influence of alcohol." State v. Way, 12th Dist. Butler No. CA2008-04-098,

2009-Ohio-96, ¶ 30. A court makes this determination based on the totality of the facts and

circumstances surrounding the arrest. State v. Aslinger, 12th Dist. Preble No. CA2011-11-

014, 2012-Ohio-5436, ¶ 13, citing State v. Homan, 89 Ohio St.3d 421, 427 (2000).

                                          Analysis

       {¶ 32} After a thorough review of the record, we agree with the state and find there

was ample evidence to support Officer Smith's decision to arrest Wilkinson on suspicion of

operating a vehicle while under the influence of alcohol. The trial court's decision granting

Wilkinson's motion to suppress must therefore be reversed.

       {¶ 33} As noted above, after dispatch issued a BOLO for a maroon Honda that had

last been seen near the intersection of Foster-Maineville Road and Sibcy Road, Officer

Smith observed a gentleman getting up from the ground in front of a home located on Willow

Ride Circuit. This gentleman, as noted above, was Wilkinson. Officer Smith's observations

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of Wilkinson occurred approximately ten minutes after the BOLO was issued at a home that

was approximately one mile away from where the maroon Honda was last seen turning

onto Ravenwood Lane from Foster-Maineville Road. In the driveway of this home was a

maroon Honda.

       {¶ 34} Concerned for Wilkinson's well-being, Officer Smith turned his cruiser around

and parked at the end of the driveway. Officer Smith then approached Wilkinson as he

struggled to enter the garage door access code.          Upon his approach, Officer Smith

announced himself and thereafter attempted to get Wilkinson's attention. This was, as

Officer Smith testified, to determine whether Wilkinson was then suffering from a medical

emergency for which he needed immediate medical care.

       {¶ 35} After several attempts, Officer Smith was finally able to get Wilkinson's

attention. However, even prior to getting Wilkinson's attention, Officer Smith detected a

strong odor of alcoholic beverage on Wilkinson's person, "not just when he spoke." Officer

Smith also noticed Wilkinson had "very watery" eyes and "some degree" of "garbled" and

slurred speech. Wilkinson's "responses were also delayed" and was "[a] little bit more

difficult to understand than a normal speech pattern." At this time Officer Smith was "almost

touching distance, you know, less than three feet" from Wilkinson.

       {¶ 36} Despite just being seen by Officer Smith getting up from the ground, Wilkinson

denied that he had any medical issues or that he was then suffering from a medical

emergency for which he needed immediate medical care. After learning Wilkinson was not

then suffering from some medical condition, and considering a maroon Honda matching the

BOLO was then parked in the driveway just a short distance away, Officer Smith asked

Wilkinson if he had consumed any alcoholic beverages earlier that evening. To this, Officer

Smith testified that Wilkinson admitted he "had one beer a long time ago. He indicated the

time frame was a while. * * * [A] long time ago. That's the best I can recall."

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       {¶ 37} Upon further inquiry, which included Officer Smith telephoning the concerned

citizen who initially called 9-1-1 to report what he believed to be a possible intoxicated driver,

Officer Smith placed Wilkinson under arrest. Officer Smith made the decision to arrest

Wilkinson after finding him to be "obviously impaired." Officer Smith reached this decision

after considering the totality of the circumstances. This includes, as noted above, the fact

that he had just seen Wilkinson getting up from the ground next to a maroon Honda, as well

as the strong odor of alcoholic beverage on Wilkinson's person, Wilkinson's "very watery"

eyes, "some degree" of "garbled" and slurred speech, and Wilkinson's "balance issues"

causing him to be unsteady on his feet both while walking and standing still.

       {¶ 38} The trial court granted Wilkinson's motion to suppress upon finding that

although there were some indications that Wilkinson was possibly impaired, "there were not

enough indicators that Defendant was driving, was driving erratically, or that Defendant's

vehicle was the vehicle that was called into dispatch." The trial court's decision, however,

was not based on whether there was probable cause for Officer Smith to effectuate

Wilkinson's arrest. Rather, the trial court's decision was based on whether there was

sufficient evidence to prove Wilkinson's guilt beyond a reasonable doubt. "That the state

may fail to prove an offense by proof beyond a reasonable doubt does not mean that the

much lower standard of probable cause did not exist to support the offense in the first

instance." State v. Mansour, 12th Dist. Warren No. CA2015-06-051, 2016-Ohio-755, ¶ 26.

       {¶ 39} Contrary to the trial court's holding, the fact that there was no direct evidence

to prove Wilkinson was the same person driving the maroon Honda observed by the

concerned citizen who called 9-1-1 is immaterial. Applying the applicable probable cause

standard, and when considering the totality of the circumstances, there was sufficient

information available to Officer Smith at the time of Wilkinson's arrest to cause a prudent

person to believe Wilkinson had just minutes prior been operating a vehicle while under the

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influence of alcohol.    Much of this evidence was circumstantial.           But, even then,

"circumstantial evidence and direct evidence inherently have the same probative value, and

in some instances, certain facts can only be established by circumstantial evidence." State

v. Wright, 12th Dist. Fayette No. CA2017-10-021, 2018-Ohio-1982, ¶ 32, citing State v.

Jenks, 61 Ohio St.3d 259, 272 (1991).

       {¶ 40} As noted above, Wilkinson was seen by Officer Smith just getting up from the

ground nearby to a maroon Honda. Minutes prior and approximately one mile away, a

maroon Honda was observed by a concerned citizen committing "some marked lane

violations" and a "wide enough turn" to where "the vehicle nearly drove up on the curb."

Upon his approach, Officer Smith noticed Wilkinson struggling to input the garage door

access code. Wilkinson was carrying a bag of groceries and had with him a "suitcase cart"

or "rolling cart" by his side. The logical inference being that Wilkinson, exhibiting multiple

clues of impairment, had just arrived home via the maroon Honda parked in the driveway.

       {¶ 41} Again, when viewed under the totality of the circumstances, we find this to be

ample evidence to support Officer Smith's decision to arrest Wilkinson on suspicion of

operating a vehicle while under the influence of alcohol. That is, stated differently, ample

evidence to support a finding of probable cause to effectuate Wilkinson's arrest. Yet,

although there was probable cause to effectuate Wilkinson's arrest, it is the trier of fact at

trial, not the trial court in ruling on a motion to suppress, that must determine whether the

evidence elicited at trial was sufficient to prove Wilkinson's guilt beyond a reasonable doubt.

       {¶ 42} In so holding, we note that "[t]he totality of facts and circumstances can

support a finding of probable cause to arrest for DUI even in the absence or exclusion of

field sobriety tests." State v. Crotty, 12th Dist. Warren No. CA2004-05-051, 2005-Ohio-

2923, ¶ 14; see, e.g., State v. Minton, 12th Dist. Warren No. CA2017-08-132, 2018-Ohio-

2142, ¶ 14-15 (probable cause to arrest existed where officer detected odor of alcoholic

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beverage coming from inside the vehicle, appellant admitted to consuming alcohol, refused

to submit to field sobriety testing, and exhibited bloodshot and glassy eyes, sluggish and

slurred speech, and was unsteady on his feet); City of Wilmington v. Taylor, 12th Dist.

Clinton No. CA2009-11-018, 2010-Ohio-3255, ¶ 20 (probable cause to arrest existed where

officer detected moderate to strong odor of alcoholic beverage coming from inside the

vehicle and on person, appellant had bloodshot and glassy eyes, slow and pertinent

speech, and refused to submit to field sobriety testing).

       {¶ 43} That is certainly the case here when considering, once again, Officer Smith

had just seen Wilkinson getting up from the ground next to a maroon Honda, the strong

odor of alcoholic beverage on Wilkinson's person, Wilkinson's "very watery" eyes, "some

degree" of "garbled" and slurred speech, and Wilkinson's "balance issues" causing him to

be unsteady on his feet both while walking and standing still.

                                        Conclusion

       {¶ 44} The trial court erred by granting Wilkinson's motion to suppress. As discussed

more fully above, when considering the totality of the circumstances, there was ample

evidence to support Officer Smith's decision to arrest Wilkinson on suspicion of operating a

vehicle while under the influence of alcohol. Therefore, because we find Officer Smith acted

lawfully at all times relevant, including his decision to approach Wilkinson after just seeing

him getting up from the ground in close proximity to the home where he then resided, the

trial court's decision granting Wilkinson's motion to suppress was improper and must be

reversed. Accordingly, finding merit to the state's single assignment of error, we hereby

sustain the same and reverse and remand this matter to the trial court for further

proceedings.




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{¶ 45} Judgment reversed and remanded.


HENDRICKSON, P.J., and PIPER, J., concur.




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