[Cite as State v. Coleman, 2014-Ohio-1498.]
                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                )
                                              )   CASE NO. 13 CO 3
        PLAINTIFF-APPELLEE,                   )
                                              )
        - VS -                                )         OPINION
                                              )
JEFFREY D. COLEMAN,                           )
                                              )
        DEFENDANT-APPELLANT.                  )


CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Common Pleas
                                                  Court, Case No. 11 CR 216.


JUDGMENT:                                         Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                           Attorney Robert L. Herron
                                                  Prosecuting Attorney
                                                  Attorney John Gamble
                                                  Asst. Prosecuting Attorney
                                                  105 S. Market Street
                                                  Lisbon, OH 44432

For Defendant-Appellant:                          Attorney Douglas King
                                                  91 West Taggart Street
                                                  P.O. Box 85
                                                  East Palestine, OH 44413


JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite

                                                  Dated: March 31, 2014
DeGenaro, P.J.
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          {¶1}   Defendant-appellant Jeffrey Coleman appeals the January 4, 2013
judgment of the Columbiana County Court of Common Pleas, which following
Coleman's no contest plea, convicted him of one count of operating a vehicle under the
influence of alcohol or drugs (OVI), and sentenced him accordingly. On appeal,
Coleman asserts that the trial court erred by denying his motion for discharge on speedy
trial grounds, as well as his motion to suppress.          Upon review, Coleman's two
assignments of error are meritless. Coleman's speedy trial rights were not violated as
the time did not commence until he was formally charged with felony OVI by the
indictment, nor was Coleman prejudiced by pre-indictment delay. Further, the trial court
did not err in denying the motion to suppress. Accordingly, the judgment of the trial
court is affirmed.
                              Facts and Procedural History
          {¶2}   On August 27, 2010, Jeffrey Coleman was arrested and later convicted of
obstructing official business. This conviction stemmed from Coleman's actions when
officers from the St. Clair Township Police Department were attempting to execute an
arrest warrant on another individual. While waiting outside an apartment to execute the
warrant, police witnessed Coleman operate his truck by parking in front of the
apartment. Upon arresting Coleman for the obstruction charge and placing him inside
the police vehicle in order to transport him to the police station on that charge, Officer
Davis smelled alcohol on his person and Coleman admitted to drinking prior to the
arrest.
          Upon arrival at the station, Coleman performed field sobriety tests under Davis'
instruction. Based upon those results and other observations, Davis advised Coleman
that he was also under arrest for OVI. Davis then read Coleman the Ohio Bureau of
Motor Vehicles (BMV) Form 2255 advising him of the consequences of failing or
refusing to take a breathalyzer. Coleman signed the form and refused a breath test.
Davis transported Coleman to an area hospital for a blood draw and Coleman was then
released from custody. This appeal focuses on the separate felony OVI offense arising
from that date.
          {¶3}   Almost one year later, on August 26, 2011, Coleman was indicted for two
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counts of operating a vehicle under the influence of drugs and/or alcohol in violation of
R.C. 4511.19(A)(1)(j) and (A)(1)(a), both fourth degree felonies.
       {¶4}   On December 5, 2011, Coleman filed a motion for discharge alleging
violations of his right to a speedy trial pursuant to R.C. 2945.73(B), as well as the United
States and Ohio Constitutions, based upon an arrest date of August 27, 2010. In
response, the State argued that the correct date from which to calculate the speedy trial
time was August 31, 2011, the date Coleman was arrested on his OVI indictment.
Coleman further argued that his right to a speedy trial was violated since the State had
the evidence necessary to indict him, but failed to do so until a year after the acquisition
of that evidence. Alternatively, Coleman argued if he was not under arrest on August
27, 2010, then he was the subject of an illegal search and seizure when his blood was
taken without either a warrant or his consent. Coleman attached the BMV Form 2255
issued to him on August 27, 2010.
       {¶5}   On February 1, 2012, the trial court overruled the motion for discharge
concluding that while Coleman was arrested on August 27, 2010, this was not the
beginning of "continuous, actual restraints" on his liberty and being held to answer to a
criminal charge as outlined by the Ohio Supreme Court. Accordingly, the trial court held
this date did not "equal an arrest for purposes of the time limitations contained in R.C.
2945.71(C)(2)."
       {¶6}   On February 6, 2012, Coleman filed a motion to suppress, arguing that at
the time of his original arrest on August 27, 2010, all evidence gathered was done
without consent and without a proper warrant. Alternatively, Coleman argued that "the
State lacked probable cause so as to form a reasonable articulable suspicion that
Coleman operated a vehicle while impaired or with a prohibited level of alcohol or drugs
in his system." Moreover, Coleman argued that any statements taken from him were
obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights.
       {¶7}   On February 9, 2012, Coleman executed a waiver of his speedy trial time.
       {¶8}   On March 29, 2012, the court held a suppression hearing. The State first
called Officer Chris Davis, who testified that on August 27, 2010, he was attempting to
serve an arrest warrant at an apartment in East Liverpool, Ohio. While at the apartment
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Davis saw Coleman operating his truck before parking it and continuing into the
apartment. Davis received permission to search the apartment and found the subject of
the warrant hiding in the kitchen behind cabinets. Coleman was arrested for obstructing
official business due to his role in concealing the subject.
       {¶9}   Davis testified that when he arrested Coleman for the obstructing charge
and put him in the patrol car, he noticed a strong smell of alcohol. Coleman admitted
that he drank two beers at which time Davis advised him of his constitutional rights. At
the police station, Davis administered the Horizontal Gaze Nystagmus (HGN), walk-and-
turn, and one-leg stand tests on Coleman. Davis was trained in conducting these tests
which were proposed and approved by the National Highway Safety Training
Administration (NHSTA). Based upon the results, his personal observations, training
and experience, Davis opined that Coleman was impaired. Davis advised Coleman that
he was under arrest for operating a vehicle while intoxicated. Davis read the BMV Form
2255 to Coleman who appeared to understand and signed it, and then refused a breath
test. After having determined Coleman had multiple prior convictions for OVI, Davis
transported Coleman to East Liverpool City Hospital where his blood was drawn and
later sent for processing at the Ohio State Highway Patrol Lab in Columbus, Ohio.
       {¶10} On cross examination Davis admitted that he did not see Coleman commit
any violations while driving the pickup truck and conceded that he has not had any
training on the NHSTA tests for several years. Davis further explained that Coleman
was not issued a uniform traffic citation for any violation on this date, and that
Coleman's license was suspended because he refused to submit to a breathalyzer test.
       {¶11} On May 3, 2012, the court overruled Coleman's motion to suppress,
finding that based upon the evidence and totality of the circumstances, Officer Davis
had probable cause to arrest Coleman for an OVI offense on August 27, 2010. Further,
the court found that Coleman was adequately advised of his Miranda rights.
       {¶12} Ultimately, Coleman pled no contest to the charge of operating a vehicle
under the influence, a felony of the fourth degree. On January 4, 2013, he was
sentenced to imprisonment for nine months, a five-year license suspension, and a fine
of $1,350.00. Coleman filed a timely notice of appeal and this court subsequently
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granted a stay only as to Coleman's term of imprisonment.
                                      Speedy Trial
       {¶13} In his first of two assignments of error, Coleman asserts:
       {¶14} "The trial court erred in overruling defendant/appellant's motion for
discharge."
       {¶15} Coleman argues that his statutory right to a speedy trial was violated and
that the arrest on August 27, 2010, triggered the time within which he had to be brought
to trial. Conversely, the State contends that the time did not start until Coleman was
formally indicted and arrested on that indictment approximately one year later.
       {¶16} A criminal defendant has a fundamental right to a speedy trial, guaranteed
by the Sixth Amendment to the United States Constitution and Article I, Section 10 of
the Ohio Constitution. State v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, ¶14.
Pursuant to R.C. 2945.71(C)(2), an individual against whom a felony has been charged,
"shall be brought to trial within two hundred and seventy days after the person's arrest."
Moreover, "[u]pon motion made at or prior to the commencement of trial, a person
charged with an offense shall be discharged if he is not brought to trial within the time
required by Sections 2945.71 and 2945.72 of the Ohio Revised Code."                   R.C.
2945.73(B).
       {¶17} A charge is not pending against an individual for purposes of speedy trial
time calculation "until the accused has been formally charged by a criminal complaint or
indictment, is held pending the filing of charges, or is released on bail or recognizance."
State v. Azbell, 112 Ohio St.3d 300, 2006-Ohio-6552, 859 N.E.2d 532, ¶21. In Azbell,
the court analyzed whether the speedy-trial clock under R.C. 2945.71 runs between the
time a person is arrested and released with no charges being filed and the later filing of
an indictment based upon the same incident. Id. ¶9; 20-21. The Supreme Court held
that the speedy-trial clock did not begin to run until the filing of the indictment because
the defendant "was never subject to 'actual restraints imposed by arrest and holding to
answer a criminal charge.'" Id. at ¶20, quoting U.S. v. Marion, 404 U.S. 307, 320, 92
S.Ct. 455, 30 L.Ed.2d 468 (1971).
       {¶18} Coleman was originally arrested on August 27, 2010. After evidence was
                                                                                      -6-

collected in furtherance of filing felony OVI charges, Coleman was released without
being formally charged. The indictment for felony OVI was not filed until August 26,
2011 and Coleman was arrested on that indictment and released on a recognizance
bond five days later. Pursuant to Azbell, Coleman did not become a "person against
whom a charge of felony is pending" until he was arrested on the OVI indictment on
August 31, 2011. Coleman attempts to distinguish his case from Azbell on two grounds:
(1) that his driver's license was suspended and (2) his blood was taken. While these are
distinctions, neither are "actual continuing restraints" on Coleman's liberty as discussed
in Azbell.
       {¶19} As such, pursuant to R.C. 2945.71(C)(2), Coleman had to be brought to
trial within two hundred and seventy days from August 31, 2011. One hundred and
sixty-two days later on February 9, 2012, Coleman executed a waiver of all statutory
speedy trial limits. Accordingly there was no violation of Coleman's statutory right to a
speedy trial.
       {¶20} Coleman further argues that the near twelve month lapse in time between
arrest and indictment was prejudicial and in violation of his constitutional right to a
speedy trial. The Due Process Clause of the Fifth Amendment, applicable to the states
via the Fourteenth Amendment has a limited role in protecting against oppressive pre-
indictment delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52
L.Ed.2d 752 (1977). A balancing test, set forth in Barker v. Wingo, 407 U.S. 514, 92
S.Ct. 2182, 33 L.Ed.2d 101 (1972), is used to analyze constitutional speedy trial claims
consisting of four factors: 1) the length of the delay; 2) the reason for the delay; 3) how
and when the defendant asserted his right to a speedy trial; and 4) whether the
defendant suffered prejudice from the delay. Id. at 530-532. The Supreme Court of
Ohio has also adopted this test to determine whether an individual's speedy trial rights
have been denied. State v. Selvage, 80 Ohio St.3d 465, 687 N.E.2d 433 (1997); State
v. Behymer, 80 Ohio App.3d 791, 792, 610 N.E.2d 1126 (1992).
       {¶21} Coleman has neither alleged nor proven that he suffered any prejudice
from the delay in issuance of the indictment. Further, pursuant to Selvage, the rule in
Ohio is that a defendant may only assert violation of his pre-indictment speedy trial
                                                                                     -7-

rights if the state has actually initiated its criminal prosecution prior to indictment.
Selvage, supra, 80 Ohio St.3d at 466. Coleman was not criminally charged with OVI
prior to his indictment. As such, there was no violation of Coleman's constitutional right
to a speedy trial. Accordingly, his first assignment of error is meritless.
                                  Motion to Suppress
       {¶22} In his second of two assignments of error, Coleman asserts:
       {¶23} "The trial court erred in denying defendant/appellant's motion to suppress
as filed herein on February 6, 2012."
       {¶24} An appellate review of the trial court's decision on a motion to suppress
involves a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, 797 N.E.2d 71, ¶8. "The standard of review with respect to a motion to
suppress is limited to determining whether the trial court's findings are supported by
competent, credible evidence." State v. Billiter, 7th Dist. No. 10 MO 5, 2012-Ohio-4551,
¶9, citing State v. Culberson, 142 Ohio App.3d 656, 660, 756 N.E.2d 734 (7th
Dist.2001); State v. Lloyd, 126 Ohio App.3d 95, 100, 709 N.E.2d 913 (7th Dist.1998).
"Accepting those facts as true, we must independently determine as a matter of law,
without deference to the trial court's conclusion, whether they meet the applicable legal
standard." State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d
Dist.1994).
       {¶25} Coleman argues that if his first assignment of error is overruled then the
court has sub silentio determined that there was no OVI arrest on August 27, 2010.
Consequently, Coleman opines that if there was no arrest for purposes of conducting an
OVI investigation then the results of his blood test should have been suppressed
because they were garnered as an unreasonable search and seizure. This is a
mischaracterization of the facts in this case and the applicable law. Coleman was
indeed arrested for OVI on August 27, 2010, which was testified to by Officer Davis and
properly made as a finding by the trial court.
       {¶26} "R.C. 4511.191(A) provides that a person operating a vehicle in Ohio on 'a
highway or any public or private property used by the public for vehicular travel or
parking' is deemed to have given consent for the administration of chemical tests to
                                                                                          -8-

determine a level of alcohol consumption or drug use." State v. King, 1st Dist. No. C-
010778, 2003-Ohio-1541, ¶19. A person arrested for one of the OVI offenses listed in
that section must submit to a blood alcohol level test if requested by a law enforcement
officer. R.C. 4511.191(A)(5)(a). The law enforcement officer who made the request
may resort to "whatever reasonable means are necessary" to ensure submission to the
test if that person refuses to submit to the test. State v. Tackett, 11th Dist. No. 2012-A-
0015, 2013-Ohio-4286, ¶28 citing R.C. 4511.191(A)(5)(b).              "[A] valid arrest must
precede the seizure of a bodily substance, including a blood draw, and must precede an
implied consent given based upon Form 2255." State v. Rice, 129 Ohio App.3d 91, 98,
717 N.E.2d 351 (7th Dist.1998).
       {¶27} Officer Davis placed Coleman under arrest for OVI. He completed the
Ohio BMV Form 2255 advising him of the consequences of failing or refusing to take a
breathalyzer. Davis testified that Coleman understood the form and signed it where it
indicated that the advice on the form was read to him and that he received a copy. After
having determined Coleman had multiple prior convictions for OVI, he transported him
to the hospital for a blood draw pursuant to statute. Consequently Coleman was validly
placed under arrest triggering the implied consent provisions of R.C. 4511.191. As
Coleman was arrested the seizure of his blood to ascertain the alcohol content level was
proper.
       {¶28} Coleman alternatively argues that Officer Davis lacked reasonable
suspicion to conduct field sobriety tests and probable cause to arrest him for OVI.
These arguments are meritless. Coleman admitted drinking alcohol and the smell of
alcohol was on his person, both of which provided sufficient grounds for the officer to
have reasonable suspicion which warranted further investigation.                "Reasonable
suspicion of criminal activity is all that is required to support further investigation." State
v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988).
       {¶29} "The standard for determining whether there was probable cause to arrest
for OVI is whether, at the moment of arrest, the police had sufficient information, derived
from a reasonably trustworthy source of facts and circumstances, sufficient to cause a
prudent person to believe that the suspect was driving under the influence." State v.
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Bish, 191 Ohio App.3d 661, 674, 947 N.E.2d 257 citing State v. Homan, 89 Ohio St.3d
421, 427, 732 N.E.2d 952 (2000)(superseded by statute on other grounds as stated in
R.C. 4511.19(D)(4)(b)). "That determination is based on the totality of the facts and
circumstances surrounding the arrest." Id. The determination of probable cause is a
legal issue that is reviewed de novo. State v. May, 7th Dist. No. 2011-Ohio-6637, 970
N.E.2d 1029, ¶28.
       {¶30} In the present case, Coleman smelled of alcohol, admitted consumption of
alcohol, and demonstrated indicators of impairment on the field sobriety tests. Coleman
argues that the test results are invalid because Officer Davis's administration of the field
sobriety tests did not substantially comply with NHSTA standards; however, Coleman
fails to argue on appeal exactly how. In order to challenge the field sobriety tests,
Coleman had to allege with specificity and particularity how the tests did not conform to
NHSTA standards. State v. Bish, 191 Ohio App.3d 991, 2010-Ohio-6604, 947 N.E.2d
257, ¶15-17. Accordingly, the trial court properly denied the suppression motion, and
Coleman's second assignment of error is meritless.
       {¶31} In conclusion, Coleman was not arrested on the felony OVI indictment until
August 31, 2011, thus the speedy trial time did not commence until that date, and he
later waived his speedy trial rights before the time had run. Further, Coleman suffered
no prejudice from the delay in his indictment. Finally, the denial of the motion to
suppress was proper; the officer had reasonable articulable suspicion to conduct field
sobriety tests and probable cause to arrest Coleman for OVI. Accordingly, the judgment
of the trial court is affirmed.
Vukovich, J., concurs.
Waite, J., concurs in judgment only.
