         [Cite as State v. Carnes, 2015-Ohio-379.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-140188
                                                         TRIAL NO. C-13TRC-13555
        Plaintiff-Appellee,                          :
                                                         O P I N I O N.
  vs.                                                :

JONATHAN CARNES,                                     :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 3, 2015

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Joseph B. Suhre IV, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}     This is an appeal of the trial court’s decision to overrule an

administrative license suspension (“ALS”) appeal in a drunk-driving case. We conclude

that the ALS appeal was properly overruled, so we affirm the judgment of the trial court.

                                     I. Background

       {¶2}     Trooper Jeff Madden stopped Jonathan Carnes on suspicion of

operating a vehicle while under the influence of alcohol or drugs (“OVI”) and violation of

a traffic-control device. Mr. Carnes refused to submit to field-sobriety and chemical

tests, and, as a result, his driver’s license was suspended. Mr. Carnes’s attorney filed a

motion to suppress evidence stemming from his arrest as well as an appeal of his ALS.

       {¶3}     Trooper Madden was called by the state to testify at the hearing on the

motion to suppress. The state also introduced a video taken from Trooper Madden’s

cruiser. While patrolling Edwards Road, Trooper Madden observed Mr. Carnes pull out

of a parking lot and “overshoot” the stop sign, leaving the car jutting out into the lane of

traffic. Trooper Madden then stopped his car in the center lane, and watched Mr.

Carnes back up out of the road. After traffic cleared, Mr. Carnes still did not turn and

instead, reversed his car into the parking lot. Trooper Madden was suspicious and

turned around to conduct a traffic stop.

       {¶4}     As Trooper Madden pulled into the parking lot, Mr. Carnes parked and

got out of his car. Trooper Madden asked why he had pulled into the roadway and then

failed to turn even after the roadway cleared. Mr. Carnes explained that when he pulled

up he knew he could turn right. But after he stopped in the roadway, he backed up to see

if he was “allowed to take a right” at that stop sign because he saw the sign indicating he




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could not turn left. At that point, knowing he could turn right, and with two clear lanes,

Mr. Carnes did not turn and pulled into the parking lot instead.

          {¶5}   Trooper Madden testified that Mr. Carnes had red, glassy, bloodshot

eyes, and that his breath had the odor of alcohol. But when asked if he had been

drinking, Mr. Carnes indicated he had not had anything to drink. Mr. Carnes also

admitted that he was driving on limited privileges due to an existing ALS. When Trooper

Madden initiated field-sobriety tests, Mr. Carnes requested counsel and never

completed any of the requested tests.

          {¶6}   The trial court found that there existed reasonable suspicion to stop Mr.

Carnes and probable cause to arrest. Following the probable cause hearing, counsel

agreed to submit the OVI charges to the trial court based on the evidence entered at the

probable-cause hearing.      Mr. Carnes also tendered a no-contest plea to the traffic-

control-device charge. The court accepted the plea and found Mr. Carnes guilty of the

traffic-control-device offense. It found him not guilty, however, of the OVI charges. Mr.

Carnes’s counsel then asked for a ruling on his ALS appeal. The court overruled the

appeal.

          {¶7}   Before we address the merits of Mr. Carnes’s appeal, we note that the

state asserts Mr. Carnes has waived this issue because he failed to adequately address

the issue below. But Mr. Carnes timely filed his notice of appeal in the trial court,

subsequently asked for a decision on the appeal, and the court overruled his appeal.

Therefore, Mr. Carnes properly preserved this issue for our review.

                       II. Administrative License Suspension

          {¶8}   Mr. Carnes’ sole assignment of error is that the court erred when it

overruled his ALS appeal. Under Ohio law, an individual driving a car on a public road is

deemed to have given consent to a blood, urine, or breath test. R.C. 4511.191(A)(2). An



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officer arresting an individual for OVI must request that the driver submit to a blood,

urine, or breath test. R.C. 4511.191(A)(5)(a). If the driver refuses, then the officer must

seize his license and inform the driver that his license has been suspended. R.C.

4511.192(D). The standard for appeal of such a suspension is “whether the arresting law

enforcement officer had reasonable ground to believe the arrested person was operating

a vehicle * * * in violation of division (A) or (B) of section 4511.19[.]” R.C. 4511.197(C)(1).

The driver has the burden of proving by a preponderance of the evidence that the

arresting officer lacked reasonable ground. R.C. 4511.197(D); see State v. Tweddell, 2d

Dist. Clark No. 2010CA41, 2010-Ohio-4927, ¶ 25.

                  A. Does reasonable ground = probable cause?

       {¶9}     The law is less than clear on whether the “reasonable ground”

requirement to suspend a license has the same meaning as the “probable cause” that is

necessary to effectuate an arrest. See State v. McMahon, 6th Dist. Wood No. WD-08-

039, 2008-Ohio-6535, ¶ 20. In McMahon, the Sixth Appellate District suggested that

“reasonable ground” is a “lesser metric” than probable cause. Id. The court reasoned

that “had the legislature intended the standard in these matters to be ‘probable cause’ it

was perfectly capable of using that term.” Id.

       {¶10}    While the McMahon result seems sound as a matter of statutory

construction, we note that there is support for a contrary view. In other contexts, courts

have equated “reasonable grounds” with “probable cause.” See, e.g., Drape v. United

States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) (noting “the terms ‘probable

cause’ as used in the Fourth Amendment and ‘reasonable grounds’ as used in § 104 (a) of

the Narcotics Control Act, 70 Stat. 570, are substantial equivalents of the same

meaning”); Rogers v. Barbera, 170 Ohio St. 241, 246, 164 N.E.2d 162 (1960) (defining

probable cause in malicious prosecution as “a reasonable ground of suspicion, supported



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by circumstances sufficiently strong in themselves to warrant a cautious man in the

belief that the person accused is guilty of the offense with which he is charged,” quoting

Ash v. Marlow, 20 Ohio 119, 129 (1851)); United States v. Pearce, 356 F.Supp. 756, 758

(E.D.Pa.1973) (finding “reasonable ground” as used in 18 U.S.C. 3052, which empowers

FBI agents to make arrests, is equivalent to “probable cause” as used in the Fourth

Amendment); State v. Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804 (2000) (providing

that in search and seizures probable cause has been defined as “a reasonable ground for

belief of guilt”); State v. Fultz, 13 Ohio St.2d 79, 81, 234 N.E.2d 593 (1968) (indicating

that where an officer has reasonable ground to conclude a felony has been committed,

he has probable cause to carry out an arrest). But this is a question that we can leave for

another day. Here, even under the arguably higher probable-cause standard, there was

more than sufficient evidence to suspend Mr. Carnes’s license.


 B. Even under the probable-cause standard there were sufficient grounds
                              for the ALS

       {¶11}    The standard for probable cause is whether “at the moment of the 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. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d

952 (2000), superseded by statue on other grounds as recognized in State v. Boczar,

113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155. The test is objective. State v.

Deters, 128 Ohio App.3d 329, 333, 714 N.E.2d 972 (1st Dist.1998). We apply de novo

review to determine if the undisputed facts are sufficient to satisfy the legal standard of

probable cause to arrest. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8; see Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d

911 (1996).



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       {¶12}    Appellant relies on State v. Phoenix, 192 Ohio App.3d 127, 2010-Ohio-

6009, 948 N.E.2d 648 (1st Dist.), and State v. Ruberg, 1st Dist. Hamilton Nos. C-120619

and C-120620, 2013-Ohio-4144, to support his contention that Trooper Madden lacked

probable cause to arrest him and therefore lacked reasonable ground to impose the ALS.

Like the defendants in Phoenix and Ruberg, Mr. Carnes committed a traffic violation,

had glassy and bloodshot eyes, had no slurred speech, had no difficulty exiting the

vehicle, and had an odor of alcohol. Phoenix at ¶ 10; Ruberg at ¶ 2-5. Despite these

similarities, Mr. Carnes’s case differs in significant ways.

       {¶13}    First, Mr. Carnes’s behavior was suspicious. He told Officer Madden

that he initially backed up after seeing the no-left-turn sign to determine if he was

allowed to turn right. We find this explanation curious—which direction did Mr. Carnes

expect to turn if he was not permitted to turn left or right at the stop sign? Further,

instead of proceeding about his business after backing up and waiting for traffic to clear,

he turned back into the parking lot and parked his car.

       {¶14}    In addition, the arresting officer was permitted to take into account his

refusal to take chemical and field-sobriety tests in making the probable-cause

determination. See City of Westerville v. Cunningham, 15 Ohio St.2d 121, 122, 239

N.E.2d 40 (1968). The Ohio Supreme Court has explained that

       [w]here a defendant is being accused of intoxication and is not

       intoxicated, the taking of a reasonably reliable chemical test for

       intoxication should establish that he is not intoxicated. On the other

       hand, if he is intoxicated, the taking of such a test will probably establish

       that he is intoxicated. Thus, if he is not intoxicated, such a test will

       provide evidence for him; but, if he is intoxicated, the test will provide

       evidence against him. Thus, it is reasonable to infer that a refusal to take



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       such a test indicates the defendant’s fear of the results of the test and his

       consciousness of guilt[.]


Id. See City of Findlay v. Jackson, 3d Dist. Hancock No. 5-14-02, 2014-Ohio-5202, ¶

38; State v. Molk, 11th Dist. Lake No. 2001-L-146, 2002-Ohio-6926.

       {¶15}    Further, Mr. Carnes volunteered that he was driving under an existing

ALS. An officer’s knowledge of a defendant’s previous arrests or similar conduct is

material to a probable-cause determination. See Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct.

223, 13 L.Ed.2d 142 (1964); State v. Craig, 110 Ohio St.3d 306, 312, 853 N.E.2d 621

(2006); State v. Kessler, 53 Ohio St.2d 204, 373 N.E.2d 1252 (1978); State v.

Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816.

       {¶16}    Here, sufficient indicia of impairment existed to cause a prudent officer

to conclude that Mr. Carnes was impaired. Mr. Carnes’s traffic violation; red, glassy, and

bloodshot eyes; odor of alcohol; suspicious behavior; curious explanation for his

behavior after he spotted the officers; prior OVI and ALS; and refusal to submit to

chemical and field-sobriety tests, taken together, established probable cause to believe

that Mr. Carnes was driving under the influence.

       {¶17}    Therefore, Mr. Carnes’s sole assignment of error is overruled, and we

affirm the judgment of the trial court.



                                                                   Judgment accordingly.

H ENDON , P.J., and F ISCHER , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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