         [Cite as State v. Ruberg, 2013-Ohio-4144.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NOS. C-120619
                                                                   C-120620
        Plaintiff-Appellant,                      :   TRIAL NO. 11TRC-36309

  vs.                                             :
                                                        O P I N I O N.
ASHLEY RUBERG,                                    :

    Defendant-Appellee.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 25, 2013


John Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Jacqueline
Pham, Assistant City Prosecutor, for Plaintiff-Appellant,

The Law Office of Steven R. Adams, Steven R. Adams and Marguerite Slagle, for
Defendant-Appellee.




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




H ILDEBRANDT , Presiding Judge.


        {¶1}   Plaintiff-appellant state of Ohio appeals the judgment of the

Hamilton County Municipal Court granting a motion to suppress in a prosecution for

operating a vehicle with a prohibited breath-alcohol concentration and driving while

impaired.

                       The Stop and the Field-Sobriety Tests

        {¶2}   Early one morning, at approximately 1:30 a.m., Ohio State Trooper

Joel Westhoven clocked defendant-appellee Ashley Ruberg driving 72 m.p.h. in a 45

m.p.h. zone.    Westhoven stopped Ruberg’s car and informed her that she was

speeding. Ruberg produced her license without difficulty. Although her speech was

clear and coherent, Westhoven testified that her eyes were “a little red” and that

there was a smell of alcohol coming from the car and her person. Accordingly, he

decided to administer field-sobriety tests.

        {¶3}   Ruberg exited from her car without hesitating or stumbling. She was

cooperative and told Westhoven that she had consumed a drink at around 4:00 p.m.

        {¶4}   Westhoven first administered the horizontal-gaze-nystagmus (HGN)

test.   He testified that Ruberg had exhibited six “clues” of impairment, but he

conceded that he had improperly administered the test because he had failed to turn

Ruberg completely away from traffic and from his cruiser’s overhead lights.

        {¶5}   Next, Westhoven administered the walk-and-turn test. He testified

that Ruberg had exhibited one clue of impairment because she had not placed the

heel of her foot directly on the toe of the other foot. On cross-examination, though,

Westhoven admitted that guidelines for the test allow for one-half inch between

steps. Westhoven could not recall the amount of space between Ruberg’s steps that


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had led him to conclude that she had not performed the test successfully. But he did

note that Ruberg had exhibited a second clue when she had stepped off of the line

twice during the test.

       {¶6}    Finally, Westhoven administered the one-leg-stand test. He stated

that Ruberg had performed that test successfully.

       {¶7}    Westhoven placed Ruberg under arrest. A breathalyzer test revealed

that Ruberg had a concentration of .116 grams of alcohol per 210 liters of her breath.

                               The Motion to Suppress

       {¶8}    Ruberg filed a motion to suppress, contending, among other things,

that Westhoven had not possessed probable cause to arrest her. The trial court

granted that motion, and the state appealed.

       {¶9}    In a single assignment of error, the state argues that the trial court

erred in granting Ruberg’s motion to suppress.

       {¶10}   When considering a motion to suppress, the trial court acts as the trier

of fact and is in the best position to evaluate the credibility of witnesses and to weigh

the evidence. State v. Sanders, 1st Dist. Hamilton No. C-030846, 2004-Ohio-6842, ¶

6, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

Although we must accept the trial court’s findings of fact if they are supported by some

competent, credible evidence, we conduct a de novo review of whether the facts meet

the applicable legal standard. Id.

       {¶11}   The standard for determining whether an officer had probable cause to

arrest a suspect for operating a vehicle under the influence of alcohol 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.” Cincinnati v. Bryant, 1st



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Dist. Hamilton No. C-090546, 2010-Ohio-4474, ¶ 15, quoting State v. Homan, 89 Ohio

St.3d 421, 427, 732 N.E.2d 952 (2000). This is an objective, not a subjective, standard.

Bryant at ¶ 15, citing State v. Deters, 128 Ohio App.3d 329, 333, 714 N.E.2d 972 (1st

Dist.1998).

        {¶12}    This court addressed the granting of a motion to suppress under

similar circumstances in State v. Phoenix, 192 Ohio App.3d 127, 2010-Ohio-6009,

948 N.E.2d 468 (1st Dist.). In Phoenix, we held that the following facts did not give

rise to probable cause to arrest: (1) the defendant was driving without his headlights

illuminated; (2) he had a slight odor of alcohol on his breath; (3) his speech was not

slurred; (4) his eyes were glassy and bloodshot; (5) he did not have difficulty

producing his license, exiting from his vehicle, or standing while outside the vehicle;

(6) he admitted having consumed alcohol prior to driving; and (7) he demonstrated

only one clue of impairment in each of the two properly administered field-sobriety

tests. Id. at ¶ 8.

        {¶13}    The facts of the case at bar are analogous to those in Phoenix. In this

case, there was no evidence of erratic driving, although Ruberg was driving well over

the speed limit. Her speech was clear and coherent, and she exhibited no difficulty in

obeying Westhoven’s commands to produce her license and exit from her car.

Westhoven testified that there was an odor of alcohol emanating from Ruberg’s

person, but he did not characterize the odor as strong. And even though Ruberg had

admitted to consuming alcohol, she exhibited at most only two clues of impairment

on the field-sobriety tests that had been properly administered.

        {¶14}    Under these circumstances, the trial court did not err in granting the

motion to suppress, and we overrule the assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                            Conclusion

       {¶15}   We affirm the judgment of the trial court.

                                                                     Judgment affirmed.
DEWINE, J., concurs.
DINKELACKER, J., dissents.

DINKELACKER, J., dissenting.

       {¶16}    I agree that this case is similar to the situation that this court faced in

State v. Phoenix, 192 Ohio App.3d 127, 2010-Ohio-4474, 948 N.E.2d 468 (1st Dist).

And, as I did in Phoenix, I must dissent.

       {¶17}   Trooper Westhoven, a five-year veteran of the Ohio State Highway

Patrol with nearly 100 OVI arrests to his credit, stopped Ruberg’s car after he

determined that she was traveling nearly 30 m.p.h. over the speed limit. Ruberg

admitted to drinking alcohol that day and, in spite of the fact that she claimed that

the consumption had occurred hours before, she still smelled of alcohol and her eyes

were red. Westhoven, who had been trained to detect alcohol consumption and

determine impairment, oversaw Ruberg’s performance of three field-sobriety tests.

While she did not fail the tests, there were “indicators” that Westhoven observed that

led him to conclude that Ruberg’s ability to operate her motor vehicle was impaired.

       {¶18}   The measurement of probable cause is taken from the vantage point

of a prudent, reasonable, and cautious police officer, on the scene at the time of the

arrest, guided by his experience and training. United States v. Davis 458 F.2d 819,

821 (C.A.D.C.1972). Under the facts in this case, Trooper Westhoven’s observations,

as understood through the lens of his training and experience, led him to the

reasonable conclusion that Ruberg’s ability to operate a motor vehicle had been

impaired by her consumption of alcohol. The trial court was incorrect when it held

otherwise.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19}    I am concerned about the message that decisions like this send to law

enforcement. In essence, we are telling Trooper Westhoven that, in spite of the fact that

Ruberg had been driving at an excessive rate of speed, had admitted to him that she had

consumed alcohol, was exhibiting the physiological effects of having consumed alcohol,

still smelled of alcohol, and was giving some indications that her motor skills were

adversely affected by her alcohol consumption, he should have simply written her a

ticket and let her drive off into the night. I find such an outcome problematic.



Please note:

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




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