[Cite as State v. Luebrecht, 2019-Ohio-1277.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-18-56

        v.

MATTHEW J. LUEBRECHT,                                     OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Lima Municipal Court
                             Trial Court No. 18TRC01446

                                      Judgment Affirmed

                              Date of Decision: April 8, 2019




APPEARANCES:

        Clayton P. Osting for Appellant

        Anthony M. DiPietro for Appellee
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SHAW, J.

       {¶1} Defendant-appellant, Matthew Luebrecht (“Luebrecht”), brings this

appeal from the September 25, 2018, judgment of the Lima Municipal Court

sentencing him to 180 days in jail, with 150 suspended, after he pled no contest to,

and was convicted of, OVI with a refusal to submit to a breath test and a prior OVI

within 10 years in violation of R.C. 4511.19(A)(2). On appeal, Luebrecht argues

that the trial court erred by overruling his suppression motion. He contends that the

officer lacked reasonable articulable suspicion of a traffic violation to initiate a stop

of his vehicle.

                       Relevant Facts and Procedural History

       {¶2} On February 13, 2018, Luebrecht was driving in Delphos on a three-

lane roadway. The roadway contained an eastbound lane, a westbound lane, and a

left turn lane in the center demarcated by a solid yellow line. Sergeant Allen Cooper

of the Delphos Police Department indicated that he observed Luebrecht’s vehicle

cross the yellow lane line into the center turn lane, and that he then initiated a traffic

stop of Luebrecht for failure to drive within marked lanes.

       {¶3} Sergeant Cooper indicated that when he interacted with Luebrecht,

Luebrecht’s eyes were glassy and bloodshot, his speech was lethargic, and it seemed

like he was reaching for words. Sergeant Cooper observed a “tallboy” Bud Light in

the vehicle and Luebrecht admitted to consuming two beers.


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         {¶4} Sergeant Cooper had Luebrecht step out of the vehicle and perform field

sobriety tests. Sergeant Cooper noted six of six clues of impairment on the HGN

test, indicators of impairment on the walk-and-turn test, and more indicators of

impairment on the one-leg-stand test, including Luebrecht nearly falling over at one

point. Luebrecht refused to perform a breath test.

         {¶5} On February 13, 2018, Luebrecht was charged with OVI in violation of

R.C. 4511.19(A)(1)(a), a first degree misdemeanor, OVI in violation of R.C.

4511.19(A)(2) with a prior OVI within 10 years, and failure to drive in marked lanes

in violation of R.C. 4511.33(A). He originally pled not guilty to the charges.

         {¶6} On March 16, 2018, Luebrecht filed motion to suppress arguing, inter

alia, that the officer lacked a reasonable articulable suspicion of a traffic violation

to stop his vehicle.1 The matter proceeded to a hearing, which was held on June 19,

2019.2 At the hearing, the State presented the testimony of Sergeant Cooper, who

indicated that he stopped Luebrecht’s vehicle for driving outside of his marked lane.

The State entered Luebrecht’s dash-cam video into evidence. In addition, the State

presented the testimony of Patrolman Garret Rohr of the Delphos Police




1
  The suppression motion contained additional issues that are not the subject of this appeal, and we will not
address them.
2
  The hearing addressed additional issues, such as a motion to dismiss that Luebrecht had filed related to
discovery issues. There were a number of documents and affidavits filed regarding discovery issues in this
matter by defense counsel and the State, but as these issues are irrelevant to this appeal, we will not address
them.

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Department, who testified that he was backup for Sergeant Cooper at the scene, and

that he witnessed Luebrecht’s refusal to perform a breath test.

           {¶7} Luebrecht testified on his own behalf at the hearing, indicating that he

had broken his arm in the week prior to being stopped, and that he had initially

pulled off to the right side of the road to readjust his cast. He testified that he pulled

back onto the road, that he thought about going into Arby’s on the left side of the

road, but he did not, and that he maintained his vehicle in his lane of travel contrary

to Sergeant Cooper’s testimony.

           {¶8} At the conclusion of the hearing, the trial court overruled Luebrecht’s

motion to suppress, finding specifically that there was a reasonable articulable

suspicion to justify a traffic stop in this matter. The next day, the trial court filed a

written entry overruling the suppression motion.

           {¶9} After his suppression motion was denied, Luebrecht entered into a plea

agreement wherein he agreed to plead no contest to OVI with refusal in violation of

R.C. 4511.19(A)(2), and in exchange the State agreed to dismiss the remaining

charges. Following a Crim.R. 11 hearing, Luebrecht’s no contest plea was accepted,

facts of the incident were read into the record by the State, and Luebrecht was found

guilty of OVI as charged.                He was sentenced to 180 days in jail, with 150

suspended.3



3
    Ten of his days could be served by electronic monitoring.

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       {¶10} A judgment entry memorializing his sentence was filed September 25,

2018. It is from this judgment that Luebrecht appeals, asserting the following

assignment of error for our review.

                            Assignment of Error
       The trial court erred in denying the defendant’s motion to
       suppress the stop of the defendant’s vehicle and all evidence
       gathered from the stop. Said denial was in violation of Ohio law
       and the Ohio and Federal Constitutions.

       {¶11} In his assignment of error, Luebrecht argues that the trial court erred

by denying his suppression motion. Specifically, he contends that the stop of his

vehicle was not supported by a reasonable articulable suspicion that a traffic

violation had occurred.

                               Standard of Review

       {¶12} “Appellate review of a decision on a motion to suppress presents a

mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003–

Ohio–5372, ¶ 8. The trial court serves as the trier of fact and is the primary judge

of the credibility of the witnesses and the weight to be given to the evidence

presented. State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist.2000). Therefore,

when an appellate court reviews a trial court’s ruling on a motion to suppress, it

must accept the trial court’s findings of facts so long as they are supported by

competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006–Ohio–




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3665, ¶ 100. The appellate court must then review the application of the law to the

facts de novo. Burnside at ¶ 8.

                                      Analysis

       {¶13} The primary issue before this Court in this case is whether Sergeant

Cooper had a reasonable articulable suspicion to believe Luebrecht committed a

Marked Lanes violation pursuant to R.C. 4511.33(A). The Supreme Court of Ohio

has defined “reasonable articulable suspicion” as “specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant

the intrusion [upon an individual’s freedom of movement].” State v. Bobo, 37 Ohio

St.3d 177, 178 (1988), quoting Terry v. Ohio, 392 U.S. 1, 21–22 (1968). “The

‘reasonable and articulable suspicion’ analysis is based on the collection of factors,

not on the individual factors themselves.” (Emphasis sic.) State v. Mays, 119 Ohio

St.3d 406, 2008-Ohio-4539, ¶ 12, quoting State v. Batchili, 113 Ohio St.3d 403,

2007-Ohio-2204, ¶ 11. Most importantly, the Supreme Court of Ohio has held that,

“A traffic stop is constitutionally valid when a law-enforcement officer witnesses a

motorist drift over the lane markings in violation of R.C. 4511.33, even without

further evidence of erratic or unsafe driving.” Mays at syllabus.

       {¶14} In this case, Sergeant Cooper testified that he stopped Luebrecht for a

violation of R.C. 4511.33(A), which reads, in pertinent part,

       (A) Whenever any roadway has been divided into two or more
       clearly marked lanes for traffic, or wherever within municipal

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      corporations traffic is lawfully moving in two or more
      substantially continuous lines in the same direction, the following
      rules apply:

      (1) A vehicle or trackless trolley shall be driven, as nearly as is
      practicable, entirely within a single lane or line of traffic and shall
      not be moved from such lane or line until the driver has first
      ascertained that such movement can be made with safety.

      (2) Upon a roadway which is divided into three lanes and
      provides for two-way movement of traffic, a vehicle or trackless
      trolley shall not be driven in the center lane except when
      overtaking and passing another vehicle or trackless trolley where
      the roadway is clearly visible and such center lane is clear of
      traffic within a safe distance, or when preparing for a left turn, or
      where such center lane is at the time allocated exclusively to
      traffic moving in the direction the vehicle or trackless trolley is
      proceeding and is posted with signs to give notice of such
      allocation.

      ***

      {¶15} Sergeant Cooper testified that on February 13, 2018, he was driving

“East Bound on 5th Street, near Elida Road” when he “observed tail lights of a

vehicle on the right-hand side of the road. Kind of off the road way.” (June 19,

2018, Tr. at 15). Sergeant Cooper testified that the road was three lanes, with one

lane going east, one going west, and a left turn lane between them. (Id. at 36).

Sergeant Cooper testified that he was not certain whether Luebrecht’s vehicle was

on the shoulder of the roadway when he first observed it, or had just left the

roadway, but when Luebrecht’s vehicle was subsequently on the roadway, Sergeant

Cooper followed it to see if the vehicle was having some issues.


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         {¶16} Sergeant Cooper testified that while following Luebrecht, he observed

Luebrecht cross over the yellow lane line, which was on Luebrecht’s left. Sergeant

Cooper testified that Luebrecht’s tire completely crossed the line before he returned

to his lane. Sergeant Cooper testified that he then initiated a traffic stop based upon

a violation of R.C. 4511.33(A).

         {¶17} The State introduced the recording from Sergeant Cooper’s dash

camera into evidence. The video does corroborate Sergeant Cooper’s testimony.

When viewing the video, it does appear to illustrate Luebrecht’s vehicle driving

outside his lane of travel, crossing over into the turn lane, though it is distant in the

video.

         {¶18} To counter the State’s evidence, Luebrecht testified on his own behalf

that he maintained his lane of travel. He testified that at one point he thought about

going to Arby’s, on the left side of the roadway, but decided against it. He also

indicated that he had originally pulled off the road to readjust a cast he was wearing

for an injury.

         {¶19} When considering the evidence, the trial court found that Sergeant

Cooper had a reasonable articulable suspicion of a traffic violation based on R.C.

4511.33(A)(2). The trial court reasoned that Luebrecht did not use a turn signal to

indicate he was getting into a turn lane, and that he “wasn’t over taking [sic] or

passing another vehicle[.]” (Tr. at 87). The trial court indicated that Sergeant


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Cooper witnessed Luebrecht cross out of his lane. The trial court further stated that,

“based upon the facts the officer had, not that the defendant here was distracted and

might have wanted to go left of center, the officer can’t contemplate that. So, that

is reasonable suspicion to stop the vehicle.” (Id.)

       {¶20} On appeal, Luebrecht argues that the trial court erred by finding that

Sergeant Cooper had a reasonable articulable suspicion of a traffic violation to

perform a stop of his vehicle. In support, he argues that Sergeant Cooper originally

stated that Luebrecht crossed a “center” line, and that on his ticket he marked that

the roadway was only two lanes, rather than three. Luebrecht argues that Sergeant

Cooper did not actually witness a traffic violation as he alleged.

       {¶21} It is accurate that Sergeant Cooper wrote that the road was two lanes

on the ticket, but he explained that he wrote that because there was one eastbound

lane, and one westbound lane. The third lane was a left-turn lane. He conceded that

writing down two lanes was not precisely accurate; however, he nevertheless

maintained that he felt Luebrecht’s actions constituted a violation of R.C. 4511.33

and that was why Sergeant Cooper stopped Luebrecht’s vehicle.

       {¶22} In recent years this court has issued numerous opinions addressing

when it is appropriate to stop a vehicle for driving outside of marked lanes in

violation of R.C. 4511.33. See e.g. State v. Ellis, 3d Dist. Allen No. 1-17-37, 2018-

Ohio-898; State v. Yost, 3d Dist. No. 13-18-03, 2018-Ohio-2873. Although these


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cases more often deal with violations concerning R.C. 4511.33(A)(1), the same

principles apply to violations regarding R.C. 4511.33(A)(2).

       {¶23} Under our prior cases, the testimony and the video illustrating that

Luebrecht crossed the line out of his lane would be sufficient to stop him for a

violation of R.C. 4511.33. This is particularly true when considering the language

of the Supreme Court of Ohio in State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-

4539. “A traffic stop is constitutionally valid when a law-enforcement officer

witnesses a motorist drift over the lane markings in violation of R.C. 4511.33, even

without further evidence of erratic or unsafe driving.” Mays at syllabus.

       {¶24} Although Luebrecht testified that he maintained his lane of travel at

all times, Sergeant Cooper testified otherwise and his dash camera video supports

his testimony. Under the facts and circumstances of this case, we cannot find that

the trial court erred by finding that a reasonable articulable suspicion of a traffic

violation occurred warranting a stop of Luebrecht’s vehicle. Therefore, Luebrecht’s

assignment of error is overruled.

                                    Conclusion

       {¶25} For the foregoing reasons Luebrecht’s assignment of error is overruled

and the judgment of the Lima Municipal Court is affirmed.

                                                                Judgment Affirmed

ZIMMERMAN and WILLAMOWSKI, J.J., concur.


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