[Cite as State v. Burkhart, 2016-Ohio-7534.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              ATHENS COUNTY

STATE OF OHIO,                  :   Case No. 16CA8
CITY OF ATHENS,                 :
                                :
     Plaintiff-Appellant,       :
                                :   DECISION AND JUDGMENT
     vs.                        :   ENTRY
                                :
SIDNEY BURKHART,                :
                                :
     Defendant-Appellee.        :   Released: 10/24/16
_____________________________________________________________
                          APPEARANCES:

Lisa A. Eliason, Athens City Law Director, and James K. Stanley, Athens
City Prosecutor, Athens, Ohio, for Appellant.

R. David McGlade, Magaziner and McGlade, LLC, Zanesville, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} The State of Ohio/City of Athens appeals the trial court’s

decision granting a motion to suppress filed by Appellee, Sidney Burkhart.

On appeal, Appellant contends that the trial court erred in granting

Appellee’s motion to suppress, which was based upon an allegation that the

arresting officer lacked reasonable, articulable suspicion to expand the scope

of a traffic stop from a speeding investigation into an operating a vehicle

under the influence of alcohol investigation. Having found merit to the sole
Athens App. No. 16CA8                                                                                        2

assignment of error raised by Appellant, the judgment of the trial court

granting Appellee’s motion to suppress is reversed and this matter is

remanded to the trial court for further proceedings.

                                                FACTS

         {¶2} At approximately 1:46 a.m. on February 26, 2016, Sergeant

Christopher Davis of the Ohio State Highway Patrol stopped Appellee,

Sidney Burkhart, for a speeding violation. Appellee, age nineteen at the

time, was traveling forty-three miles per hour in a twenty-five mile per hour

zone. Appellee had a passenger in her vehicle at the time of the stop. Upon

approaching the vehicle, Sergeant Davis noted a strong odor of alcoholic

beverages coming from the vehicle and observed Appellee to have red,

bloodshot and glassy eyes.1 A review of the dash cam video of the traffic

stop indicates that Sergeant Davis, before he even returned to his vehicle

with Appellee’s information, asked Appellee to exit the vehicle. On the

dash cam video, Davis can be heard telling Appellee the purpose of asking

her to exit the vehicle is so he can check her eyes. Although Davis made




1
  Appellee disputes that Sergeant Davis noted her eyes to be red, bloodshot and glassy while she was still
inside the vehicle and instead argues that the narrative report prepared by Sergeant Davis suggests he did
not make that observation until after she exited the vehicle. However, the State objected to the admission
of the narrative report during the suppression hearing and it was therefore not admitted or made a part of
the record. Thus, it is not presently before us on appeal. Further, the transcript from the suppression
hearing indicates Sergeant Davis testified that he observed Appellee’s eyes upon the initial approach to
Appellee’s vehicle, as per his normal practice and procedure.
Athens App. No. 16CA8                                                         3

another statement after that, the audio recording is indecipherable due to

intervening dispatch reports coming through on the cruiser radio.

      {¶3} Once Appellee exited the vehicle, Sergeant Davis observed a

strong odor of alcoholic beverages on Appellee’s breath. Davis then

administered field sobriety tests to Appellee, the results of which are not

challenged on appeal. Ultimately, Appellee was arrested and charged with

OVI, in violation of R.C. 4511.19(A)(1)(a) and (A)(1)(d), as well as a

speeding violation. The citation issued to Appellee indicates a BAC result

of .160.

      {¶4} Appellee filed a motion to suppress in the trial court, alleging

that the evidence against her should be suppressed because Sergeant Davis

did not possess a reasonable, articulable suspicion of driving under the

influence of alcohol, which she claimed was required for him to order her

out of the vehicle for field sobriety tests. A suppression hearing was held on

April 21, 2016. The State’s witness was Sergeant Christopher Davis, the

trooper who stopped and arrested Appellee on the night in question.

Sergeant Davis testified that he stopped Appellee for speeding and that he

did not observe any other erratic driving or behavior on Appellee’s part. He

further testified that because Appellee had a passenger in the car and

because he detected an odor of alcohol coming from the vehicle, along with
Athens App. No. 16CA8                                                          4

observing Appellee’s eyes to be red, bloodshot and glassy, he asked

Appellee to exit the vehicle so he could check her eyes and to perform field

sobriety tests. Davis further testified that he detected a strong odor of

alcohol on Appellee’s breath once she exited the vehicle. Davis testified that

this factor, coupled with his initial examination of her eyes as well as his

training and experience, led him to conduct field sobriety testing. Although

the trial court did not review the dash cam video during the hearing, it was

admitted into evidence for the court’s review prior to issuing a decision.

      {¶5} The trial court subsequently issued a decision granting

Appellee’s motion to suppress. It is from this decision that the State now

brings their timely appeal, setting forth one assignment of error for our

review.

                         ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED IN GRANTING THE
      DEFENDANT’S MOTION TO SUPPRESS BASED UPON AN
      ALLEGATION THAT THE ARRESTING OFFICER LACKED
      REASONABLE, ARTICULABLE SUSPICION TO EXPAND THE
      SCOPE OF THE TRAFFIC STOP FROM A SPEEDING
      INVESTIGATION INTO AN OPERATING A VEHICLE UNDER
      THE INFLUENCE OF ALCOHOL INVESTIGATION.”

                             LEGAL ANALYSIS

      {¶6} In its sole assignment of error, Appellant, State of Ohio/City of

Athens, contends that the trial court erred to its prejudice when it granted
Athens App. No. 16CA8                                                              5

Appellee’s motion to suppress. Appellant contends that the issue that must

be addressed by this Court is whether the trial court erred in granting the

motion to suppress based upon an allegation that the arresting officer lacked

reasonable, articulable suspicion to expand the scope of the traffic stop from

a speeding investigation into an operating a vehicle under the influence of

alcohol investigation. We initially note that R.C. 2945.67 (Appeal by State)

provides in § (A) that “[a] prosecuting attorney * * * may appeal as a matter

of right any decision of a trial court in a criminal case, * * * which decision

grants * * * a motion to suppress evidence.”

      {¶7} “Appellate review of a motion to suppress presents a mixed

question of law and fact. When considering a motion to suppress, the trial

court assumes the role of trier of fact and is therefore in the best position to

resolve factual questions and evaluate the credibility of witnesses.” State v.

Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, 797 N.E.2d 71, ¶ 8; citing

State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).

“Consequently, an appellate court must accept the trial court's findings of

fact if they are supported by competent, credible evidence.” Id., citing State

v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting these facts

as true, the appellate court must then independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the
Athens App. No. 16CA8                                                             6

applicable legal standard.” Burnside at ¶ 8; citing State v. McNamara, 124

Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). See also State v. Roberts,

110 Ohio St.3d 71, 2006–Ohio–3665, 850 N.E.2d 1168, ¶ 100. The Fourth

Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, provides: “The right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.”

Section 14, Article I of the Ohio Constitution also prohibits unreasonable

searches and seizures. Because Section 14, Article I and the Fourth

Amendment contain virtually identical language, the Supreme Court of Ohio

has interpreted the two provisions as affording the same protection. State v.

Orr, 91 Ohio St.3d 389, 391, 2001–Ohio–50, 745 N.E.2d 1036.

      {¶8} Searches and seizures conducted without a prior finding of

probable cause by a judge or magistrate are per se unreasonable under the

Fourth Amendment, subject to only a few specifically established and well-

delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507

(1967). Once the defendant demonstrates that he was subjected to a

warrantless search or seizure, the burden shifts to the State to establish that
Athens App. No. 16CA8                                                         7

the warrantless search or seizure was constitutionally permissible. See

Maumee v. Weisner, 87 Ohio St.3d 295, 297, 1999–Ohio–68, 720 N.E.2d

507. In this case, law enforcement did not obtain a warrant for any purpose

prior to arresting Burkhart.

      {¶9} “An officer's temporary detention of an individual during a

traffic stop constitutes a seizure of a person within the meaning of the Fourth

Amendment * * *.” State v. Lewis, 4th Dist. Scioto No. 08CA3226, 2008–

Ohio–6691, ¶ 14. “To be constitutionally valid, the detention must be

reasonable under the circumstances.” Id. “A traffic stop is reasonable when

an officer possesses probable cause to believe that an individual has

committed a traffic violation.” State v. Taylor, 4th Dist. Washington No.

07CA11, 2008–Ohio–482, ¶ 15; citing Whren v. United States, 517 U.S.

806, 809, 116 S.Ct. 1769 (1996). “ ‘Probable cause’ is defined as a

reasonable ground of suspicion that is supported by facts and circumstances,

which are sufficiently strong to warrant a prudent person in believing that an

accused person had committed or was committing an offense.” State v.

Jones, 4th Dist. Washington No. 03CA61, 2004–Ohio–7280, ¶ 40; citing

State v. Ratcliff, 95 Ohio App.3d 199, 205, 642 N.E.2d 31 (1994).

      {¶10} Although probable cause “is certainly a complete justification

for a traffic stop,” it is not required. State v. Mays, 119 Ohio St.3d 406,
Athens App. No. 16CA8                                                            8

2008–Ohio–4539, 894 N.E.2d 1204, ¶ 23. So long as “an officer's decision

to stop a motorist for a criminal violation, including a traffic violation, is

prompted by a reasonable and articulable suspicion considering all the

circumstances, then the stop is constitutionally valid.” Id. at ¶ 8. Reasonable

and articulable suspicion is obviously a lower standard than probable cause.

Id. at ¶ 23. To conduct an investigatory stop, the officer must be able to

point to specific and articulable facts which, taken together with rational

inferences derived from those facts, give rise to a reasonable suspicion that

the individual is engaged or about to be engaged in criminal activity. State v.

Williams, 51 Ohio St.3d 58, 60–61, 554 N.E.2d 108 (1990) (per curiam).

“The propriety of an investigative stop by a police officer must be viewed in

light of the totality of the surrounding circumstances.” State v. Freeman, 64

Ohio St.2d 291, 414 N.E.2d 1044, paragraph one of the syllabus (1980).

      {¶11} Once a driver has been lawfully stopped, an officer may order

the driver to get out of the vehicle without any additional justification. State

v. Kilbarger, 4th Dist. Hocking No. 11CA23, 2012–Ohio–1521, ¶ 16; citing

State v. Huffman, 2nd Dist. Clark No. 2010–CA–104, 2011–Ohio–4668, ¶ 8.

See Pennsylvania v. Mimms, 434 U.S. 106, 111, fn. 6, 98 S.Ct. 330 (1977);

See also State v. Alexander-Lindsey, 4th Dist. Lawrence No. 15CA11, 2016–

Ohio–3033, ¶14 (“Officers can order a driver and a passenger to exit the
Athens App. No. 16CA8                                                             9

vehicle, even absent any additional suspicion of a criminal violation.”)

(internal citations omitted). However, “the officer must ‘carefully tailor’ the

scope of the stop ‘to its underlying justification,’ and the stop must ‘last no

longer than is necessary to effectuate the purpose of the stop.’ ” State v.

Marcinko, 4th Dist. Washington No. 06CA51, 2007-Ohio-1166, ¶ 26;

quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319 (1983). “An

officer may lawfully expand the scope of the stop and may lawfully continue

to detain the individual if the officer discovers further facts which give rise

to a reasonable suspicion that additional criminal activity is afoot.” Id.

      {¶12} Thus, “[a]n officer conducting a routine traffic stop may * * *

expand the stop's scope in order to investigate whether the individual

stopped is under the influence of alcohol and may continue to detain the

individual to confirm or dispel his suspicions if the officer observes

additional facts during the routine stop which reasonably lead him to suspect

that the individual may be under the influence.” Id. at ¶ 28. This expanded

stop might include field sobriety tests.

      {¶13} “ ‘In determining whether a detention is reasonable, the court

must look at the totality of the circumstances.’ ” State v. Alexander-Lindsey,

supra, at ¶ 33; quoting State v. Debrossard, 4th Dist. Ross No. 13CA3395,

2015–Ohio–1054, at ¶ 21; in turn quoting State v. Matteucci, 11th Dist. Lake
Athens App. No. 16CA8                                                        10

No. 2001–L–205, 2003–Ohio–702, ¶ 30. The totality of the circumstances

approach “allows officers to draw on their own experience and specialized

training to make inferences from and deductions about the cumulative

information available to them that ‘might well elude an untrained person.’ ”

State v. Ulmer, 4th Dist. Scioto No. 09CA3283, 2010–Ohio–695, ¶ 23;

United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744 (2014). Thus,

when an appellate court reviews a police officer's reasonable suspicion

determination, “the court must give ‘due weight’ to factual inferences drawn

by resident judges and local law enforcement officers.” Ulmer at ¶ 23;

Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657 (1996).

      {¶14} Here, Appellee filed a motion to suppress in the trial court,

contending that all of the evidence against her should be suppressed because

the officer “lacked the necessary reasonable, articulable suspicion that [she]

was operating a motor vehicle while under the influence or while impaired

prior to ordering [her] out of her vehicle for Field Sobriety Testing.” In

support of her motion, at the trial court level and on appeal, Appellee relies

upon State v. Swartz, 2nd Dist. Miami No. 2008 CA 31, 2009–Ohio–902, to

argue that “[a] police officer is not warranted to remove an individual from

their automobile to conduct field sobriety testing unless the officer has

reasonable articulable suspicion to believe that said person was operating a
Athens App. No. 16CA8                                                          11

vehicle under the influence of drugs and/or alcohol.” Appellee further urged

the trial court, and now urges this Court, to consider the factors enumerated

in State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761 (11th Dist.1998) in

determining whether Sergeant Davis had the requisite reasonable, articulable

suspicion to order Appellee to perform field sobriety testing. It appears the

trial court did, in fact, rely on these sources in reaching its decision.

      {¶15} In State v. Swartz, the appellant’s vehicle was stopped after an

officer observed the appellant make a left turn without signaling. Upon

approaching the appellant, the officer noticed his eyes were glassy and

bloodshot and the officer was able to smell the odor of alcohol on the

appellant’s breath, despite having other passengers in the vehicle. State v.

Swartz, supra, at ¶ 2. The Swartz court stated that the issue to be decided

was whether the officer had a reasonable, articulable suspicion to remove the

appellant from his vehicle in order to conduct field sobriety tests. Id. at ¶ 9.

The court also noted that these decisions are “very fact-intensive.” Id. The

Swartz court went on to state, as Appellee herein argues, that “[i]n order to

warrant removing a person from his vehicle to conduct field sobriety tests, a

police officer must have reasonable articulable suspicion to believe that the

person was driving under the influence of drugs or alcohol.” (internal

citations omitted). Finding that the only indicia of intoxication present were
Athens App. No. 16CA8                                                        12

the appellant’s glassy, bloodshot eyes and the smell of alcohol, without any

testimony regarding the intensity or strength of the odor emanating from the

appellant, or that the odor persisted once the appellant was removed from the

vehicle where the passengers remained, the Swartz court upheld the trial

court’s grant of the appellant’s motion to suppress.

      {¶16} We initially note that contrary to the holding in Swartz, this

Court and other courts have held that “[o]fficers can order a driver and a

passenger to exit the vehicle, even absent any additional suspicion of a

criminal violation.” State v. Alexander-Lindsey, supra, at ¶ 14; State v.

Kilbarger, supra, at ¶ 16 (“Once a driver has been lawfully stopped, an

officer may order the driver to get out of the vehicle without any additional

justification.”) Thus, we reject Appellee’s argument that Sergeant Davis

was required to have a reasonable, articulable suspicion of criminal activity

to order her to exit the vehicle. Further, to the extent the trial court’s

decision states that Sergeant Davis was required to have a reasonable,

articulable suspicion of criminal activity at the time he ordered Appellee to

exit the vehicle, the trial court has applied an incorrect legal standard.

Instead, in our view, this case involves two questions: 1) whether Sergeant

Davis had the authority to order Appellant to exit her vehicle after he

lawfully stopped her for speeding; and 2) whether Sergeant Davis had a
Athens App. No. 16CA8                                                        13

reasonable, articulable suspicion that Appellee was under the influence of

alcohol, which would justify expanding the scope of the stop after he

ordered Appellee to exit the vehicle, in order to perform field sobriety

testing.

       {¶17} Subsequent to the issuance of the Swartz decision, State v.

Santiago, 195 Ohio App.3d 649, 2011–Ohio–5292, 961 N.E.2d 264 (2nd

Dist.2011) was decided, also a Second District case. Of importance, the

Santiago court noted the holding in Swartz, but nevertheless also noted that

the Second District itself has held that a strong odor of alcohol, without

more, can be a sufficient basis to provide reasonable suspicion of driving

under the influence. Id. at ¶ 12. For instance, the Santiago court reasoned as

follows during its discussion of the Swartz holding:

       “This court has held, however, that a strong odor of an

       alcoholic beverage, without other significant indicia of

       intoxication, may be sufficient to provide an officer with

       reasonable suspicion of driving under the influence. State v.

       Marshall (Dec. 28, 2001), Clark App. No. 2001CA35, 2001

       WL 1658096 (holding that a strong odor of alcohol, coupled

       with high speed and red eyes, created a reasonable suspicion

       justifying field sobriety tests); State v. Schott (May 16, 1997),
Athens App. No. 16CA8                                                         14

      Darke App. No. 1415, 1997 WL 254141 **268 (holding that a

      strong odor of alcohol alone can create a reasonable, articulable

      suspicion of intoxication adequate to require an individual to

      submit to field sobriety tests).” Id.

Ultimately, the Santiago court found the facts before them distinguishable

from those in Swartz, particularly with regard to the fact that there was

testimony that the odor of alcohol on Santiago was strong, and also could be

smelled on Santiago’s breath once he stepped out of the car. Id. at ¶ 14.

      {¶18} We find the facts of the case presently before us more akin to

the facts in Santiago than Swartz. Here, Appellee was initially stopped

because she was driving forty-three miles per hour in a twenty-five mile per

hour zone. Appellee does not challenge the basis or validity of her initial

stop and thus, we need not address it. Upon stopping Appellee, Sergeant

Davis testified that he approached the vehicle, and per his normal procedure

looked at Appellee’s eyes. He testified that he found Appellee’s eyes to be

red, bloodshot and glassy, and that he smelled a strong odor of alcohol

coming from the vehicle. Because he could not discern where the odor was

coming from and because he noted Appellee’s eyes to be red, bloodshot and

glassy, he ordered Appellee out of the vehicle “to check her eyes,” which he

can be heard stating on the dash cam video. Upon interacting with Appellee
Athens App. No. 16CA8                                                         15

once she exited the vehicle, Davis noted a strong odor of alcohol coming

from Appellee’s breath.

      {¶19} With regard to his decision to remove Appellee from the

vehicle, and taking into consideration there was a passenger in the vehicle,

Sergeant Davis testified that his full intent in removing Appellee was to

determine if he had an impaired driver. Sergeant Davis further testified as

follows:

      “I’m definitely, for liability purpose, for safety purpose, I’m not

      letting them drive down the road when I, based on my

      experience, have seen people that look just like this, that smell

      like this. I’m not letting them drive down the road and hit

      somebody head on and kill them.”

As Sergeant Davis essentially testified, law enforcement officers do in fact

have a duty to dispel their concerns regarding impaired drivers before

concluding a traffic stop. Village of Kirtland Hills v. Kunka, 11th Dist. Lake

No. 2012–L–095, 2013–Ohio–738, ¶ 26. (“Where the officer possesses a

reasonable suspicion that a suspect is guilty of an OVI offense, he has the

authority, if not the duty, to expand the scope of the stop to conduct further

investigation regardless of whether circumstances exist, as they inevitably

will, that support the conclusion that the suspect is innocent. The suspect's
Athens App. No. 16CA8                                                             16

ultimate guilt or innocence is not the issue in an investigatory stop, but,

rather, whether reasonable justification exists for continuing the

search/seizure.”)

      {¶20} We conclude, based upon these facts, as well as our prior

reasoning in Kilbarger and Alexander-Lindsey, that Sergeant Davis had the

authority to order Appellee out of the vehicle, even without a reasonable,

articulable suspicion at that particular time that she was driving under the

influence of alcohol. Further, based upon the reasoning of Santiago,

Marshall and Schott, supra, we conclude that Sergeant Davis had a

reasonable, articulable suspicion Appellee was driving under the influence

of alcohol, which justified expanding the scope of the traffic stop to perform

field sobriety testing. The factors we find present in the record before us are

Appellee’s red, bloodshot, glassy eyes, coupled with the strong odor of an

alcoholic beverage coming from within the vehicle, which strong odor

persisted from Appellee’s breath once she exited the vehicle.

      {¶21} We next consider the applicability of State v. Evans, supra, to

our analysis, as urged by Appellee, and as cited by both parties herein and

relied upon by the trial court in reaching its decision. We initially note that

State v. Evans did not involve the question of whether an officer could order

a driver of the vehicle to perform field sobriety tests, but rather it involved
Athens App. No. 16CA8                                                        17

an analysis of the factors a court should consider when reviewing the totality

of the circumstances surrounding an officer’s decision to administer field

sobriety tests. Evans at *63; State v. Coates, 4th Dist. Athens No. 01CA21,

2002 WL 851765, *4. In Coates, this Court noted the reasoning in Evans,

and stated as follows:

      “In State v. Evans (1998), 127 Ohio App.3d 56, 711 N.E.2d

      761, fn. 2, the Twelfth District Court of Appeals noted several

      factors a court should consider when reviewing the totality of

      the circumstances surrounding an officer's decision to

      administer field-sobriety tests. The Twelfth Appellate District

      noted the following factors, with no single one being

      determinative of this issue:

      (1) the time and day of the stop (Friday or Saturday night as

      opposed to, e.g., Tuesday morning); (2) the location of the stop

      (whether near establishments selling alcohol); (3) any indicia of

      erratic driving before the stop that may indicate a lack of

      coordination (speeding, weaving, unusual braking, etc.); (4)

      whether there is a cognizable report that the driver may be

      intoxicated; (5) the condition of the suspect's eyes (bloodshot,

      glassy, glazed, etc.); (6) impairments of the suspect's ability to
Athens App. No. 16CA8                                                            18

      speak (slurred speech, overly deliberate speech, etc.); (7) the

      odor of alcohol coming from the interior of the car, or, more

      significantly, on the suspect's person or breath; (8) the intensity

      of that odor, as described by the officer (“very strong,”

      “strong,” “moderate,” “slight,” etc.); (9) the suspect's demeanor

      (belligerent, uncooperative, etc.); (10) any actions by the

      suspect after the stop that might indicate a lack of coordination

      (dropping keys, falling over, fumbling for a wallet, etc.); and

      (11) the suspect's admission of alcohol consumption, the

      number of drinks had, and the amount of time in which they

      were consumed, if given.” Coates at *4-5.

Thus, although Evans is non-binding authority, this Court has, in the past,

relied upon its reasoning.

      {¶22} Turning to the factors set forth in Evans, we note that Appellee

was stopped at 1:46 a.m. on a late Thursday night/early Friday morning, on

Stimson Avenue in Athens, Ohio. As far as indicia of erratic driving,

Sergeant Davis did not testify to erratic driving, other than the high rate of

speed in which Appellee was driving for the location in question. Appellee

was going forty-three miles per hour in a twenty-five mile per hour zone.

While there was no other cognizable report made regarding Appellee’s
Athens App. No. 16CA8                                                         19

driving, Sergeant Davis noted upon approaching Appellee that her eyes were

red, bloodshot and glassy and that a strong smell of alcohol was coming

from the vehicle, where there was also a passenger in addition to Appellee.

Sergeant Davis further testified that he identified a strong odor of alcohol on

Appellee’s breath once she exited the vehicle. There is no indication that

Appellee’s demeanor or actions displayed a lack of cooperation or

coordination after she was stopped, nor did Appellee admit to having

consumed alcohol before field sobriety tests were administered.

      {¶23} Considering the above factors as part of a totality of the

circumstances analysis, we find several factors present which, taken together

with Sergeant Davis’s experience and training, would have provided him

with reasonable, articulable suspicion that Appellee was driving under the

influence of alcohol so as to justify expanding the scope of the traffic stop to

perform field sobriety testing. In particular, the timing of the stop, the rate

of Appellee’s speed, which was nearly twenty miles per hour over the legal

limit, the condition of Appellee’s eyes, and the strong odor of alcohol

emanating from the vehicle and also from Appellee’s breath, coupled with

Sergeant Davis’s experience and training, all established a reasonable

articulable suspicion of driving under the influence of alcohol. We conclude
Athens App. No. 16CA8                                                         20

this analysis of these factors is also in line with the reasoning of Santiago, as

discussed above.

      {¶24} Further, we note that the list of factors enumerated in Evans has

recently come under some criticism at the Municipal Court level. In City of

Cleveland v. Machnics, 984 N.E.2d 1129 (2012), a published opinion by the

Cleveland Municipal Court, the court noted that since Evans was decided,

the legal standard for intoxication has been reduced. Id. at *1131. The

Machnics court reasoned as follows, with regard to the continued viability of

the factors enumerated in Evans:

      “In 2003, the Ohio General Assembly reduced the presumption

      of intoxication by two-hundredths of one percent by weight per

      unit volume of alcohol in the person's whole blood. Given this

      lower standard, a number of factors listed in Evans will not be

      exhibited by an impaired driver at the lowest prohibited alcohol

      consumption level. Evans was also decided prior to the

      reduction in the presumptive level of alcohol impairment.

      Consequently, it is unlikely that a suspect's speech, behavior or

      coordination will be noticeably impaired. A prohibition to

      further investigate because only four factors of impairment are

      shown: bloodshot and glassy eyes, smell of alcohol, and time of
Athens App. No. 16CA8                                                                                    21

         day after 2:00 a.m. will probably preclude or hinder

         enforcement of driving while impaired at the reduced level of

         alcohol.” Id. at *1132.

         {¶25} We find the reasoning in Machnics provides useful guidance on

this particular issue and apply it accordingly. Here, Sergeant Davis testified

that he very seldom encounters drivers exhibiting overwhelming signs of

intoxication, such as “stumbling and falling, falling down.” He also testified

that most of the drivers he has eventually arrested for OVI present similarly

to Appellee. Further, we find the reasoning in Machnics to be especially

applicable to the present case, as Appellee was under the age of twenty-one.

At the time Appellant was arrested for OVI, she was only nineteen years old,

well under the legal drinking age of twenty-one. The reasoning in Machnics

discusses the presumption of intoxication and signs of impairment at the

reduced legal limit of .08, as contained in R.C. 4511.19(A)(1)(d). However

Appellee, being under age, was subject to the even lower limit of .02,

contained in R.C. 4511.19(B)(3).2

         {¶26} Based on the totality of the circumstances (i.e., Appellee’s high

rate of speed, the time of her stop, the condition of her eyes, and the strong

smell of alcohol emanating from the vehicle as well as Appellee’s breath),
2
  Sergeant Davis was cognizant of this fact at the time of the stop and can be heard on the dash cam video
informing Appellee that the limit of .08 did not apply to her, but rather a limit of .02 applied as she was
underage.
Athens App. No. 16CA8                                                       22

we find that Sergeant Davis had sufficient information to have a reasonable,

articulable suspicion that Appellee was driving under the influence of

alcohol, and thus to expand the scope of the traffic stop to order her to

perform field sobriety testing. As such, we conclude that the trial court

reached an incorrect legal conclusion in analyzing the facts and we therefore

sustain Appellant’s sole assignment of error. Accordingly, the judgment of

the trial court is reversed and this matter is remanded for further

proceedings.

                                               JUDGMENT REVERSED
                                               AND REMANDED FOR
                                               FURTHER PROCEEDINGS
                                               CONSISTENT WITH THIS
                                               OPINION.
Athens App. No. 16CA8                                                            23

Hoover, J., dissenting:

      {¶27} I respectfully dissent from the lead opinion. I would affirm the

trial court’s judgment granting Burkhart’s Motion to Suppress.

      {¶28} Contrary to the assertion in the lead opinion, the trial court did

not apply an incorrect legal standard in its analysis. The trial court’s decision

did not state, as alluded to in paragraph 16 of the lead opinion, “that

Sergeant Davis was required to have a reasonable, articulable suspicion of

criminal activity at the time he ordered Appellee to exit the vehicle * * *.”

Instead, the trial court stated in its findings that it “considered the eleven

factors enumerated in State v. Evans, 127 Ohio App.3d 45 [sic] (11th Dist.,

1998)” to find that “there were not sufficient facts to support expanding the

scope of the traffic stop to an OVI investigation.” As the lead opinion

recognizes, this Court has utilized the Evans factors before. In State v.

Coates, 4th Dist. Athens No. 01CA21, 2002 WL 851765, **4-5 (Feb. 25,

2002), we stated the following:


      Before an officer may order an individual to perform field-

      sobriety tests, he or she must have a reasonable, articulable

      suspicion that the individual was operating a motor vehicle

      while under the influence of alcohol. See Columbus v.

      Anderson (1991), 74 Ohio App.3d 768, 600 N.E.2d 712, citing
Athens App. No. 16CA8                                                     24

     State v. Bobo (1988), 37 Ohio App.3d 177, 524 N.E.2d 489.


     When reviewing whether a police officer had a reasonable,

     articulable suspicion to order an individual to perform field-

     sobriety tests, the officer's decision “must be viewed in light of

     the totality of the surrounding circumstances.” State v. Bobo, 37

     Ohio App.3d 177, 524 N.E.2d 489, paragraph one of the

     syllabus. In State v. Evans (1998), 127 Ohio App.3d 56, 711

     N.E.2d 761, fn. 2, the Twelfth District Court of Appeals noted

     several factors a court should consider when reviewing the

     totality of the circumstances surrounding an officer's decision to

     administer field-sobriety tests. The Twelfth Appellate District

     noted the following factors, with no single one being

     determinative of this issue:


           (1) the time and day of the stop (Friday or

           Saturday night as opposed to, e.g., Tuesday

           morning); (2) the location of the stop (whether

           near establishments selling alcohol); (3) any

           indicia of erratic driving before the stop that may

           indicate a lack of coordination (speeding, weaving,
Athens App. No. 16CA8                                                    25

           unusual braking, etc.); (4) whether there is a

           cognizable report that the driver may be

           intoxicated; (5) the condition of the suspect's eyes

           (bloodshot, glassy, glazed, etc.); (6) impairments

           of the suspect's ability to speak (slurred speech,

           overly deliberate speech, etc.); (7) the odor of

           alcohol coming from the interior of the car, or,

           more significantly, on the suspect's person or

           breath; (8) the intensity of that odor, as described

           by the officer (“very strong,” “strong,”

           “moderate,” “slight,” etc.); (9) the suspect's

           demeanor (belligerent, uncooperative, etc.); (10)

           any actions by the suspect after the stop that might

           indicate a lack of coordination (dropping keys,

           falling over, fumbling for a wallet, etc.); and (11)

           the suspect's admission of alcohol consumption,

           the number of drinks had, and the amount of time

           in which they were consumed, if given.

           Id.

     {¶29} More recently, this Court set forth the standards to apply when
Athens App. No. 16CA8                                                      26

determining whether a traffic stop may be expanded in order to investigate

whether an individual is under the influence of alcohol.

      Once an officer has lawfully stopped a vehicle, the officer must

      “carefully tailor” the scope of the stop “to its underlying

      justification,” and the stop must “last no longer than is

      necessary to effectuate the purpose of the stop.” Florida v.

      Royer (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d

      229; see, also, State v. Gonyou (1995), 108 Ohio App.3d 369,

      372, 670 N.E.2d 1040, 1041; State v. Birchfield (Aug. 26,

      1997), Ross App. No. 97 Ca 2281, unreported. An officer may

      lawfully expand the scope of the stop and may lawfully

      continue to detain the individual if the officer discovers further

      facts which give rise to a reasonable suspicion that additional

      criminal activity is afoot. See, e.g., Terry, supra; State v.

      Robinette (1997), 80 Ohio St.3d 234, 240, 685 N.E.2d 762.



      Thus, if a law enforcement officer, during a valid traffic stop,

      ascertains “reasonably articulable facts giving rise to a

      suspicion of criminal activity, the officer may then further

      detain and implement a more in-depth investigation of the
Athens App. No. 16CA8                                                     27

      individual.” Id., 80 Ohio St.3d at 241, 685 N.E.2d at 768.

      Consequently, when a law enforcement officer stops an

      individual for a minor traffic offense, generally the officer may

      not expand the scope of the stop unless the officer observes

      additional facts giving rise to a reasonable suspicion of other

      criminal activity.



      An officer conducting a routine traffic stop may, therefore,

      expand the stop's scope in order to investigate whether the

      individual stopped is under the influence of alcohol and may

      continue to detain the individual to confirm or dispel his

      suspicions if the officer observes additional facts during the

      routine stop which reasonably lead him to suspect that the

      individual may be under the influence. See State v. Angel (Sept.

      21, 2001), Miami App. No.2001-CA-11, unreported; State v.

      Strausbaugh (Dec. 3, 1999), Montgomery App. No. 17629,

      unreported; State v. Strassman (Nov. 20, 1995), Athens App.

      No. 98 CA 10, unreported. * * *

State v. Hehr, 4th Dist. Washington No. 04CA10, 2005-Ohio-353, ¶¶

16-18.
Athens App. No. 16CA8                                                        28

       {¶30} In the case sub judice, the following findings of fact

were supported by competent, credible evidence; and therefore, I

defer to the findings as determined by the trial court:

   1. Burkhart was stopped by Sergeant Davis for speeding.

   2. No other traffic violations were observed.

   3. Sergeant Davis observed a strong odor of an alcoholic beverage

      emanating from the vehicle while speaking with Burkhart.

   4. There was a passenger in the vehicle.

   5. Burkhart denied consuming alcohol.

   6. Sergeant Davis noticed that her eyes were red, bloodshot, and glossy.

   7. Sergeant Davis testified that Burkhart’s speech, movements, and

      comprehension were within normal ranges and that he did not

      consider them to be indicative of impairment.

   8. Sergeant Davis testified that he instructed Ms. Burkhart to exit her

      vehicle to do field sobriety testing based on the strong odor of

      alcoholic beverage, red/bloodshot, glassy eyes, and the speed

      violation.

      {¶31} Next, analyzing the facts of the case under the standards set

forth in Hehr and Coates (which utilized the factors in Evans), I would find

that the trial court reached the correct conclusion. According to Hehr,
Athens App. No. 16CA8                                                            29

Sergeant Davis would be permitted to expand the stop’s scope in order to

investigate whether Burkhart was under the influence of alcohol and would

be permitted to continue to detain Burkhart to confirm or dispel his

suspicions if he observed additional facts during the routine stop which

reasonably led him to suspect that Burkhart may be under the influence.

      {¶32} Sergeant Davis conceded that he took this “beyond a speeding

ticket when he asked her to get out of the car.” (Tr. Page 47) Therefore,

when the trial court focused its attention on what comprised Sergeant

Davis’s reasonable articulable suspicion at the time that he was having

Burkhart exit the vehicle to perform field sobriety testing, the trial court did

not engage in a faulty analysis as the lead opinion espouses. In this case, it

seems that the first event of Sergeant Davis asking Burkhart to exit the

vehicle coincided with the second event of Sergeant Davis deciding to

expand the scope of the traffic stop to perform field sobriety tests.

      {¶33} Prior to asking Burkhart to exit the vehicle, there was sparse

information to justify an expansion of the scope of the traffic stop. The trial

court found that Sergeant Davis instructed Burkhart to exit her vehicle to do

field sobriety testing based on the strong odor of alcoholic beverage,

red/bloodshot, glassy eyes, and the speed violation. However, at this time,

Sergeant Davis was not even sure if the odor was originating from Burkhart
Athens App. No. 16CA8                                                            30

or her passenger. It is also noteworthy that there was a discrepancy in

Sergeant Davis’s report of when he noticed that Burkhart’s eyes were red.

The report stated that Sergeant Davis did not notice Burkhart’s red eyes until

she stepped out of the car. (Tr. Page 36) On the other hand, during the

suppression hearing, Sergeant Davis claimed that the report was wrong and

that he noticed her red eyes before she got out of the car and not after. (Tr.

Page 47) Lastly, a speed violation is not necessarily indicative of driving

under the influence.

      {¶34} Even after Burkhart exited the vehicle, she was cooperative in

every way. (Tr. Pages 19-20) Sergeant Davis further testified that Burkhart

did not fumble her purse (Tr. Page 20) nor did she have slurred speech (Tr.

Page 20). Sergeant Davis testified that only after Burkhart was out of the

vehicle could he “smell [an odor of an alcoholic beverage] coming from her

breath.” (Tr. Page 7)

      {¶35} In addition, when applying the analysis of Coates which utilizes

the eleven factors in Evans, I would find “in light of the totality of the

surrounding circumstances” that Sergeant Davis did not have a reasonable,

articulable suspicion to expand the scope of the traffic stop and to order

Burkhart to perform field-sobriety tests.
Athens App. No. 16CA8                                                            31

      {¶36} The traffic stop was at approximately 1:45 a.m. on an early

Friday morning where Stimson Avenue joins the highway. Other than

speeding, there was no “indicia of erratic driving before the stop” that would

indicate a lack of coordination (speeding, weaving, unusual braking, etc.);

no cognizable report that the driver may be intoxicated was made; and there

was a discrepancy regarding the timing of when Sergeant Davis actually

noticed the condition of Burkhart’s eyes as red, bloodshot, and glassy. No

impairments of Burkhart’s ability to speak (slurred speech, overly deliberate

speech, etc.) were observed. At the time of the initial traffic stop, although

Sergeant Davis testified that he noticed the “strong odor of an alcoholic

beverage, “ (Tr. Page 5) he was not sure if the odor of alcohol coming from

the interior of the car was from Burkhart or her passenger. He just knew that

the odor was emanating out of the vehicle at the time. (Tr. Page 7) Sergeant

Davis testified that Burkhart’s demeanor was cooperative. Burkhart further

did not exhibit any indicia of a lack of coordination. Sergeant Davis testified

that Burkhart did not fumble her purse or slur her speech. (Tr. Page 20)

Lastly, Burkhart did not admit to consuming alcohol.

      {¶37} Under similar circumstances, other Ohio appellate courts have

declined to find that reasonable, articulable suspicion justified expanding the

scope of the traffic stop. See State v. Reed, 7th Dist. Belmont No. 05BE31,
Athens App. No. 16CA8                                                          32

2006-Ohio-7075 (non-moving violation coupled with a slight smell of

alcohol, red glassy eyes, and the admission of drinking two beers did not

provide the officer with any evidence that defendant was impaired); State v.

Kennard, 6th Dist. Huron, 2001 WL 605106 (June 1, 2001) (license plate

violation, weaving within lane, odor of alcohol, non-slurred speech, and

admission of drinking “one beer” does not constitute reasonable articulable

suspicion of driving under the influence); State v. Swartz, 2d Dist. Miami

No. 2008CA31, 2009-Ohio-902 (left turn without signaling, odor of alcohol

on driver’s breath, and glassy/bloodshot eyes does not constitute reasonable

and articulable suspicion of driving under the influence); State v. Brickman,

11th Dist. Portage No. 2000-P-0058, 2001 WL 635954 (June 8, 2001)

(speed violation, weaving within lane, mild odor of alcohol, red/glassy eyes

and admission of drinking “a beer” does not constitute reasonable articulable

suspicion of driving under the influence); State v. Spillers, 2d Dist. Darke

No. 1504, 2000 WL 299550 (Mar. 24, 2000) (reasonable suspicion does not

exist where an officer is relying on de minimis traffic violation, a slight odor

of alcohol, and the admission of having consumed “a couple” of beers);

State v. Derov, 7th Dist. Mahoning No. 07MA71, 2009-Ohio-5513 (expired

license plate tags, red glassy eyes, strong smell of alcohol, no trouble getting
Athens App. No. 16CA8                                                           33

out of vehicle does not constitute reasonable suspicion necessary to justify

conducting field sobriety tests).

      {¶38} When analyzing the facts of this case under the standards set

forth by this Court in Hehr and Coates, I would find that the trial court did

not err in its judgment granting Burkhart’s motion to suppress. I am not

being unmindful of Sergeant Davis’s difficult decisions he must make in

order to protect the public safety. However, in these circumstances, when the

driver (1) is cooperative; (2) has not exhibited any indicia of impaired or

erratic driving (other than speeding); (3) has not demonstrated any

impairments to speech; and (4) has no lack of coordination, to reverse the

trial court’s judgment granting the motion to suppress may create “ ‘the

unfortunate impression that the Court is more interested in upholding the

power of the State than in vindicating individual rights.’ ” Pennsylvania v.

Mimms, 434 U.S. 106, 124, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (Stevens,

J., dissenting), quoting Idaho Dept. of Employment v. Smith, 434 U.S. 100,

105, 98 S.Ct. 327, 54 L.Ed.2d 324 (1977) (Stevens, J., dissenting).

      {¶39} Therefore, I respectfully dissent.
Athens App. No. 16CA8                                                          34

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED FOR FURTHER PROCEEDINGS and that Appellant recover
of Appellee any costs herein.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens County Municipal Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Dissents with Dissenting Opinion.

                                        For the Court,

                                 BY: ____________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
