[Cite as State v. Andrews, 2017-Ohio-1383.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   C.A. CASE NO. 2016-CA-13
                                                    :
 v.                                                 :   T.C. NO. TRC1509207
                                                    :
 ARTIS ANDREWS, III                                 :   (Criminal Appeal from
                                                    :    Municipal Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                 Rendered on the ___14th ___ day of _____April_____, 2017.

                                               ...........

BETSY A. DEEDS, Atty. Reg. No. 0076747, 510 West Main Street, Fairborn, Ohio 45324
     Attorney for Plaintiff-Appellee

KIRIAKOS KORDALIS, Atty. Reg. No. 0089697, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                              .............

DONOVAN, J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Artis Andrews, III.

Andrews appeals from his judgment entry of conviction, following a plea of no contest, to

one charge of operating a vehicle under the influence of alcohol, in violation of R.C.

4511.19(A)(1)(a), his third such offense. Three remaining charges were dropped in
                                                                                        -2-


exchange for his plea, namely driving under a twelve-point suspension, in violation of R.C.

4510.037(J), a marked lanes violation, in violation of R.C. 4511.33, and refusing to submit

to a chemical test, in violation of R.C. 4511.19(A)(2). Andrews’ judgment entry of

conviction provides that he “is sentenced to 365 days of jail, no good time, credit for 2

days, suspend 245 days with the remaining 118 days to be served in the Greene County

Jail, specifically in the 90 day Greene Leaf Therapeutic Community and any aftercare

programs recommended.” The Entry provides that the court “takes judicial notice that

Defendant has voluntarily agreed to enter the Greene Leaf program. * * * Any violation of

this Order will result in Defendant’s incarceration at the Greene County Jail, general

population.” This Court suspended Andrews’ sentence pending his appeal.

      {¶ 2} Andrews was stopped and cited on October 12, 2015, at approximately 1:08

am. He pled not guilty on October 13, 2015, and on December 18, 2015, Andrews filed

a Motion to Suppress, challenging the validity of his traffic stop and detention, the

administration of field sobriety tests, the existence of probable cause for arrest, and the

advisement of his Miranda rights.

      {¶ 3} At the hearing on the motion, Paige Miranda testified that she has been

employed by the State Highway Patrol since 2012. She stated that she has been trained

to detect whether an individual is under the influence of alcohol or drugs of abuse, and

that pursuant to the National Highway Traffic and Safety Administration Manual

(“NHTSA”), she is trained and certified to administer field sobriety tests, namely the “HGN

test,” the “one-legged stand test,” and the “walk-and-turn test.” Miranda stated that she

works five nights a week and that at “least once a night” she comes into contact with

someone under the influence of alcohol. She stated that “[r]ed glassy eyes, the odor of
                                                                                            -3-


alcoholic beverage,” slurred speech and fumbling with papers in her experience suggest

that a person may be impaired.

       {¶ 4} Miranda stated that on October 12, 2015, she was patrolling the roads of

Greene County in her cruiser and in uniform when she observed Andrews “travelling fast

on Grange Hall.” Miranda stated that she is trained in the visual estimation of speed.

She stated that the posted speed limit there is 35 miles per hour, and that when she

turned around to pursue Andrews, she had to “catch up” to his vehicle. She stated that

she “didn’t have a significant distance to track - - pace his speed.” According to Miranda,

she observed Andrews stop at the light on Grange Hall Road at Pentagon Boulevard, and

“after he traveled passed [sic] that light he went outside of his lane on the right-hand side.”

She testified that Andrews “went out the right side about half a tire width.” She stated

that there was nothing in the roadway that made it impossible for him to stay in his lane,

although she stated that there was a “slight bump within the roadway.”

       {¶ 5} Miranda testified that she “activated my pursuit lights to stop the vehicle. He

continued northbound on Grange Hall and he turned left onto Colonel Glenn,” stopping

“on the right-hand side of Colonel Glenn.” She stated that she approached the driver’s

side of the vehicle and “told him why I stopped him and he said that he didn’t travel outside

of his lane.” She stated that Andrews’ girlfriend was in the car with him in the front

passenger seat.

       {¶ 6} Miranda testified, “I asked him for his license, he was kind of going through

his pockets looking for his license, he said he didn’t have one, so I asked him to exit the

vehicle.” Miranda testified that while Andrews told her that “he had an ID, he didn’t show

me an ID.” Miranda testified that when Andrews exited his vehicle, she detected a strong
                                                                                          -4-


odor of alcohol, and that he “had red, glassy eyes.” Once inside her cruiser, Miranda

stated that Andrews orally advised her of his Social Security Number. She testified that

she continued to smell a “strong” odor of alcohol coming from Andrews. According to

Miranda, while Andrews initially told her, while in his vehicle, that he was travelling from

the Kings Table Bar, once in her cruiser, he told her that he was coming from the Kevin

Hart Comedy Club. Miranda testified that she asked Andrews “how much alcohol he had

consumed, he never gave an exact answer, he kind of dodged my question, I had to ask

him several times.” She stated that she entered his Social Security Number into her

computer and learned that his license was suspended. Miranda testified that she “asked

him who the vehicle came back to because he was driving with a suspended license.”

She stated that Andrews “acted at first as if he didn’t know who the registered owner was;

through conversation I finally got it out of him who the owner was and then I confirmed it

with the front passenger.”     Miranda stated that the owner of the vehicle was the

grandfather of Andrews’ girlfriend.

       {¶ 7} Miranda testified that she asked Andrews to perform field sobriety tests, and

that he agreed to do so. She stated that he was argumentative throughout the tests, and

that he “would interrupt me and not let me explain how to do them.” She stated that she

asked Andrews, because of his tall height relative to hers, to sit on a nearby brick wall for

the horizontal gaze nystagmus test (“HGN”). According to Miranda, when she asked

Andrews to sit on the wall, “he fell back, he caught himself,” and he “did have balance

troubles.” At this time, Miranda testified that she continued to smell a strong odor of

alcohol emanating from Andrews and to observe his red, bloodshot eyes. She stated

that she conducted the HGN test in accordance with the NHTSA training she received,
                                                                                             -5-


and that in the course thereof she looked for nystagmus, or involuntary jerking of the eyes.

She stated that she specifically looked for six clues of intoxication, namely lack of smooth

pursuit, distinct nystagmus at maximum deviation, and onset of nystagmus prior to forty-

five degrees in each eye. Miranda stated that she observed all six clues in the course of

the test. According to Miranda, the presence of four clues results in failure of the test.

       {¶ 8} Miranda stated that she also conducted a vertical gaze nystagmus test, which

indicates “approximately how much alcohol someone has consumed.” She stated that

“if they have consumed a lot of alcohol they’re going to get vertical nystagmus.” Miranda

testified that she observed vertical nystagmus in both of Andrews’ eyes.

       {¶ 9} Miranda stated that she next asked Andrews to perform the walk-and-turn

test, and that she looked for eight clues of intoxication in the course of the test consistent

with her NHTSA training. She stated that Andrews exhibited six clues, namely that he

began the test before she completed the instructions, moved his feet to maintain balance

during the instructions, raised his arms approximately six inches, stepped off the line while

walking, turned incorrectly, and stopped walking to steady himself. Miranda stated that

the presence of two clues results in failure of the test.

       {¶ 10} Miranda testified that she next administered, consistent with her NHTSA

training, the one-leg stand test, looking for four clues of intoxication. She stated that

Andrews exhibit three clues by raising his arms approximately six inches, swaying while

balancing, and putting his foot down. Miranda stated that the presence of two clues

results in failure of the test.

       {¶ 11} Miranda testified that following the administration of the three tests, she

arrested Andrews for OVI and placed him in her cruiser after conducting a pat down
                                                                                          -6-

search. She stated that at that time she advised him of his Miranda rights. Miranda

stated that she based her decision to arrest Andrews on the “totality of the circumstances,”

including Andrews’ “driving, the strong odor of alcohol, the red glassy eyes, the field

sobriety tests.” When asked if any further observations contributed to her decision,

Miranda replied, “Yes.    When I got out of the vehicle to talk to the passenger, the

defendant called me a f*****g b****.” She acknowledged that in her narrative report she

indicated that Andrews’ emotions were high and low, and she testified that Andrews

“would be okay at one point, cooperative, and then he would have an attitude with me.”

       {¶ 12} On cross-examination, Miranda stated that she and Andrews were

travelling in opposite directions when she initially observed him, and that he “appeared to

be traveling above the posted speed limit.” She stated that she turned around to pursue

him, catching up to him before the red light. She stated that he went outside of the lane

by half a tire width to the right from the left lane. Miranda stated that she did not observe

Andrews weaving. After she activated her lights, Miranda stated that Andrews “waited

until the last minute to make a left turn onto Colonel Glenn.” She stated Andrews made a

normal turn.

       {¶ 13} Defense counsel played a video of the traffic stop recorded from the camera

in Miranda’s cruiser. Miranda stated that the video commenced after she observed him

and believed him to be speeding. In the course of viewing the video, the following

exchange occurred:

               Q. * * *

               Now, we just watched the cruiser video of him allegedly leaving his

       lane of travel. On the video it looked like he touched the lane, the indicator
                                                                                        -7-


      lane, the white lane on the ground, he never went over from what the video

      showed, yes or no?

              A. You’re asking me?

              Q. Yes.

              A. He went - -

              Q. From what we just saw - -

              A. - - over half a tire width, approximately half a tire width.

              Q. Okay.

              A. Outside of the dotted white line.

              Q. Outside of the dotted white line?

              A. Correct.

              Q. Okay. To me, on the video it looked like he touched the line

      only.

              MS. DEEDS: I’m going to object. The - - the trooper can’t testify to

      what Mr. Kordalis saw or didn’t see on the video.

              ***

              COURT: Objection sustained.

      {¶ 14} Miranda acknowledged that she did not include in her narrative report her

belief that Andrews was speeding when she initially observed him. She testified that she

“didn’t pace him at a - - an exact speed so I didn’t put it in there.” Miranda stated that

she did not believe the slight bump in the road caused Andrews to leave his lane of travel.

When asked to describe Andrews’ demeanor when she initially approached his vehicle,

Miranda stated that Andrews was “calm.” When asked if she could discern whether the
                                                                                       -8-


odor of alcoholic beverage she detected was coming from Andrews or his passenger,

Miranda responded, “When I’m talking to him I can smell it coming from his breath.”

      {¶ 15} Miranda stated that she asked Andrews to exit his vehicle when he could

not produce identification, and that she detained him to verify his identity. She stated

that she placed him in the back of her cruiser. Miranda stated that Andrews did not

exhibit slurred speech. The following exchange occurred:

             Q. * * * So he is in the back of your car - - the back of your cruiser,

      did you ask him if he had anything to drink?

             A. I did.

             Q. And what was his response?

             A. He said he was cool.

             Q. He was cool?

             A. Uh-huh.

             Q. Did he ever state that he never had anything to drink?

             A. I don’t recall exactly how many times I asked him, but at the end

      the last time I asked him I said are you saying that you don’t - - you haven’t

      consumed any alcohol - -

             Q. Uh-huh.

             A. - - and he said yes.

             Q. Okay.

             A. He didn’t directly tell me I haven’t consumed any alcohol, he just

      kind of dodged the question each time.

             ***
                                                                                       -9-


              Q. * * * Did he indicate that he had already gone through this, and

       by that I mean, that he was under suspension for a possible OVI?

              A. He said he had served jail time.

       {¶ 16} Miranda stated that Andrews’ passenger advised her that she had been

drinking. She testified that she had Andrews sit on the wall to conduct the HGN test

because “we just need to make sure that we were twelve to fifteen inches away and

slightly above eye level” to properly conduct the test. She stated that she used a pen as

the stimulus for the test, and that it was 12 to 15 inches from Andrews’ face. She stated

that in the course of the test, “you’re going to take their eye to where you can’t see the

white anymore,” and that there is a time limit of “no less than four seconds, no more than

thirty.” When asked whether the horizontal or vertical gaze nystagmus test is more

accurate, Miranda responded, pursuant to her training manual, “You have to do them all

together * * * for it to be a completed test.”

       {¶ 17} Miranda stated that when she placed Andrews in her cruiser, he was

detained and not free to go. She stated that she asked him a few questions about where

he was going and coming from, and that she did not believe that such questions would

elicit an incriminating response.

       {¶ 18} On redirect examination, the following exchange occurred:

              Q. * * *

              Is there a definitive turn lane to make a left onto Colonel Glenn?

              A. Yes.

              Q. * * * Did the defendant make his left turn by getting into the turn

       lane when it was appropriate to get into the turn lane?
                                                                                           -10-


               A. No.

               Q. * * * Did he cross over that solid white line to move over into the

       turn lane at the last second?

               A.   Yes.

               Q. * * * So he crossed that line?

               A. Yes.

               Q * * * Trooper Miranda, have you had the occasion to ever go back

       and watch any of your videos after you’ve conducted stops?

               A. Yes.

               Q. * * * Do you - - is it common for you to remember things that aren’t

       clear on the video, remember things that you saw with your own eyes that

       maybe don’t come out as well on the video?

               A. Yes.

       {¶ 19} Miranda stated that when she initially placed Andrews in her cruiser, he was

not in handcuffs and that she did not tell him he was under arrest at that time. On re-

cross-examination, she stated that approximately half a tire width went outside of the

dotted white line, so that half of the tire was in the middle of the dotted line and the other

half was to the right of the line.

       {¶ 20} At the conclusion of the hearing, in instructing the parties to file post-hearing

briefs, the court indicated, “ * * * the two issues, though, that I would request that you

concentrate on would be the one about marked lanes; two, would be whether that was

considered custody when defendant was placed inside the vehicle for identification

purposes.”
                                                                                          -11-


       {¶ 21} Andrews filed his post-hearing memorandum on February 19, 2016. He

argued therein that Miranda lacked a reasonable articulable suspicion that he committed

a marked lanes violation. Andrews asserted as follows:

              The Defense would assert that the best evidence as to whether a

       marked lane violation occurred on the early morning of October 12, 2015 is

       the cruiser video. The video is clear and objective. At 1:08:30, it is clear

       on the video that the Defendant does touch the dotted white line, yet does

       not cross the dotted white line to the right. It is also clear on the video that

       the Defendant did hit a bump in the road that made the vehicle shift and

       touch the dotted white line.

       {¶ 22} Andrews directed the court’s attention to State v. Marcum, 2013-Ohio-

2652, 993 N.E.2d 1289 (5th Dist.). He argued that the “case law on when a marked lane

violation has occurred seems to indicate that an individual must completely cross over

the dividing line on the road” to violate R.C. 4511.33. He argued that “various appellate

districts * * * have come to the conclusion that driving on a marked lane is not a violation

of R.C. 4511.33.” Andrews argued that the video reflects that he “at best touches the

dotted line and does not go over half a tire width as Trooper Miranda indicated.”

       {¶ 23} Citing State v. Schwieterman, 2d Dist. Darke No. 1588, 2003-Ohio-615, and

State v. Shaffer, 2013-Ohio-3581, 4 N.E.3d 400 (3d Dist.), Andrews argued that he “was

driving his vehicle as nearly as practicable.” He asserted that in Schwieterman, this

Court “made it clear that they believed that the legislature did not want motorists to be

punished when road debris interfered with the motorist[’]s ability to stay in the lane.”

Andrews argued that in Shaffer, “the court reasoned that ‘as nearly as practicable’
                                                                                          -12-


inherently contemplates some inevitable touching of the lane during routine driving,

especially when encountering imperfections in the roadway, and that such incidents do

not constitute a marked lane violation.” He cited Miranda’s testimony that Andrews hit a

bump in the road, which he asserts is reflected in the video. Andrews argued that he did

not commit a marked lane violation, and that such a conclusion is supported by Miranda’s

testimony and the video. As a result, he argued, Miranda lacked reasonable articulable

suspicion for the stop, rendering all evidence obtained subject to suppression.

       {¶ 24} Andrews further asserted that Miranda lacked a sufficient basis to request

that he submit to the field sobriety tests. He cited State v. Spillers, 2d Dist. Darke No.

1504, 2000 WL 299550 (March 24, 2000), and asserted that this Court “held that an officer

did not have reasonable and articulable suspicion of a DUI violation that would justify the

administration for FSTs.” He argued that therein, an officer observed “three or four

marked lane violations, which the court found to be de minimis, a slight odor of alcohol,

and Spillers’ admission that he had consumed a ‘couple of beers.’ ” Andrews further

cited State v. Dixon, 2d Dist. Greene No. 2000-CA-30, 2000 WL 1760664 (Dec. 1, 2000),

asserting that therein this Court “concluded that the officer’s observations that the

Defendant had glassy, bloodshot eyes, an odor of alcohol and an admission of consuming

one or two beers was not enough to intrude upon ‘one’s liberty.’ ”           Andrews noted

Miranda’s testimony that she did not observe him weaving and that she did not indicate

that he committed any other violations. Andrews asserted that the video demonstrates

that he exited his vehicle when asked to do so without bracing himself and without

difficulty, and that he walked to the cruiser without stumbling. He asserted that it “is clear

from the video’s audio that the Defendant was not slurring his speech and was responsive
                                                                                         -13-


to all of the Trooper’s questions.” According to Andrews, while in the cruiser, he advised

Miranda that he had not been drinking and that he was driving his passenger home

because she had been doing so, which the passenger corroborated.

       {¶ 25} Andrews argued that statements were obtained from him in violation of his

rights. He argued that “prior to having the Defendant sit in the back of her cruiser, the

Trooper at a minimum knew that she would most likely be arresting the Defendant for

driving under suspension.”     He asserted that “when determining what a reasonable

person in the Defendant’s situation would have felt, it must be done through the prism of

an individual who is under suspension.” Andrews asserted that he, “while in the back of

the cruiser, had to of [sic] thought that he was in custody and that he would not be

released that evening solely because of the fact that he did not possess a valid drivers

[sic] license. Therefore, the custodial branch of Miranda would be satisfied.”

       {¶ 26} Finally, Andrews asserted that the “interrogation portion of Miranda would

also be satisfied.”   He argued that Miranda “stated at the hearing that while the

Defendant was in the back of the cruiser that she did ask him questions,” which the video

verified. According to Andrews, since she knew that he did not have a valid license,

Miranda “had a good idea that the Defendant would at least be cited for a driving under

suspension charge.     The Trooper at that time should have read the Defendant his

Miranda Rights prior to questioning him about his whereabouts that evening.”

       {¶ 27} The State filed its opposing memorandum on February 26, 2016. The

State asserted that Andrews’ traffic stop was proper, noting that Miranda testified that she

observed the violation, and that in addition, as Andrews “traveled he made a late lane

change into the turn lane to turn left onto Colonel Glenn Highway, again clearly traveling
                                                                                          -14-


over the solid line dividing the through lane from the turn lane.” The State directed the

court’s attention to State v. McEldowney, 2d Dist. Clark No. 06-CA-138, 2007-Ohio-6690.

According to the State, the McEldowney Court “conducted an extensive analysis

regarding whether a marked lane violation may be the basis for a traffic stop. Within the

analysis, the Court referred to the Ohio Supreme Court’s decision in State v. Batchili [,113

Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282], finding that a single center lane

marker violation by only about a tire’s width was a lawful basis for a traffic stop.” Andrews

argued that the Second District “decided to follow the Supreme Court’s lead and follows

the existing district precedent.”

       {¶ 28} The State asserted that although the violation may be difficult to observe on

the video, Miranda “consistently testified that Defendant’s right tire crossed over the

center dividing line by half a tire’s width.” The State noted that Miranda’s “cruiser is not

equipped with high definition recording equipment.”         The State argued that “video

recordings vary in quality and are certainly not the same as a trained Ohio State Highway

Patrol Trooper viewing the events as they occurred directly in front of her.” The State

argued that Miranda’s testimony was further consistent over “a lengthy and repeated

cross examination,” and that Andrews “committed a second marked lanes violation that

is crystal clear on the video when he drove over the solid white line dividing the through

traffic lane from the turn lane.”

       {¶ 29} Finally, the State argued that Andrews “was not in custody for the purposes

of the Miranda protections,” and that “Miranda does not apply to Terry detentions.”

According to the State, after Andrews failed to produce identification, he was placed in

Miranda’s cruiser, and “[t]his intrusion was brief, Defendant was not handcuffed, nor was
                                                                                            -15-


he told he was under arrest.”

       {¶ 30} In overruling Andrews’ motion to suppress, the court determined as

follows:

              The Court finds that Defendant had reasonable and articulable

       suspicion to stop Defendant for a marked lanes violation. It is well settled

       that where an officer has an articulable reasonable suspicion to stop a

       motorist for any criminal violation, including a minor traffic violation, the stop

       is constitutionally valid. * * * In the case sub judice, prior to the stop,

       Trooper Miranda observed the vehicle being driven by Defendant travel

       over the white dashed line by one-half tire width. Defendant argues that

       the video of the stop indicates that the vehicle did not go over the line. He

       further argues that if the tire did go over the line that it was due to a bump

       in the road. The Court has also reviewed the video and notes that it is of

       low quality. As a result, the Court cannot discern from the video how far

       over the line the tire travelled. Therefore, the Court relies on the testimony

       of Trooper Miranda who was credible in her testimony that the tire travelled

       over the line by one-half tire width and makes the finding that the vehicle

       did travel by one-half tire width into the adjacent lane. The Court further

       finds that any bump in the road did not impede the ability to maintain the

       vehicle within its lane of travel. In making this finding, the Court notes that

       it relies on the testimony of Trooper Miranda who was credible in this regard.

       No contradicting evidence was presented.           Therefore, the trooper had

       reasonable and articulable suspicion to stop the vehicle.
                                                                                     -16-


       The Court further finds that the trooper had reasonable and

articulable suspicion to detain the Defendant for OVI. Upon approaching

the Defendant’s vehicle the trooper observed that the Defendant’s eyes

were red and glassy and detected a strong odor of an alcoholic beverage.

She further knew that the vehicle had travelled over the line by one-half of

a tire width. Although the basis for the stop was de minimis, the totality of

these observations rise to the level of reasonable and articulable suspicion

to detain Defendant and request him to exit the vehicle in order to determine

the source of the odor since Defendant did have a passenger in the vehicle

with him.

       The Court finds that no Miranda violation occurred as Defendant was

not in custody when the trooper initially placed Defendant inside the cruiser

and no evidence of any interrogation was presented after Defendant was

advised of his arrest and of his Miranda rights.           At issue is whether

Defendant was in custody at the time when he was placed inside the cruiser

while the trooper verified his identity which would require the trooper to

advise Defendant of his Miranda rights. The Court finds that an officer may

arrest a person charged with a minor misdemeanor if the person cannot or

will not offer sufficient evidence of his or her identity. * * * Therefore, it was

not unreasonable for the officer to request Defendant to sit inside her cruiser

while she verified his identity since he did not produce any state issued

identification, but rather only an oral representation of his identity. This

detention to identify the Defendant does not amount to a full custodial arrest
                                                                                -17-


which would trigger Miranda.

       The Court finds that the trooper administered the field sobriety tests

in substantial compliance with her training and with NHTSA. The Court

notes that the Motion to Suppress argued lack of substantial compliance in

general terms. As such, the State must only present evidence in general

terms that it substantially complied with the regulations.

       Lastly, the Court finds that Trooper Miranda had probable cause to

arrest the Defendant for an OVI. Probable cause exists when the arresting

officer has knowledge of facts or circumstances that would warrant a

reasonable, prudent person to believe that the person may have committed

a crime. * * * At the time of the arrest for OVI the trooper knew that she

had observed Defendant’s vehicle travel into the adjacent lane of travel by

one-half tire width, that the Defendant’s eyes were red and glassy, that she

detected a strong odor of an alcoholic beverage emitting from Defendant’s

vehicle which she continued to detect while Defendant was inside of her

cruiser and outside, that Defendant was coming from a bar in the early

morning hours, that Defendant had failed all of the field sobriety tests as

well as her observations of him while he performed those tests, that

Defendant had trouble maintaining his balance while sitting on the wall, and

that Defendant’s emotions fluctuated.        Based on the totality of the

circumstances, the Court finds that the trooper had probable cause to arrest

Defendant for an OVI.

{¶ 31} Andrews asserts two assignments of error herein. His first assignment of
                                                                                          -18-


error is as follows:

              THE TRIAL COURT COMITTED REVERSIBLE ERROR WHEN IT

       OVERRULED DEFENDANT’S MOTION TO SUPPRESS WHEN IT

       FOUND THAT TROOPER MIRANDA HAD REASONABLE ARTICULABLE

       SUSPICION TO BELIEVE THAT THE DEFENDANT HAD COMMITTED A

       MARKED LANES VIOLATION.

       {¶ 32} Andrews argues that for “many years now police cars and interview rooms

have been equipped with audio/video recording devices taking fact analysis essentially

out of the equation.” Citing State v. Coleman, 85 Ohio St.3d 129, 707 N.E.2d 476 (1999),

Andrews asserts that an “authenticated tape is ‘much more likely to be free from error

than the words of a witness testifying from memory.’ ” He asserts that “herein we have

the actual audio and video of the entire stop and arrest of the Defendant.”

       {¶ 33} Andrews directs our attention to Schwieterman and Shaffer and the

analyses therein of R.C. 4511.33(A)(1). Andrews argues that he was “driving his vehicle

as nearly as practicable as determined in the holdings of Schwieterman and Shaffer.”

Andrews argues that “the best evidence as to whether a marked lane violation occurred

on the morning of October 12, 2015 is the cruiser video. The video is clear and objective.

At 1:08:30, it is clear on the video that the Defendant does touch the dotted white line, yet

does not cross the dotted white line to the right.” According to Andrews, it is further “clear

on the video that the Defendant did hit a bump in the road that made the vehicle shift and

touch the dotted white line.     This is evidenced by the fact that the automobile that

Defendant was driving makes a substantial up and down movement after hitting the

bump,” which, Andrews asserts, is visible on the video.
                                                                                         -19-

       {¶ 34} Andrews asserts that the matter herein is “strikingly similar” to State v.

Marcum, 2013-Ohio-2652, 993 N.E.2d 1289 (5th Dist.), and he further cites State v.

Baker, 6th Dist. Wood No. WD-13-074, 2014-Ohio-2564. Andrews asserts that “case law

on when a marked lane violation has occurred seems to indicate that an individual must

completely cross over the dividing line on the road.” Andrews directs our attention to

State v. Franklin, 5th Dist. Licking No. 11-CA-128, 2012-Ohio-3089, and City of Mentor v.

Phillips, 11th Dist. Lake No. 99-L-119, 2001 WL 20736 (Dec. 29, 2000). He asserts that

it “is also clear that the Supreme Court of Ohio has not ruled on whether driving on a

marked lane is a violation of R.C. 4511.33. Nonetheless, various appellate districts have

ruled on this issue here recently and have come to the conclusion that driving on a marked

lane is not a violation of R.C. 4511.33.” Finally, he asserts that “when all of the evidence

is taken in totality, it is clear that on October 12, 2015 the Defendant did not make a

marked lane violation as defined under R.C. 4511.33. The cruiser video supports this

contention and the Trooper’s testimony does as well.”

       {¶ 35} The State directs our attention to McEldowney, in which “the Court referred

to the Ohio Supreme Court’s decision in State v. Batchili finding that a single center lane

marker violation by only about a tire’s width was a lawful basis for a traffic stop.” The

State noted that the “McEldowney Court decided to follow the Supreme Court’s lead and

follow the existing district precedent.”

       {¶ 36} The State asserts that Andrews “claims that because the lane violation may

be difficult to view on the video this court should completely discount Trooper Miranda’s

testimony. However, Trooper Miranda consistently testified that Defendant-Appellant

crossed over the right hash mark by about half of a tire’s width.” The State asserts that
                                                                                          -20-


“[a]lthough this may be difficult to see on the video, please keep in mind that there was

no testimony that the cruiser is equipped with high definition recording equipment.” The

State argues that “the trial court specifically noted in the March 21, 2016 Decision and

Judgment Entry that the video is of poor quality and therefore relied upon Trooper

Miranda’s testimony in finding a marked lanes violation had occurred which provided the

reasonable suspicion necessary for a proper traffic stop.” The State asserts that the “trial

court specifically found Trooper Miranda’s testimony credible regarding the marked lanes

violation.”

       {¶ 37} As this Court has previously noted:

              In ruling on a motion to suppress, “the trial court assumes the role of

       the trier of fact, and, as such, is in the best position to resolve questions of

       fact and evaluate the credibility of the witnesses.” State v. Retherford, 93

       Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994), citing State v. Clay,

       34 Ohio St.2d 250, 298 N.E.2d 137 [ (1973) ]. Accordingly, when we review

       suppression decisions, “we are bound to accept the trial court's findings of

       fact if they are supported by competent, credible evidence. 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.” Id.; State v. Shipp, 2d Dist. Montgomery No. 24933, 2012-

       Ohio-6189, ¶ 11.

State v. Mobley, 2d Dist. Montgomery No. 26044, 2014-Ohio-4410, ¶ 11.

       {¶ 38} As noted by the Ohio Supreme Court in State v. Mays, 119 Ohio St.3d 406,

2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8 (“Mays”):
                                                                                      -21-


       The Fourth Amendment to the United States Constitution and

Section 14, Article I of the Ohio Constitution guarantee the right to be free

from unreasonable searches and seizures. State v. Orr (2001), 91 Ohio

St.3d 389, 391, 745 N.E.2d 1036. The United States Supreme Court has

stated that a traffic stop is constitutionally valid if an officer has a reasonable

and articulable suspicion that a motorist has committed, is committing, or is

about to commit a crime. Delaware v. Prouse (1979), 440 U.S. 648, 663, 99

S.Ct. 1391, 59 L.Ed.2d 660; Berkemer v. McCarty (1984), 468 U.S. 420,

439, 104 S.Ct. 3138, 82 L.Ed.2d 317, quoting United States v. Brignoni–

Ponce (1975), 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607. Further,

“[t]he propriety of an investigative stop by a police officer must be viewed in

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

(1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044, at paragraph

one of the syllabus.

       Therefore, if 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.

{¶ 39} In discussing reasonable suspicion, the Mays Court noted as follows:

       “The Fourth Amendment imposes a reasonableness standard upon

the exercise of discretion by government officials. Delaware v. Prouse

(1979), 440 U.S. 648, 653–654, 99 S.Ct. 1391, 59 L.Ed.2d 660. ‘Thus, the

permissibility of a particular law enforcement practice is judged by balancing
                                                                                    -22-


its intrusion on the individual's Fourth Amendment interests against its

promotion of legitimate governmental interests.’ Id. at 654, 99 S.Ct. 1391,

59 L.Ed.2d 660. To justify a particular intrusion, the officer must

demonstrate ‘specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that intrusion.’

Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889.” State

v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 11.

“The ‘reasonable and articulable suspicion’ analysis is based on the

collection of factors, not on the individual factors themselves.” (Emphasis

sic.) Id. at ¶ 19.

       As the United States Supreme Court elaborated in Berkemer v.

McCarty, a police officer who lacks probable cause but whose observations

lead him reasonably to suspect that a particular person's behavior is

criminal may detain the person briefly to investigate the circumstances that

provoked the suspicion. 468 U.S. at 439, 104 S.Ct. 3138, 82 L.Ed.2d 317.

       “ ‘[T]he stop and inquiry must be “reasonably related in scope to the

justification for their initiation.” ’ [Brignoni–Ponce, 422 U.S. at 881, 95 S.Ct.

2574, 45 L.Ed.2d 607] (quoting Terry v. Ohio, supra, 392 U.S. [at 29, 88

S.Ct. 1868, 20 L.Ed.2d 889] ). Typically, this means that the officer may ask

the detainee a moderate number of questions to determine his identity and

to try to obtain information confirming or dispelling the officer's suspicions.

But the detainee is not obliged to respond. And, unless the detainee's

answers provide the officer with probable cause to arrest him, he must then
                                                                                           -23-

       be released.” Berkemer, 468 U.S. at 439–440, 104 S.Ct. 3138, 82 L.Ed.2d

       317. The opposite result is also true: if the detainee's answers provide the

       officer with probable cause to arrest him, then it is proper for the detainee

       to be arrested.

Id., ¶ 12-14.

       {¶ 40} R.C. 4511.33 provides:

                (A) Whenever any roadway has been divided into two or more clearly

       marked lanes for traffic, or wherever within municipal 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.

       {¶ 41} In Mays, the Ohio Supreme Court accepted a certified conflict between

State v. Phillips, 3d Dist. Logan No. 8-04-25, 2006-Ohio-6338, and State v. Mays, 5th

Dist. Licking No. 2006-CA-00097, 2007-Ohio-2807. Phillips held that “R.C. 4511.33(A)

imposes a two-prong test.” McEldowney, ¶ 10. As this Court noted:

                This test requires an officer “to witness (1) a motorist not driving his

       or her vehicle within a single lane or line [of] travel as nearly as is

       practicable; and (2) a motorist not first ascertaining that it is safe to move

       out of that lane or line [of] travel before doing so, in order to have probable

       cause to constitutionally stop the motorist. [Phillips,] at ¶ 65 (emphasis in
                                                                                          -24-


       original).

McEldowney, id. The Mays Court agreed to resolve the following issue: “ ‘May a police

officer who witnesses a motorist cross a right white edge line and without any further

evidence of erratic driving or that the crossing was done in an unsafe manner make a

constitutional stop of the motorist?’ ” Mays, 119 Ohio St.3d 406, ¶ 1.

       {¶ 42} In Mays, an Ohio State Highway Patrol trooper observed the vehicle in front

of him “drift across the white fog line by approximately one tire width. A few moments

later, he observed the same thing: the vehicle drifted across the right fog line by

approximately a tire width and then drifted back into the lane.” Mays, ¶ 2. “The trooper

continued following the vehicle for approximately one and a half miles, and he observed

no further traffic violations. The trooper then signaled the driver to pull over the vehicle.”

Id. On appeal, Mays asserted that “his actions in this case – twice driving across the

white edge line – are not enough to constitute a violation of R.C. 4511.33.” Id., ¶ 15.

He further argued that “the stop was unjustified because there was no reason to suspect

that he had failed to first ascertain that leaving the lane could be done safely or that he

had not stayed within his lane ‘as nearly as [was] practicable,’ within the meaning of R.C.

4511.33(A)(1).” Id., ¶ 17.

       {¶ 43} The Mays Court initially determined that R.C. 4511.33 “requires a driver to

drive a vehicle entirely within a single lane of traffic. When an officer observes a vehicle

drifting back-and-forth across an edge line, the officer has a reasonable and articulable

suspicion that the driver has violated R.C. 4511.33.” Id., ¶ 16. The Court further found

that while “R.C. 4511.33 does provide for certain circumstances in which a driver can

cross a lane line without violating the statute,” the question, however, “of whether
                                                                                          -25-


appellant might have a possible defense to a charge of violating R.C. 4511.33 is irrelevant

in our analysis of whether an officer has a reasonable and articulable suspicion to initiate

a traffic stop.” Id., ¶ 17. The Court concluded that an “officer is not required to determine

whether someone who has been observed committing a crime might have a legal defense

to the charge.” Id.

       {¶ 44} The Mays Court concluded as follows:

              R.C. 4511.33(A)(1) provides that a driver must remain within the lane

       markings “as nearly as is practicable” and that a driver shall not move from

       a lane “until the driver has first ascertained that such movement can be

       made with safety.” The phrase “as nearly as is practicable” does not give

       the driver the option to remain within the lane markings; rather, the phrase

       requires the driver to remain within the lane markings unless the driver

       cannot reasonably avoid straying.

              We agree with the Seventh District Court of Appeals' explanation of

       R.C. 4511.33 in State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio-3053,

       771 N.E.2d 331. The Hodge court stated: “The legislature did not intend for

       a motorist to be punished when road debris or a parked vehicle makes it

       necessary to travel outside the lane. Nor, we are quite certain, did the

       legislature intend this statute to punish motorists for traveling outside their

       lane to avoid striking a child or animal. We are equally certain the legislature

       did not intend the statute to give motorists the option of staying within the

       lane at their choosing. Common sense dictates that the statute is designed

       to keep travelers, both in vehicles and pedestrians, safe. The logical
                                                                                          -26-


       conclusion is that the legislature intended only special circumstances to be

       valid reasons to leave a lane, not mere inattentiveness or carelessness. To

       believe that the statute was intended to allow motorists the option of when

       they will or will not abide by the lane requirement is simply not reasonable.”

       (Emphasis sic.) Id. at ¶ 43.

                The court in Hodge also stated that it did not intend for its decision

       to stand for “the proposition that movement within one lane is a per se

       violation giving rise to reasonable suspicion, nor does inconsequential

       movement within a lane give law enforcement carte blanche opportunity to

       make an investigatory stop.” Id., 147 Ohio App.3d 550, 2002-Ohio-3053,

       771 N.E.2d 331, at ¶ 45. However, when an officer could reasonably

       conclude from a person's driving outside the marked lanes that the person

       is violating a traffic law, the officer is justified in stopping the vehicle.

                In this case, the trial court found that the trooper observed appellant

       drift across the white fog line on two occasions. The trooper had a

       reasonable and articulable suspicion that appellant had violated R.C.

       4511.33, and after approaching the vehicle and speaking with appellant, the

       trooper had probable cause to arrest him for driving while under the

       influence of alcohol. We find no error in the trooper's decision.

Id., ¶ 18-21.

       {¶ 45} The Mays Court concluded 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.” Id., ¶ 25.
                                                                                              -27-

      {¶ 46} We note that in McEldowney, upon which the State relies, this Court

analyzed Schwieterman as follows:

             In Schweiterman, a state trooper saw the defendant weave within his

      lane and cross the right edge line three times over the course of a mile. On

      one occasion, the defendant’s tire crossed the edge line by about one foot.

      2003-Ohio-615, at ¶ 3. We found that the trooper had reasonable grounds

      to stop and further investigate based on the fact that the defendant may

      have committed a traffic violation. Id. at ¶ 13. We stated that “[i]ndeed,

      absent any readily apparent cause for a motorist to have strayed from his

      lane of travel, a police officer reasonably may infer that it was practicable

      for the motorist to have stayed in his lane.” Id.

             In Schwieterman, we also rejected the argument that a de minimis

      traffic violation fails to justify a traffic stop. Id. at ¶ 9, citing Whren v. United

      States (1996), 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89, and Dayton

      v. Erickson, 76 Ohio St.3d 3, 11-12, 1996-Ohio-431, 665 N.E.2d 1091. In

      this regard, we stressed in Schwieterman that the Ohio Supreme Court had

      reversed a decision of the Twelfth District Court of Appeals in a case

      involving very similar facts. In that case, which was State v. Wilhelm, the

      Twelfth District concluded that a police officer was not justified in making a

      traffic stop for a violation of R.C. 4511.33, because the statute required the

      driver only to stay within a single lane “ ‘as nearly as practicable.’ ”

      Schwieterman, 2003-Ohio-615, at ¶ 10, referring to State v. Wilhelm, 81

      Ohio St.3d 444, 1998-Ohio-613, 692 N.E.2d 181. Therefore, the Twelfth
                                                                                           -28-


       District reasoned that minor deviations would not justify a traffic stop for

       violating R.C. 4511.33. Based on the Supreme Court’s reversal of the

       Twelfth District, we found the reasoning about minor deviations

       unpersuasive. * * *

McEldowney, 17-18.

       {¶ 47} We have viewed the video herein, and we conclude that it is not clear, due

to darkness, glare from traffic lights, and low quality of the video, how far into the adjacent

lane Andrews travelled. However, the trial court specifically found Miranda’s testimony

to be credible. She testified that Andrews travelled over the line by one half of a tire

width into the adjacent lane, and that any bump in the road did not impede his ability to

remain entirely within his lane of travel.     She further testified that it is common for

something she clearly observes with her own eyes to not be accurately reflected in a

cruiser video. We defer to the trial court’s assessment of credibility, and conclude that

the court’s finding that Andrews traveled into the adjacent lane by half a tire width to be

supported by competent and credible evidence.

       {¶ 48} We further cannot agree with Andrews that the matter herein is “strikingly

similar” to Marcum. Therein the trooper testified that he observed Marcum’s “vehicle go

over the solid white fog line on the right and then over the double yellow pavement line

on the left.” Id., ¶ 4. Further, the trooper “testified that the video recording device on

his cruiser did not capture the vehicle driving over the white fog line because of a small

grade in the roadway.” Id. The trooper testified, however, “that he was able to see the

vehicle’s tires on the right hand side completely cross over the white line. The Trooper

testified that the cruiser’s video did capture appellee’s action in crossing over the solid
                                                                                           -29-


yellow line to the left into an area containing cross-hatched marking. The video was

admitted as an exhibit at the hearing.” Id.

       {¶ 49} In ruling on Marcum’s motion to suppress, the trial court indicated that “it

was not convinced that appellee drove completely over the white line and that while

appellee did drive on the white line, driving on the white line was not a violation of R.C.

4511.33. The trial court further found that appellee did not completely cross over the

double yellow lines and that, therefore, there was no violation of R.C. 4511.33,” and no

basis to stop Marcum. Id., ¶ 7. The Fifth District noted that the “trial court found that

appellee drove on the white line. Having reviewed the video recording,” the Fifth District

found that it “cannot say that the trial court’s finding is against the manifest weight of the

evidence.” Id., ¶ 14. Unlike in Marcum, the trial court herein specifically credited and

relied upon Miranda’s testimony that Andrews travelled by one half of a tire width into the

adjacent lane and failed to remain entirely within his lane.

       {¶ 50} We further conclude that Andrews’ reliance upon Schaffer and Baker is

misplaced.    In Schaffer, the trooper “described the conduct comprising the [marked

lanes] violation as Shaffer’s right side tires driving onto the white fog line one time causing

the right side of Shaffer’s vehicle to cross the same line for approximately three seconds.

Specifically, Trooper Sisco recalled observing the right fender and the outside mirror

cross the white line.” Id., ¶ 19. The Third District concluded that “the language ‘as

nearly as practicable’ inherently contemplates some touching of the lane lines by a

motorist’s vehicle during routine and lawful driving, without the vehicle being considered

to have left the lane of travel so as to constitute a marked lanes violation as proscribed

by R.C. 4511.33(A)(1), such as to avoid debris, obstructions or imperfections in the
                                                                                          -30-

roadway.” Id., ¶ 21. The court concluded that “on the particular facts of this case * * *

the trial court erred in determining that Trooper Sisco had a reasonable, articulable

suspicion to believe Shaffer violated R.C. 4511.33(A)(1).” Id., ¶ 30. We conclude that

the violation herein involved more than some touching of the line by Andrews’ tire, since

Miranda observed ingress by Andrews’ tire, and not just his fender or mirror, into the

adjacent lane of traffic. In other words, Andrews did more than drive onto the marked

line.

        {¶ 51} In Baker, the Sixth District noted that “Mays sheds no light on the question

of whether driving on the line, as opposed to driving across it, violates R.C. 4511.33.” Id.,

¶ 11. The court determined as follows:

              Based on Deputy Kindle’s concession that Baker drove his car on

        the marked line and not across it, and based on our review of the recording

        obtained from the dashboard camera of the patrol car which followed

        Baker’s vehicle’s movements, we agree with the trial court that Deputy

        Kindle lacked reasonable, articulable suspicion that Baker had violated R.C.

        4511.33.

Id., ¶ 12.

        {¶ 52} In Franklin, the Fifth District noted that “the trial court found that the

videotape showed that the left tires of appellant’s vehicle touched the far right line of the

double solid center line traffic marking. The trial court further found that the tires crossed

onto the portion of the double center line by approximately 3 inches.” Id., ¶ 21. It was

significant to the Fifth District that there “was no testimony or evidence that appellant

crossed the center line, but rather that appellant drove on the marked centerline.” Id. The
                                                                                        -31-


court concluded that the trooper lacked reasonable, articulable suspicion to stop Franklin

for a violation of R.C. 4511.33. Id. Finally, in Phillips, the Eleventh District concluded

that the evidence against Phillips was subject to suppression, since the “tires on the left

side of appellant’s truck touched the white broken line twice and his right tires never

touched the curb.” Id., *3.

       {¶ 53} Unlike the above cases, the trial court herein specifically credited

Miranda’s testimony that Andrews travelled into the adjacent lane of traffic by half a tire

width, and that there was no basis for him to do so. Although the violation is de minimis

in nature, we conclude that since Andrews failed to remain entirely within a single lane of

traffic, Miranda had a reasonable, articulable suspicion that Andrews committed a marked

lanes violation. Accordingly, Andrews’ first assignment of error is overruled.

       {¶ 54} Andrews’ second assignment of error is as follows:

              THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

       OVERRULED DEFENDANT’S MOTION TO SUPPRESS STATING THAT

       TROOPER MIRANDA HAD REASONABLE ARTICULABLE SUSPICION

       OF AN OVI VIOLATION THAT JUSTIFIED ADMINISTRATION OF FIELD

       SOBRIETY TESTS.

       {¶ 55} Andrews directs our attention to State v. Spillers, 2d Dist. Darke No. 1504,

2000 WL 299550 (March 24, 2000) and State v. Dixon, 2d Dist. Greene No. 2000-CA-30,

2000 WL 1760664, (Dec. 1, 2000). He asserts that Miranda merely detected an odor of

alcohol “but did not witness any other forms of impairment.” We disagree.

       {¶ 56} In Spillers, the facts known to the officer who stopped Spillers “included
                                                                                          -32-


three or four marked lane violations, which the trial court found to have been ‘de minimis,’1

followed by a significant interval in which Spillers drove home with neither any traffic

violations, nor any remarkable driving, together with [the officer’s] detection of a ‘slight’

odor of an alcoholic beverage, which he believed to have been beer, and Spillers’

admission that he had consumed ‘a couple’ of beers.” Id., *3. This Court determined as

follows:

              The issue is close. However, we conclude that traffic violations of a

       de minimis nature are not sufficient, combined with a slight odor of an

       alcoholic beverage, and an admission to having consumed “a couple” of

       beers, to support a reasonable and articulable suspicion of Driving Under

       the Influence. Few of us drive any appreciable distance without committing

       traffic violations that could properly be characterized as “de minimis.” By

       themselves, then, traffic violations of a de minimis nature are not indicative

       of impaired driving. Otherwise, virtually every motorist could reasonably be

       suspected of impaired driving, since virtually every motorist, driving a

       distance of several miles, will fail to signal a lane change; touch, or even

       slightly cross, a line marking a lane; or exceed the speed limit slightly.

       Furthermore, a slight odor of an alcoholic beverage, without more, is not

       indicative of impaired driving. The law prohibits driving under the influence

       of alcohol; it does not prohibit driving after the mere consumption of an

       alcoholic beverage. State v. Taylor (1981), 3 Ohio App.3d 197, at 198, 444



1
 This Court noted that the de minimis violations were “sufficient to justify a stop for the
purpose of issuing a citation.” Id., *1.
                                                                                             -33-


        N.E.2d 481.

               The closer question, of course, is whether the conjunction of these

        facts-nominal traffic violations combined with a slight odor of alcohol-is

        sufficient to create a reasonable articulable suspicion of Driving Under the

        Influence. Because, in our experience, virtually the entire motoring public

        commits nominal traffic violations regularly, we conclude that even the

        conjunction of these facts is insufficient to create a reasonable articulable

        suspicion of Driving Under the Influence. A slight odor of an alcoholic

        beverage is insufficient, by itself, to trigger a reasonable suspicion of DUI,

        and nominal traffic violations, being common to virtually every driver, add

        nothing of significance. Accordingly, we conclude that the trial court did not

        err in finding that the detention of Spillers for the purpose of administering

        a field sobriety test was unlawful.

Id., at *3.

        {¶ 57} In Dixon, the arresting officer observed what he believed to be a window

tint violation. The officer’s subsequent observations “included the fact that it was 2:20 in

the morning, that Dixon had glassy, bloodshot eyes, that he had an odor of alcohol about

his person, and that he admitted that he had consumed one or two beers.” Id., *2. This

Court noted that, “unlike in Spillers, * * * a police officer did not observe any erratic driving

before administering field sobriety tests. Although, in the case before us, the police

officer observed glassy, bloodshot eyes, that observation is readily explained by the

lateness of the hour, 2:20 a.m.” Id. This Court concluded as follows:

               The mere detection of an odor of alcohol, unaccompanied by any
                                                                                           -34-


       basis, drawn from the officer’s experience or expertise, for correlating that

       odor with a level of intoxication that would likely impair the subject’s driving

       ability, is not enough to establish that the subject was driving under the

       influence. Nor is the subject’s admission that he had had one or two beers.

Id.

       {¶ 58} We conclude that Miranda demonstrated specific and articulable facts

which, taken together with rational inferences therefrom, warranted the administration of

the field sobriety tests. Miranda pursued Andrews because she believed him to be

speeding upon her initial observation of him, and she observed him commit a marked

lanes violation. She further stated that Andrews entered the turn lane in an inappropriate

manner. Andrews advised Miranda that he had identification but failed to produce any

after going through his pockets, and Miranda detected a strong and persistent, as

opposed to a slight, odor of an alcoholic beverage coming from his breath. She also

noticed that he had red, glassy eyes. Miranda is trained to detect whether an individual

is under the influence of alcohol, and she is experienced in doing so; she testified that

she encounters impaired drivers at least once a night while on patrol. In her experience,

the odor of an alcoholic beverage, red glassy eyes and fumbling with papers are indicative

of impairment. Andrews also provided inconsistent statements about his whereabouts

prior to the stop, initially stating that he was at the Kings Table Bar, and later stating that

he was at the Kevin Hart Comedy Club. He “dodged” Miranda’s questions about how

much alcohol he had consumed. In other words, unlike in Spillers and Dixon, based upon

the totality of the circumstances herein, we conclude that Miranda had a reasonable,

articulable suspicion that Andrews was driving under the influence of alcohol, thereby
                                                                                     -35-


justifying the administration of the field sobriety tests. Accordingly, Andrews’ second

assignment of error is overruled.

       {¶ 59} Having overruled Andrews’ assigned errors, the judgment of the trial court

is affirmed.

                                    .............

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Betsy A. Deeds
Kiriakos Kordalis
Hon. Beth W. Cappelli
