The Tenth District Court of Appeals in Columbus upheld a Franklin County Municipal Court judge’s decision to throw out an OVI arrest where the officer’s testimony about the field sobriety tests was not supported by the dash cam video. Thus, the court held that the officer lacked probable cause to arrest the driver. State v. Simmons, 2019-Ohio-559.

DRIVER STOPPED FOR SPEEDING, OFFICER SMELLED MARIJUANA, DRIVER DID FIELD SOBRIETY TESTS AND WAS ARRESTED FOR OVI

In Simmons, an officer stopped a driver for speeding (57mph in a 35mph zone). During the traffic stop, the officer claimed to smell burnt marijuana coming from the car and from the driver. The driver said he had smoked several days ago. The officer mentioned that the vehicle’s passenger smelled heavily of marijuana and acknowledged that the driver’s speech and movements were normal. Further, he had no difficulty providing his license and registration.

The entire traffic stop was recorded on the officer’s dash cam. On cross examination, the officer agreed that he did not say on video that the driver smelled of marijuana (only that the passenger did). He also did not say on video that the driver’s eyes were glazed over (even though he put this in his report).

Based on the alleged marijuana smell, the officer asked Defendant to perform field sobriety tests, and then arrested him for OVI based in part on the officer’s belief that Defendant failed the field sobriety tests. Once he was handcuffed and under arrest, he was taken to the Reynoldsburg Police Department where he agreed to submit to a test of his urine. The urinalysis came back showing prohibited levels of marijuana in his system.

FIELD SOBRIETY TESTS: OFFICER TESTIMONY V. VIDEO EVIDENCE

The officer had the driver perform a series of field sobriety tests described below.

Horizontal Gaze Nystagmus (HGN)

This test was not visible on the video. The National Highway Traffic Safety Administration (“NHTSA”) manual for DWI Detection and Standardized Field Sobriety Testing does not address whether the HGN is useful to detect intoxication under the influence of marijuana. The officer noted that the driver showed no “clues” of intoxication on the HGN test.

Lack of Convergence (LOC)

This test was also not visible on the video. Further, the LOC test is not a test recognized or referred to in the NHSTA manual for DWI Detection and Standardized Field Sobriety Testing. Nonetheless, the officer testified that the driver demonstrated a lack of convergence in one eye on the LOC test.

Although the officer was not qualified as an expert during the hearing, he offered the opinion that the LOC was highly indicative of marijuana
intoxication and that “no clues” result on the HGN test was consistent with marijuana usage.

Additional Roadside Tests

While seated in the police car, the officer administered several other tests (the validity of which is not accounted for in the NHTSA manual). (State’s Ex. 1 in passim.)

First, he had the driver touch each of his fingers to his thumb while counting 1, 2, 3, 4, 4, 3, 2, 1. The driver can be heard on video completing this test smoothly, but the officer testified during the hearing that the driver stumbled in counting and failed to adequately touch thumb to finger tips. (Hearing Tr. at 30-31; State’s Ex. 2 at 1:56:17-33.)

Second, the officer asked the driver to recite the alphabet from D to N and count backwards from 52 to 38. The court noted that on the video, the driver paused mid-count to ask the officer to repeat the instruction on the range of numbers to be counted. The officer admitted that the driver completed both the alphabet and counting tasks to his satisfaction. (

One Leg Stand

The officer next had the driver perform two sobriety tests covered in the NHTSA manual: the one leg stand (“OLS”) and the walk and turn (“WAT”).

The officer said the driver swayed and experienced tremors during the OLS exam. The video does reveal a slight wobble by the driver as the trooper moved the beam of his flashlight on the ground over and around the driver’s feet. But the NHTSA manual specifically excludes “slight tremors of the foot or body” as a clue. Though the officer would not admit that the driver passed the test, he admitted that even if the slight wobble constituted swaying, more than a single “clue” is required to consider the test a “fail.”

Walk and Turn

The officer testified that he observed five “clues” during the WAT test and
specified four during his testimony—(1) that the driver disobeyed instructions by moving while listening to instructions, (2) that he did not touch heel to toe on each step, (3) that he took 11 rather than 9 paces during the walk after the turn, and (4) that he stopped during the test.

Video revealed one clue the trooper mentioned and one that he did not specifically mention. It shows that the driver did take 11 steps rather than the instructed 9 and that he lost his balance while executing the turn and stepped off the line.

The video did not confirm the existence of the other three clues mentioned by the trooper. The video shows that the driver did not move while listening to the instructions and only moved after he asked for clarification of the
instructions and while observing the second demonstration by the officer.

The video did not reveal that the driver stopped at any point during the WAT test unless his loss of balance and misstep during the turn portion of the test is double counted as both a stop and a step from the line. The video is not filmed from an angle that shows whether all of Simmons’ steps were heel to toe.

At the hearing on the motion to suppress, the Franklin County Municipal Court Judge noted that he didn’t see many violations on the video. And to the extent there were minor physical issues during the tests, they were not egregious.

Thus, taking the totality of the circumstances together, he did not find probable cause for the arrest the driver for OVI.

DISMISSAL OF OVI CASE UPHELD ON APPEAL IN THE TENTH DISTRICT

On appeal, the appeals court upheld the Franklin County Municipal Judge’s decision. The appeals court noted that the trial court is not required to believe an officer’s testimony about the presence of clues when the video shows otherwise. Upper Arlington v. Wissinger, 10th Dist. No. 13AP-922, 2014-Ohio-1601

A court may rely on video evidence, officer testimony, or any other relevant evidence when considering if probable cause existed.

In Simmons the officer testified that Defendant failed the field sobriety tests and smelled of marijuana. The State felt there was probable cause to arrest based on the testimony of the officer. The trial court rejected the State’s argument because the marijuana smell and the clues of impairment that were present on video were not indicative of the whole picture. The trial court held that Defendant’s performance on the field sobriety tests over all, the ambiguity of the marijuana smell, and Defendant’s lack of slurred speech demonstrated a lack of probable cause to arrest Defendant. The appeals court agreed and the OVI case was thrown out.

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