[W]e find that Dep. Szakats’s reliance on the odor of raw marijuana and the condition of appellee’s eyes, without further indicia of intoxication, are insufficient to show that he had a reasonable, articulable suspicion that Mr. Clinger was operating his vehicle while intoxicated.
State v. Clinger
2022 – Ohio – 723
Sixth District Appellate Court
March 11, 2022
On Saturday April 10, 2021, Mr. Curtis Clinger reported that he was involved in an accident while traveling on State Route 250 in Erie County, Ohio. Mr. Clinger immediately exited the roadway and pulled into a parking lot. The other vehicle did not stop. Erie County Sheriff’s Department Deputy Brett Szakats responded to appellee’s report. During his investigation of the accident, Deputy Szakats believed that Mr. Clinger exhibited signs he was operating his vehicle under the influence of a narcotic. He asked Mr. Clinger to perform several field sobriety tests. Mr. Clinger agreed. Dep. Szakats determined that Mr. Clinger exhibited signs of intoxication during his performance of those tests and arrested him for operating a vehicle while intoxicated (“OVI”) in violation of § O.R.C. 4511.19(A)(1)(a).
Dep. Szakats testified that he approached Mr. Clinger’s vehicle twice during the entire encounter. Dep. Szakats’s initial approach was not recorded as his body camera was in photograph mode for purposes of investigating the accident. Dep. Szakats’s second conversation with Mr. Clinger was recorded. During his testimony, Dep. Szakats did not specify whether his observations which the state alleges supports the administration of field sobriety tests occurred during his first or second conversation with Mr. Clinger.
When describing the observations on which he based his request, Dep. Szakats testified that “it looked like as if [Mr. Clinger] was falling asleep, very drowsy, very sluggish … almost like he was under the influence of a—what I believed to be a narcotic at that point.” Dep. Szakats also testified that appellee’s “[e]yelids were droopy, [his] speech was slurred, slowed,” and “[h]is eyes looked to be glassy/bloodshot.” Finally, Dep. Szakats testified that he smelled raw marijuana while speaking to Mr. Clinger. Based on these factors and his “previous training and experience” investigating OVIs, Dep. Szakats suspected Mr. Clinger was under the influence of narcotics and asked him to exit his vehicle and submit to field sobriety tests.
Mr. Clinger complied and Dep. Szakats administered the horizontal gaze nystagmus test (HGN) and the walk and turn test. During the HGN test, Dep. Szakats observed Mr. Clinger exhibiting “six out of six clues of impairment.” Dep. Szakats testified that during the walk and turn test he observed appellee “began the test several times prior to [Szakats] advising him to do so” and, on his first attempt, appellee “walked backwards at one point after the first series of nine steps.” Mr. Clinger then asked for a second attempt but stopped halfway through. Dep. Szakats testified that Mr. Clinger’s conduct during the walk and turn test were additional indicators that he was impaired. At the conclusion of Dep. Szakats’s direct examination, the state played a recording of the second conversation which was then admitted into evidence without objection from Mr. Clinger.
On cross-examination, Dep. Szakats testified that Mr. Clinger stated that he had been at a water park all day prior to the accident. Dep. Szakats conceded that this, along with the fact that the stop occurred at night, provided a plausible explanation for Mr. Clinger’s tired appearance.
Mr. Clinger was arrested. However, the case is silent as to Mr. Clinger’s acquiescence to a chemical test or a result of possible test. The court held a Motion to Suppress hearing.
On August 18, 2021, the trial court granted Mr. Clinger’s Motion to Suppress. The trial court noted its review of the video of the incident and stated “[t]he court does not notice any slurred speech.” The trial court, therefore, concluded that “at the time the deputy removes [Mr. Clinger] from his automobile, the clues of impairment were the condition of his eyes (bloodshot/glassy), his tired appearance, and the smell of raw marijuana of unknown strength.” The trial court found that these factors did not provide Dep. Szakats with a reasonable, articulable suspicion that appellee was operating a vehicle while intoxicated and suppressed the results of the field sobriety tests from being introduced as evidence at trial.
The Erie County Prosecutor filed an appeal and the Sixth District Appellate Court held “[W]e find that the trial court did not err in finding Szakats lacked a sufficient basis to request appellee perform field sobriety tests and granting the motion to suppress all related evidence.”.
How did the Sixth District Court come this … conclusion?
A peace officer’s request that an individual perform field sobriety tests following a consensual encounter must be “separately justified by specific, articulable facts showing a reasonable basis for the request.” State v. Rasheed, 6th Dist. Lucas 2021-Ohio-4509,
Dep. Szakats’s testimony clearly shows that he did not base his request of Mr. Clinger to perform field sobriety tests on the fact that Mr. Clinger had been in an accident or the time at which their encounter occurred. Additionally, Dep. Szakats testified that he did not observe that Mr. Clinger’s shirt was on backwards until after he asked appellee to exit his vehicle to perform the tests. As these factors were not the “specific, articulable facts” on which Dep. Szakats based his request, the trial court did not err in failing to consider these additional factors.
The Sixth District Court Holding
In sum, the trial court’s finding that Mr. Clinger’s speech was not slurred was based on competent credible evidence and Dep. Szakats’s testimony precluded the trial court from considering the additional factors advanced by the state as the basis for Dep. Szakats’s request Mr. Clinger’s perform field sobriety tests. As a result, the trial court did not err in finding that the only factors to be considered to determine whether Mr. Clinger was intoxicated were his glassy eyes, tired appearance, and the odor of raw marijuana.
We previously held that where “the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of intoxication” are present, “reasonable suspicion exists.” State v. Colby, — N.E.3d –, 2021-Ohio-4405.
“Applying our holding in Colby to the present facts, we find that Dep. Szakats’s reliance on the odor of raw marijuana and the condition of appellee’s eyes, without further indicia of intoxication, are insufficient to show that he had a reasonable, articulable suspicion that Mr. Clinger was operating his vehicle while intoxicated. Therefore, we find that the trial court did not err in finding Dep. Szakats lacked a sufficient basis to request Mr. Clinger perform field sobriety tests and granting the motion to suppress all related evidence.” Notice in the holding that court intentionally omits: the vehicle accident, Mr. Clinger’s shirt is on backwards and the failed field sobriety tests.
This case was decided by the Sixth District Appellate Court and is only binding in the following Ohio counties: Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood.
Information for this article was obtained from State v. Clinger, 2022 – Ohio – 723.
- If a suspect is involved in an alleged hit-skip accident, has an odor of raw marijuana about his person, bloodshot/glassy eyes, his shirt on backwards and failed field sobriety tests, that IS probable cause everywhere except within the offices of Sixth District Judges Zmuda, Osowik, Mayle and now the entire Sixth District.
- The appellate court has misplaced emphasis on the fact that Dep. Szakats did not notice Mr. Clinger put his shirt on backwards until after he asked Mr. Clinger to step out of the car to conduct the FST’s. When a suspect is inside of a car a shirt should not be the singular focus of an officer who must consider officer safety and focus on the suspect’s hands, rather than a wardrobe malfunction. Additionally, probable cause is always based on a totality of the circumstances, not once singularly nuanced fact segregated from all other facts.
- How do the officers within the Sixth District overcome this challenging decision? Law enforcement must narrate each call for service to assist those who view the video later. This should be done on scene approach, up and until contact is made with a witness, victim, or suspect. Narration will help the after-the-fact observers understand what the officer is seeing in real time. Another way law enforcement will help themselves is by providing a detailed analysis of impairment by the driver. In this case Dep. Szakats did well in his articulation and testimony. This case should not be viewed as a substandard investigation. However, the Sixth District Appellate Court has now raised the bar beyond Probable Cause to the next legal level of Preponderance of the Evidence to make an OVI arrest in Erie, Fulton, Huron, Lucas, Ottawa, Sandusky, Williams and Wood counties. For the rest of the state, probable cause remains the standard.
Does your agency train on Probable Cause?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!