Columbus v. Shepherd

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-3302

Case Date: 06/30/2011

Plaintiff: Columbus

Defendant: Shepherd

Preview:[Cite as Columbus v. Shepherd, 2011-Ohio-3302.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Columbus,                                                                               :
Plaintiff-Appellee,                                                                             :
v.                                                                                              :   No. 10AP-483
(M.C. No. 2009 TR C 212048)
Brooke L. Shepherd,                                                                             :
(REGULAR CALENDAR)
Defendant-Appellant.                                                                            :
D    E    C    I    S    I    O    N
Rendered on June 30, 2011
Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, City
Prosecutor, and Orly Ahroni, for appellee.
Favor Legal Services, and H. Macy Favor, Jr., for appellant.
APPEAL from the Franklin County Municipal Court
CONNOR, J.
{¶1}   Defendant-appellant,  Brooke  L.  Shepherd  ("appellant"),  appeals  from  a
judgment of conviction entered by the Franklin County Municipal Court upon her pleas of
no contest to operating a vehicle while under the influence of alcohol, operating a vehicle
with a prohibited alcohol content, and speeding, which appellant entered subsequent to
the trial court's denial of her motion to suppress evidence.  For the reasons that follow, we
affirm the decision of the trial court.

No.                                                                                                           10AP-483                                                                                     2
{¶2}   During  the  early  morning  hours  of  November  29,  2009,  appellant  was
traveling on Interstate 270 near Smokey Row Road in Franklin County, Ohio, when she
was stopped for speeding by a Columbus police officer.   Upon noticing a moderate odor
of alcohol, Sergeant Jeffrey Sowards asked appellant to perform field sobriety tests.
Sergeant  Sowards  also  administered  a  portable  breath  test  ("PBT").    Following  the
administration of the PBT, appellant was placed under arrest.   After being advised of the
consequences of consenting or refusing to consent to a chemical test as set forth in BMV
Form 2255, appellant submitted to a breath alcohol content ("BAC") test, which produced
a result of 0.115 percent.   Appellant was charged with speeding, operating a vehicle while
under the influence of alcohol ("OVI impaired"), and operating a vehicle with a prohibited
alcohol content ("OVI per se").1
{¶3}   Appellant initially entered pleas of not guilty to both OVI charges and the
speeding charge and requested a trial by jury.   Counsel for appellant filed a motion to
suppress evidence.   A hearing was held on the motion to suppress on April 7, 2010.
Sergeant Sowards was the only witness to testify at the hearing.
                                                                                                              {¶4}   Sergeant  Sowards  was  assigned  to  freeway  patrol  when  he  clocked
appellant  traveling                                                                                          87  m.p.h.  in  a                                                                            65  m.p.h.  zone  at  approximately   4:00  a.m.  on
                                                                                                              November 29, 2009.   Sergeant Sowards initiated a traffic stop.   The events that followed
1 Appellant was charged with violations of the Columbus City Code, rather than the Ohio Revised Code.
With  respect  to  the  OVI  offenses,  appellant  was  charged  with  violations  of  Columbus  City  Code
2133.01(A)(1)(a) and (d). Columbus City Code 2133.01 is the municipal equivalent of R.C. 4511.19.   Both
codes address the criminal offense of operating a vehicle under the influence of alcohol and/or drugs.

No.                                                                                                               10AP-483   3
were recorded via his cruiser video camera.   Relevant portions of that video were played
for the trial judge during the course of the suppression hearing.
{¶5}   After  approaching  appellant's  vehicle,  Sergeant  Sowards  noticed  a
moderate odor of alcohol.    He also noticed other indicators that appellant had been
drinking, including slightly slurred speech at times, difficulty in locating her insurance card,
and a stamp on the back of her hand, which could have been an ID type of stamp used at
a bar.   Following this initial contact, Sergeant Sowards had a suspicion that appellant
might be impaired, so he asked appellant to submit to field sobriety tests.    Sergeant
Sowards testified that he has been employed by the Columbus police for 30 years and
has been certified in the administration of field sobriety tests six different times since
2000, including certification as an instructor.2
{¶6}   First, Sergeant Sowards conducted the horizontal gaze nystagmus ("HGN")
test, which tests for nystagmus, or an involuntary jerking, of the eyes.   As he positioned
her for the test, Sergeant Sowards noticed appellant's speech was slow and slightly
slurred and she was swaying a little bit.   Appellant also admitted that she had consumed
one beer.   Sergeant Sowards described his administration of the HGN test and testified
he observed six out of six clues.   Four out of six clues must be exhibited in order for the
HGN test to be a reliable indicator that an individual's BAC will likely be above .10.
2Both parties stipulated that Sergeant Sowards was certified and qualified to perform the field sobriety tests
at  issue  and  that  he  performed  said  tests  in  compliance  with  the  National  Highway  Traffic  Safety
Administration manual standards.   Counsel for appellant informed the trial court that appellant's challenge
was with the officer's observations, rather than with the proper administration of the field sobriety tests.

No.                                                                                                10AP-483   4
{¶7}   Next, Sergeant Sowards used a piece of chalk to draw a line on the asphalt
and administered the walk-and-turn test.   Sergeant Sowards testified appellant exhibited
two out of eight clues on the walk-and-turn test, although Sergeant Sowards mistakenly
only marked one clue box on the alcohol influence report.   Two out of eight clues are
sufficient to indicate impairment on this test.   He testified appellant stepped off the line on
the first step and also had spaces between some of her steps.    However, Sergeant
Sowards testified that these "spaces" were not able to be reflected on the cruiser video.
He also testified that he detected an odor of alcohol while appellant was performing this
test.
{¶8}   The  third  field  sobriety  test  administered  was  the  one-leg  stand  test.
Appellant displayed two out of four clues in performing this test.   Two out of four clues is a
strong indicator the person is impaired and will test higher than .10.   Sergeant Sowards
observed appellant put her foot down twice and also sway during the administration of the
test.   He testified that he continued to detect an odor of alcohol while this test was being
conducted.
{¶9}   Besides   the   three   standardized   National   Highway   Traffic   Safety
Administration field sobriety tests, Sergeant Sowards also administered the Romberg test
and  the  lack  of  convergence  test,  based  on  his  specialized  training.    The  lack  of
convergence test is used to detect usage of large amounts of depressants and marijuana.
Appellant did not display any clues on the lack of convergence test.   On the Romberg
test, which is a timed, 30-second test used to detect use of a stimulant or depressant,
appellant did exhibit a clue indicating use of a depressant.

No.                                                                                                              10AP-483                    5
{¶10}  In addition to his other observations, Sergeant Sowards noted that appellant
had glassy eyes and relaxed facial muscles, and he testified both conditions can indicate
alcohol consumption.   Sergeant Sowards also acknowledged that consumption of one
beer would not impair someone of appellant's height and weight.
{¶11}  Sergeant Sowards testified that following appellant's performance of the
field sobriety tests, he did not immediately arrest appellant.   Instead, he advised her, "I
got one more test here and we're going to get you out of here."                                                  (Tr. 51.)   That test was
the PBT.   Sergeant Sowards testified that by the time he went to retrieve the PBT, he had
already determined he was going to arrest appellant.    Despite this determination, he
administered the PBT because (1) it is procedure within his unit to administer it; and (2)
he needed a general sense of her impairment in order to know whether he needed to take
her to the station to be tested on a BAC machine right away, and thus he would need
assistance from another officer, or whether he could wait there with appellant for the tow
truck to pick up her vehicle and then take her to the station.
{¶12}  After  the  PBT  was  administered,  appellant  was  placed  under  arrest.3
Sergeant Sowards testified that prior to administration of the PBT, he did not read BMV
Form 2255 to appellant.   However, after he arrested appellant for OVI and placed her in
the rear of his cruiser, Sergeant Sowards read the form to her and advised her of the
statutory  consequences  of  consenting  or  refusing  to  consent  to  a  chemical  test.
3 Although the prosecution did not directly elicit evidence regarding the results of the PBT (and in fact, the
prosecution requested that the court not consider the results of the PBT in determining whether or not
probable cause existed because there had been no expert testimony introduced as to the accuracy or
reliability of the PBT), other evidence in the record indicates that the test produced a result of .137.

No.                                                                                                10AP-483   6
Appellant later consented to a chemical test at the police station, which produced a test
result of 0.115.
{¶13}  On  April  13,  2010,  the  trial  judge  issued  a  written  decision  and  entry
denying appellant's motion to suppress.   Specifically, the trial judge determined that R.C.
4511.191 does not mandate that an officer arrest the accused and inform her of Ohio's
implied consent law prior to administering a PBT, nor does R.C. 4511.192 require an
officer to arrest the accused and read her BMV Form 2255 prior to administering a PBT.
Without considering the PBT results, the trial judge further found the officer had probable
cause to arrest appellant for an OVI impaired offense.
{¶14}  On May 17, 2010, appellant entered no contest pleas to both OVI offenses,
as well as the speeding offense.   The two OVI offenses were merged and appellant was
sentenced on the OVI impaired offense.   Appellant was sentenced to 60 days in jail with
57 days suspended, a 3-day intervention program in lieu of 3 days in jail, and 1 year of
community control.   The trial court also imposed a fine of $375 and court costs, as well as
a 6 month driver's license suspension.   On the speeding offense, appellant was ordered
to  pay  court  costs.    Appellant  has  filed  a  timely  appeal  and  asserts  the  following
assignments of error for our review:
ASSIGNMENT OF ERROR I
I.  THE  TRIAL  COURT  ERRED  IN  ITS  DECISION  AND
ENTRY  FILED  ON  APRIL  13,  2010,  HOLDING  OHIO'S
IMPLIED CONSENT  STATUTE  IS  NOT  APPLICABLE  TO
PRE-ARREST  CHEMICAL  TESTING WITH A  PORTABLE
BREATHALYZER TESTER.

No.                                                                                                   10AP-483                                                                                                                  7
                                                                                                                                              ASSIGNMENT OF ERROR II
                                                                                                                                              II.  THE  TRIAL  COURT  ERRED  IN  ITS  DECISION  AND
                                                                                                      ENTRY    FILED    ON    APRIL           13,                                                     2010,    DENYING
                                                                                                      DEFENDANT-APPELLANT'S                                                                           MOTION             TO
                                                                                                      DISMISS/SUPPRESS   FILED   ON   MARCH                                                           11,                2010
STATING THE POLICE OFFICER HAD PROBABLE CAUSE
TO ARREST DEFENDANT.
{¶15}  Because appellant's assignments of error are intertwined, we shall address
them together.
{¶16}  In her first assignment of error, appellant argues that prior to an actual
arrest,  Ohio's  implied  consent  statute  is  not  triggered,  and  thus,  in  order  to  legally
administer a chemical test prior to arrest, including a PBT, the officer must get the driver
to voluntarily consent to the test.   Appellant claims she believed she was required to
comply with the officer's order to take the PBT, and because she was not advised of the
right to refuse to take the test or of the consequences, she did not voluntarily consent to
the PBT.   Consequently, appellant argues her constitutional rights were violated, as well
as the implied consent law, which in turn requires the suppression of the result of the PBT
as well as any evidence taken after her unlawful arrest, including the results of the BAC
test conducted at the police station.   In support of her position, appellant cites to State v.
Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, City of Fairfield v. Regner (1985), 23 Ohio
App.3d 79, and Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041.
{¶17}  In her second assignment of error, appellant contends Sergeant Sowards
lacked probable cause to arrest her for OVI.   The essence of appellant's argument is that,
without consideration of the PBT results, there was not sufficient evidence to establish

No.                                                                                             10AP-483   8
probable cause to arrest.    In support of this argument, appellant points to: Sergeant
Sowards' acknowledgment that consumption of one beer would not impair a person of
appellant's size and weight; errors in the alcohol influence report; the presence of only
one clue in the walk-and-turn test; Sergeant Sowards' "we're going to get you out of here"
statement, which implied that appellant had passed the field tests; and the lack of action
on the part of Sergeant Sowards demonstrating that he had constructively arrested or
was going to arrest appellant prior to the administration of the PBT.   Because probable
cause was not established, appellant argues that her arrest was unlawful, as was the
evidence obtained subsequent to her unlawful arrest, specifically, the results of the BAC
test administered at the police station.   Thus, appellant argues the trial court erred in
failing to grant her motion to suppress.
{¶18}  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 therefore is 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, ¶8.   As
a result, an appellate  court must accept the trial court's  findings  of  fact if  they are
supported  by  competent,  credible  evidence.    Id.    Then,  the  appellate  court  must
independently determine whether the facts satisfy the applicable legal standard, pursuant
to a de novo review and without giving deference to the conclusion of the trial court.  Id.
{¶19}  Under R.C. 4511.191, Ohio's implied consent statute, "[a]s part of obtaining
the privilege to drive in Ohio, a driver implicitly consents to a search, through means of a
chemical test, to determine the amount of intoxicating substances in the driver's body,

No.                                                                                             10AP-483   9
upon the driver's arrest for [OVI]."   Hoover at ¶14, citing R.C. 4511.191.   "Ohio police
officers are not statutorily authorized to randomly demand chemical alcohol testing of
Ohio drivers in the absence of an arrest for [OVI]."   Id. at ¶24, citing State v. Gustafson,
76 Ohio St.3d 425, 439, 1996-Ohio-299.   An officer must have probable cause to arrest a
driver for OVI before asking that driver to submit to a chemical test.  Hoover at ¶23.
{¶20}  After a driver is arrested for OVI, the officer must explain the consequences
of consenting or refusing to consent to a chemical test prior to asking the individual to
submit to a chemical test used to determine breath alcohol content.   See R.C. 4511.192.
This advisement is contained in BMV Form 2255. (R. at 2.)   An administrative license
suspension is also imposed if a driver arrested for OVI refuses to submit to a chemical
test or submits to a chemical test which produces a result with a prohibited concentration
of alcohol.  Id. at ¶16, 20; R.C. 4511.191.
{¶21}  Appellant submits that because she was administered the PBT prior to
being arrested for OVI, the implied consent statute was not triggered and therefore she
did not impliedly consent to the test.   She further asserts that her submission to the PBT
was not voluntary, thus the results of the PBT could not be used in conjunction with the
field tests to find probable cause to arrest her for OVI, and therefore, her arrest was
improper and suppression of all evidence obtained subsequent to the PBT is required.
{¶22}  The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution prohibit unreasonable searches and seizures.   See State
v. Moore,  90 Ohio St.3d  47,  2000-Ohio-10.    In order for a search or seizure to be
reasonable under the Fourth Amendment, it must be based upon probable cause and

No.                                                                                                 10AP-483                                                              10
executed  pursuant  to  a  warrant,  unless  an  exception  to  the  warrant  requirement  is
applicable.    Id.  at                                                                              49.    "Because  the  Fourth  Amendment's  ultimate  touchstone  is
'reasonableness,' the warrant requirement is subject to certain exceptions."  Brigham City,
Utah v. Stuart (2006), 547 U.S. 398, 126 S.Ct. 1943, syllabus.
{¶23}  "One exception permits police to conduct warrantless searches with the
voluntary consent of the individual."   City of Columbus v. Bickis, 10th Dist. No. 09AP-898,
2010-Ohio-3208, ¶19, citing Schneckloth at 222, 2045.   Another exception permits an
officer  to  stop  and  detain  an  individual  without  a  warrant  when  the  officer  has  a
reasonable  suspicion,  based  on  specific,  articulable  facts,  that  criminal  activity  has
occurred or is about to occur.   Bickis at ¶19, citing Terry v. Ohio (1968), 392 U.S. 1, 88
S.Ct. 1868.   Pursuant to a valid, investigatory stop, an officer possessing a reasonable,
articulable suspicion that a driver is intoxicated can perform field sobriety tests.  Id. at ¶19;
State v. Perkins, 10th Dist. No. 07AP-924, 2008-Ohio-5060, ¶8.
{¶24}  If we assume, without deciding but for purposes of our analysis here, that a
PBT is a "search" pursuant to the Fourth Amendment, and we also assume for the
purposes of this argument that appellant's voluntary consent is required in order for the
search to be a valid warrantless search, we believe the evidence in the record supports a
finding that appellant voluntarily consented to the PBT.
{¶25}  The question of whether or not an individual has voluntarily consented to a
search  is  a  question  of  fact  that  must  be  determined  from  the  totality  of  the
circumstances.   Schneckloth at 227, 2047-48.   In Schneckloth, and as reiterated in Ohio
v. Robinette (1996), 519 U.S. 33, 39, 117 S.Ct. 417, 421, the United States Supreme

No.                                                                                             10AP-483   11
Court rejected a per se rule that consent could not be valid unless the defendant knew
that she had a right to refuse the request.  "While knowledge of the right to refuse consent
is one factor to be taken into account, the government need not establish such knowledge
as the sine qua non of an effective consent."   Schneckloth at 227, 2048.   It would be
unrealistic to require officers to always inform detainees that they are free to go before
consent to search is deemed voluntary.  Robinette at 39-40, 421.
{¶26}  In the case at bar, there is no testimony and no other evidence within the
record which demonstrates that Sergeant Sowards acted coercively or that appellant felt
she was being coerced.   While counsel for appellant has argued that Sergeant Sowards'
statement that he would "get [appellant] out of here" implied that appellant had passed
the field sobriety tests and would be released to go home if she simply took the PBT,
there is nothing in the record to support this.   To the contrary, Sergeant Sowards testified
that he never told appellant he would release her if she submitted to the PBT, and he
testified that his statement simply meant that appellant would no longer be standing
outside along the side of Interstate 270, but instead would either be leaving in the back of
his police cruiser or another cruiser.   Sergeant Sowards also testified that he had decided
to arrest appellant whether or not she consented to take the PBT.   In addition, there is
nothing on the cruiser video which demonstrates that appellant's consent to provide a
breath sample for the PBT was involuntary or coerced.
{¶27}  Even if we were to interpret Sergeant Sowards' statement as meaning that
appellant was going to be released to go home, that alone would not necessarily make
her  consent  involuntary.    "The  use  of  deceit  is  merely  '*                             *          *  a  factor  bearing  on

No.                                                                                                 10AP-483   12
voluntariness.' "   State v. Cooey (1989), 46 Ohio St.3d 20, 27, quoting Schmidt v. Hewitt
(C.A.3, 1978), 573 F.2d 794, 801; and State v. Hatcher (Feb. 17, 2000), 10th Dist. No.
99AP-460.
{¶28}  Alternatively, even if we found that the evidence failed to demonstrate that
appellant's consent was voluntary, the evidence still demonstrates that probable cause
existed to support appellant's arrest prior to the administration of the PBT and without
reliance on the PBT results.   Such a determination means that only the PBT results, not
the BAC test results, would need to be suppressed, based upon the application of the
exclusionary rule and the independent source doctrine, as shall be explained in more
detail below, following our probable cause analysis.
{¶29}  To determine whether a police officer had probable cause to arrest an
individual for operating a vehicle while under the influence of alcohol, a court looks at
whether,  at  the  moment  of  the  arrest,  the  officer  had  sufficient  information,  from  a
reasonably trustworthy source, of facts and circumstances which were sufficient to lead a
prudent person to believe the individual was operating a vehicle under the influence.
Bickis at ¶21, citing State v. Homan, 89 Ohio St.3d 421, 427, 2000-Ohio-212; and State v.
Belmonte, 10th Dist. No. 10AP-373, 2011-Ohio-1334, ¶11.   This determination requires
an examination of the totality of the facts and circumstances surrounding the arrest.
Bickis at ¶21, citing Homan; and Belmonte at ¶11.   Furthermore, "[p]robable cause to
arrest does not have to be based, in whole or in part, upon a suspect's poor performance
on one or more field sobriety tests."    Bickis at  ¶21.    "The totality of  the facts and
circumstances can support a finding of probable cause to arrest even where no field

No.                                                                                            10AP-483   13
sobriety tests were administered or where * * * the test results must be excluded for lack
of [substantial] compliance."  Homan at 427; Bickis at ¶21.
{¶30}  Prior to the administration of the PBT, there were numerous indications that
appellant was impaired and these indications were sufficient to constitute probable cause
to arrest.   Sergeant Sowards testified that appellant was speeding, traveling 87 m.p.h. in
a  65  m.p.h.  zone  in  the  early  morning  hours.    Sergeant  Sowards  also  detected  a
moderate odor of alcohol on appellant and she had what appeared to be a bar stamp on
the back of her hand.   Appellant's speech was slow and slightly slurred, her eyes were
glassy, she had difficulty locating her insurance card, and she admitted to consuming one
beer.
{¶31}  During the administration of the field tests, Sergeant Sowards continued to
detect an odor of alcohol.   Sergeant Sowards observed appellant swaying slightly during
the HGN test.   Appellant exhibited six clues on the HGN test.   Four or more clues on this
test is a reliable indicator of a BAC above .10.   During the one-leg stand test, appellant
swayed and also put her foot down twice, thus displaying two clues.   Two out of four clues
is a strong indicator of a BAC above .10.   On the walk-and-turn test, Sergeant Sowards
testified he observed two clues but neglected to check one of the clue boxes.   The trial
court found appellant displayed at least one clue on that test, although one clue is not
sufficient to indicate a BAC above .10.
{¶32}  Under  the  totality  of  the  circumstances,  we  find  these  indicators  are
sufficient to establish probable cause to arrest.   We note this court has previously found
probable cause to arrest under similar circumstances.

No.                                                                                                                  10AP-483                        14
{¶33}  In City of Columbus v. Anderson (1991), 74 Ohio App.3d 768, this court
found that several factors established probable cause to arrest for OVI, including: an
initial  speeding  violation,  a  moderate  odor  of  alcohol,  the  time  of  day,  glassy  and
bloodshot eyes, a score of six out of six on the HGN test, and a "marginal" performance
on the one-leg stand test.   In State v. Morgan, 10th Dist. No. 05AP-552, 2006-Ohio-5297,
we found probable cause to arrest existed where the suspect had a strong odor of
alcohol,  bloodshot  and  glassy  eyes,  demonstrated                                                                6  clues  on  the  HGN  test,
demonstrated 2 out of 8 clues on the walk-and-turn test, and had a slight infraction on the
one-leg stand test, and admitted to having consumed one beer, but did not have slurred
speech.4   In Perkins, we found probable cause where the suspect made an improper turn
at a red light, was speeding approximately 8 to 10 m.p.h. above the speed limit in the
early  morning  hours,  was  observed  weaving  within  his  own  lane,  had  glassy  and
bloodshot eyes, the officer noticed a strong odor of alcohol, and the suspect displayed 6
out of 6 clues on the HGN test, which was the only field sobriety test completed because
the suspect was on crutches.
{¶34}  Other appellate courts have made similar determinations.   See also State v.
Deegan,  7th  Dist.  No.  05  BE  18,  2007-Ohio-1122  (probable  cause  to  arrest  where
suspect was speeding and weaving onto center line, had glassy eyes, smelled of alcohol,
and displayed six clues on the HGN test, despite displaying only one clue on the one-leg
4 We note that in Morgan, the officer administered a PBT to the suspect, without objection by the suspect,
prior to arresting the suspect for operating a vehicle under the influence of alcohol.   Following his arrest, the
suspect submitted to a BAC test, which produced results of  .110.    We found probable cause to arrest
without considering the PBT results and did not address the admissibility of the PBT results.

No.                                                                                               10AP-483   15
stand test); State v. Tournoux, 11th Dist. No. 2009-P-0065, 2010-Ohio-2154 (probable
cause to arrest where suspect drove without headlights illuminated, had difficulty opening
his car door, had a moderate to strong odor of alcohol, had glossy and bloodshot eyes,
admitted consumption of two beers, had tired and slightly slurred speech, and displayed
two clues on the HGN test, as well as one clue on the walk-and-turn test, and one clue on
the one-leg stand test); and State v. Strope,  5th Dist. No.  08CA  50,  2009-Ohio-3849
(probable cause to arrest where suspect had a moderate odor of alcohol, red and glassy
eyes, admitted consumption of alcohol, displayed six clues on the HGN test, two clues on
the one-leg stand test, and no clues on the walk-and-turn test; probable cause was found
without considering the results of the PBT taken prior to Strope's arrest).
{¶35}  As previously noted, the prosecution did not seek to use the results of the
PBT  in  presenting  its  evidence  to  demonstrate  there  was  probable  cause  to  arrest
appellant for OVI.   In fact, the prosecution did not attempt to elicit testimony regarding the
PBT results and even asked the trial court not to consider the PBT results, given that
there had been no expert testimony introduced to verify the accuracy or reliability of the
PBT.   More importantly, we note the trial court pointedly did not consider the PBT results
in reaching its conclusion that probable cause existed to arrest appellant for OVI following
completion of the field tests.   Thus, it is clear that the trial court determined there was
probable cause to arrest appellant for OVI based only upon the results of the field sobriety
tests and Sergeant Sowards' observations, but not upon the results of the PBT.   This
approach is similar to our approach taken in Morgan and to the approach used by the

No.                                                                                            10AP-483   16
Fifth District Court of Appeals in Strope, whereby it was determined that probable cause
existed without consideration of the PBT and therefore, the arrests were lawful.
{¶36}  Our decision today should not be interpreted to hold that where a PBT is
administered and the results of the PBT are sought to be used to establish probable
cause and/or a suspect's BAC that compliance with the statutory notice requirements set
forth in R.C. 4511.191 and 4511.192 is never required.   We note that the circumstances
here are unique in that the PBT was administered pre-arrest, and the results were not
actually used to determine probable cause or to prove the alcohol content of appellant's
breath.   Thus, appellant did not suffer any prejudice, regardless of whether or not her
consent was voluntary and regardless of whether or not such statutory notification is in
fact required in order to use the results.   The determination of whether R.C. 4511.191
requires an officer to notify a suspect of Ohio’s implied consent law prior to administering
a PBT, and whether R.C. 4511.192 requires an officer to arrest a suspect and read her
BMV Form  2255 prior to administering a PBT under other circumstances is an issue
which need not be definitively determined here, given the unique circumstances at bar.
{¶37}  Because we find there was probable cause to arrest appellant for OVI
without consideration of the PBT results, we find the trial court did not err in denying
appellant's motion to suppress on that ground and in finding there was probable cause to
arrest appellant.
{¶38}  As for appellant's seemingly vague assertion that all evidence subsequent
to the traffic stop and prior to administering the PBT should be suppressed (such as the
officer's observations and the field sobriety tests), we reject that argument as well.   The

No.                                                                                             10AP-483   17
totality of the circumstances gave Sergeant Sowards sufficient indicia of intoxication to
establish  reasonable  suspicion  to  administer  field  testing.    See  Perkins  at           ¶8,        25
(following a valid investigatory stop, an officer may investigate a suspect for impaired
driving if reasonable and articulable facts exist to support that decision; probable cause is
not needed before an officer can conduct field sobriety tests; reasonable suspicion is all
that is needed to support further investigation); Strope at ¶19 ("Where a non-investigatory
stop is initiated and the odor of alcohol is combined with glassy or bloodshot eyes and
further  indicia  of  intoxication,  such  as  an  admission  of  having  consumed  alcohol,
reasonable suspicion exists."); See also State v. Wells, 2d Dist. No. 20798, 2005-Ohio-
5008.
{¶39}  We next address the results of the PBT.   Assuming for the purposes of this
argument, as we have throughout much of our analysis, that the PBT was a search, and
that appellant did not voluntarily consent to take the PBT, suppression of the PBT results
would be warranted.   However, because the city did not seek to admit those results, and
because it is clear the trial court did not consider those results in making its probable
cause determination, there is no prejudice to appellant and no error here on this issue.
{¶40}  We now return the focus of our analysis back to the issue of the BAC
chemical test taken at the police station and appellant's contention that the BAC test
results should be suppressed because the results were obtained pursuant to an unlawful
arrest.
{¶41}  Having already found that appellant was arrested based upon probable
cause,  we  in  turn  reject  appellant's  argument  that  she  was  unlawfully  arrested.

No.                                                                                            10AP-483   18
Consequently, we find the trial court did not err in denying the motion to suppress the
results of the BAC test conducted at the police station and used to measure appellant's
BAC, given the applicability of the independent source doctrine.
{¶42}  Evidence that is the product of a search or seizure that violates the Fourth
Amendment cannot be used to convict the victim of the illegal search or seizure.   City of
Columbus v. Pierce (May 15, 2001), 10th Dist. No. 00AP-1250, citing Wong Sun v. U.S.
(1963), 371 U.S. 471, 83 S.Ct. 407.   This concept is known as the "exclusionary rule."
Under the exclusionary rule, evidence which is obtained as a result of an unreasonable
search must be suppressed as representing the fruit of the poisonous tree. State v.
Barnett, 6th Dist. No. H-03-039, 2004-Ohio-3156, ¶6, citing State v. Carter, 69 Ohio St.3d
57, 67, 1994-Ohio-343. "The exclusionary rule does not apply, however, if the connection
between the illegal police conduct and the discovery and seizure of the evidence is so
attenuated as to dissipate the taint, as where the police have an independent source for
discovery of the evidence."   Carter at 67, citing Silverthorne Lumber Co., Inc. v. United
States (1920), 251 U.S. 385, 40 S.Ct. 182.   The independent source doctrine is a well-
recognized exception to the exclusionary rule which allows the admission of evidence that
has been discovered by means which are entirely independent of any constitutional
violation.  State v. Perkins (1985), 18 Ohio St.3d 193.
{¶43}  Here,   Sergeant   Sowards   had   obtained   enough   information   about
appellant's level of intoxication to establish probable cause to arrest her for OVI prior to
requesting that appellant take the PBT.   Because there was probable cause to arrest
appellant without administering the PBT, appellant's arrest was not unlawful, and the BAC

No.                                                                                               10AP-483   19
test results were obtained by independent means and do not constitute "fruit of the
poisonous tree."  Thus, the trial court did not err in denying appellant's motion to suppress
the results of the BAC test administered at the police station.
{¶44}  Based  upon  the  foregoing,  we  overrule  appellant's  first  and  second
assignments of error.  The judgment of the Franklin County Municipal Court is affirmed.
Judgment affirmed.
BROWN, J., concurs.
FRENCH, J., concurs separately.
FRENCH, J., concurs separately.
{¶45}  I concur in the conclusion reached by the majority and by the trial court that
Sergeant Sowards had probable cause to arrest appellant for operating a vehicle while
under the influence of alcohol, without consideration of the portable breath test ("PBT")
results.   Because the trial court expressly declined to consider the PBT results in its ruling
on appellant's motion to suppress, and because probable cause existed, I would affirm
the trial court's judgment on that basis alone.

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