State v. Schriml

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State v. Schriml

State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-2845

Case Date: 07/01/2013

Plaintiff: State

Defendant: Schriml

Preview:[Cite as State v. Schriml, 2013-Ohio-2845.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE,                           CASE NO.   9-12-32
v.
MICHAEL D. SCHRIML,                           O P I N I O N
DEFENDANT-APPELLANT.
Appeal from Marion Municipal Court
Trial Court No. TRC 11 7448A
Judgment Affirmed
Date of Decision:      July 1, 2013
APPEARANCES:
Jeff Ratliff for Appellant
Steven E. Chaffin for Appellee

Case No. 9-12-32
PRESTON, P.J.
{¶1} Defendant-appellant, Michael D. Schriml  (“Schriml”), appeals from
the judgment of the Marion Municipal Court finding him guilty of operating a
motor vehicle while under the influence of alcohol (“OVI”) after his motion to
suppress was denied and he entered a plea of no contest.   We affirm.
{¶2} On September  16,  2011, at approximately  2:00 a.m., Schriml was
stopped for a marked lanes violation when he made a right turn onto a one-way
street.                                                                                  (Mar. 1, 2012 Tr. at 17-18).   Following field sobriety tests, Schriml was
placed   under   arrest   and   charged   with   an   OVI   in   violation   of   R.C.
4511.19(A)(1)(a),  a  first-degree  misdemeanor,  operating  a  vehicle  with  a
prohibited breath-alcohol concentration of  .095 grams by weight of alcohol per
210  liters  of  breath  in  violation  of  R.C.                                         4511.19(A)(1)(d),  a  first-degree
misdemeanor, and failure to drive within the marked lanes, a second moving
violation, in violation of R.C. 4511.33 and a fourth-degree misdemeanor.                 (Doc.
No. 1).   The two alcohol-related offenses were assigned trial court case no. TRC
11 7448A, and the marked lanes violation was assigned trial court case no. TRC
11 7448B.   (Id.).
{¶3} Schriml entered a written plea of not guilty and filed a motion to
suppress.                                                                                (Doc.  Nos.                                                                  3,   12).   In  his  suppression  motion,  Schriml  claimed
numerous  errors  and  improprieties  requiring  the  suppression  of  all  evidence
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obtained, including that the officer did not have a lawful reason to stop him; that
there  was  no  basis  to  detain  and  request  field  sobriety testing;  that  the  field
sobriety tests were not done in compliance with applicable rules and regulations;
and, that the breath test was unconstitutionally coerced.   (Doc. No. 12).
{¶4} Schriml also challenged whether the breath test was administered in
substantial compliance with the Ohio Director of Health’s rules and regulations
and  whether  the  equipment  was  in  proper  working  order.    More  specifically,
Schriml  alleged  that  the  State  could  not  show:  that  the  officer  substantially
complied with the operator’s checklist instructions; that the test was conducted
free of RFI; that the machine was in proper working order; that an instrument
check had been done in accordance with the rules and regulations; that the solution
used to perform the instrument check was valid and properly maintained; that the
record of the instrument checks and records of maintenance and repairs were not
retained as required by law; that the operator was licensed to operate the machine;
and, that the persons performing the instrument check were currently licensed.
(Id.).
{¶5} A hearing on the motion to suppress was held on March 1, 2012, at
which time the trial court heard the testimony of State Trooper Tawana Young and
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Schriml.   The trial court also viewed the video of the traffic stop and field sobriety
tests, and several exhibits were admitted into evidence.1
{¶6} Trooper Young testified that she observed Schriml make a right turn
from Main Street into the far left lane of Church Street (which was a one-way
street), rather than turning into the right lane closest to the curb and then use his
turn signal to move to the left.                                                                                    (Mar. 1, 2012 Tr. at 17).   Trooper Young also
testified that                                                                                                      “[Schriml] went over the white dotted line by a full tire width,”
which was a violation of the marked lanes statute, R.C. 4511.33.                                                    (Id. at 17-18).
Trooper Young waited for the traffic light to turn green, eventually caught up with
Schriml, and followed him for a while after activating her camera, but she did not
see any other traffic violations.                                                                                   (Id. at  18).   Trooper Young testified that she
activated her lights and made a traffic stop for the marked lanes violation.                                        (Id.).
She testified that she asked Schriml for his driver’s license, registration, and proof
of insurance.                                                                                                       (Id. at 19).   Trooper Young testified that, after Schriml handed her
these items, she “asked [Schriml] if he would come back so [she] could check his
driving record.”   (Id. at 20).2   She testified that Schriml did not state that he did not
want to comply, and that she would have said it was fine if Schriml did not want to
accompany her to her vehicle.                                                                                       (Id.).   Trooper Young testified that she stated to
1 Testimony and exhibits concerning the BAC DataMaster testing and Schriml’s medical records were also
proffered, after the trial court sustained the State’s objections as to their admission. (Mar. 1, 2012 Tr. at 83-
88).
2  Although Trooper  Young  testified  that  Schriml  handed  her  his  registration  and  proof of insurance,
Schriml indicated during the traffic stop that he did not have those items in his possession.                       (D’s Ex. A).
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Schriml “hey, would you come back so I can check your driving record,” and there
was no hesitation on his part to do so.   (Id. at 20-21).   Trooper Young testified that
she really should have said “do you mind” exiting the vehicle or coming back to
the vehicle, and, if the driver refuses, she cannot force them to accompany her.
(Id. at 21).   Trooper Young testified that, prior to Schriml entering her cruiser, she
patted him down for officer safety.                                                        (Id.).   Trooper Young testified that Schriml
never objected to the pat down.   (Id. at 22).
{¶7} Trooper Young testified that law enforcement officers invite drivers to
their vehicle to check their driving record and to observe any odors of alcoholic
beverage upon the driver’s breath.                                                         (Id. at 22).   Trooper Young then testified that,
after  Schriml  was  in  her  vehicle,  she  detected  a                                   “strong  odor  of  alcoholic
beverage” about his breath and observed that his eyes were glassy and bloodshot.
(Id. at                                                                                    23).    She then asked Schriml whether he had consumed any alcoholic
beverages, and he responded that he had a couple drinks during the evening.   (Id.).
Trooper Young then proceeded to conduct a horizontal gaze nystagmus (“HGN”)
test and observed five out of six clues for impairment.                                    (Id. at 24, 31).   Trooper
Young testified that she then asked Schriml to perform the walk and turn test,
which revealed three of eight possible clues for impairment.                               (Id. at                                                                34,  40).
Trooper Young testified that Schriml also performed the one-leg stand, which
revealed two out of four possible clues for impairment.                                    (Id. at 41, 44).   Trooper
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Young testified that Schriml was subsequently tested with results of .095 grams of
alcohol per 210 liters of breath, which is over the legal limit.   (Id. at 47).
{¶8} On cross-examination, Trooper Young testified that, beyond the initial
traffic violations, she did not observe any clues while Schriml was driving that
would have indicated possible impairment.                                                (Id. at                                                                      50-51).    She testified that
Schriml pulled straight into a parking lot when she pulled him over, not into a
particular parking spot, and she pulled her cruiser approximately six feet directly
behind his vehicle.                                                                      (Id. at 56-57).   Trooper Young testified that she did not detect
an odor of alcoholic beverage when she first contacted Schriml or when he exited
the vehicle.                                                                             (Id. at 59).   She testified that she asked Schriml to exit the vehicle so
she could check his driving record, and he exited the vehicle with no problems.
(Id.).   Trooper Young did not inform Schriml that he was not required to exit his
vehicle or to come back to her cruiser.                                                  (Id. at 60).   She testified that she was
checking Schriml’s driving record to determine if he had any previous moving
violations.                                                                              (Id. at 61).   Trooper Young testified that Schriml’s speech was fine.
(Id.).   She further testified that some drivers do not agree to exit the vehicle, but
more drivers comply than do not.   (Id. at 62-63).   Trooper Young testified that she
ran Schriml’s driving record prior to beginning the HGN test.   (Id. at 63).   Trooper
Schriml testified that she did not read Schriml his Miranda rights prior to asking
him to sit in the front seat of her cruiser.                                             (Id. at 64).   She testified that the stop
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was a routine traffic stop for a  marked lanes violation, and Schriml was not
twitching, agitated, or nervous.                                                          (Id.).   Trooper Young testified that it was possible
that  Schriml  had  a  strong  odor  of  alcoholic  beverage  because  he  had  just
consumed his last drink.                                                                  (Id. at                                                          66).    Trooper Young testified that, prior to
performing the field sobriety tests, Schriml informed her that he was overweight
and had poor balance.                                                                     (Id. at 68).   She testified that Schriml twice indicated that
he had two vodka and cranberry drinks that evening.                                       (Id. at  68-69).   Trooper
Young testified that Schriml could not perform the one leg stand and put his one
foot down more than three times.   (Id. at 71).   She testified that she asked Schriml
again about what he was drinking so he would indicate the size of the drinks, and
Trooper Young testified that Schriml indicated that his last drink was about 20
minutes prior to his arrest.   (Id. at 75-76).
{¶9} Schriml testified that he was at the Someplace Else bar immediately
prior to the traffic stop, and he had one vodka cranberry drink.                          (Id. at 96-97).   He
testified that he exited the parking lot of the bar, turned right onto Main Street, and
stopped at a traffic light.                                                               (Id. at 97).   Schriml testified that he then turned right
heading east on Church Street, turning into the first available lane to the right.
(Id.).   Schriml testified that Church Street is a three-lane, one-way street, and he
turned into the first lane, not the third lane.                                           (Id. at 97-98).   He testified that he did
not notice Trooper Young behind him until he heard the sound of an engine
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accelerating, and he was already on Sergeant Street just coming out of the curve
on the road.   (Id. at 98-99).   Schriml testified that he proceeded to park in a well-lit
parking lot for safety reasons.                                                              (Id. at 99).   He testified that, when Trooper Young
asked him how many drinks he consumed, he stated two drinks.                                 (Id.).   He also
testified that he weighs close to 300 pounds, is 6’ 1” to 6’ 2” tall, and is more than
50 pounds overweight.   (Id. at 100).   Schriml also testified that he has curvature of
the spine, which causes his hips to be out of alignment, one leg is about an inch
and a half longer than the other, and he has torticollis of the neck, all of which
cause balance issues.                                                                        (Id. at                                                                                   100-101).    He testified that he thought Trooper
Young ordered him to exit his vehicle, and he did not have an option.   (Id. at 101).
He testified that Trooper Young was “in charge and [he] had to do what she said,”
and he felt like he was being detained when she patted him down for weapons.
(Id.).   Schriml testified that he felt obligated to answer Trooper Young’s questions,
and she  did  not  Mirandize him.                                                            (Id.  at                                                                                  101-102).    He  testified  that  he was
                                                                                             uncomfortable sitting on the ledge of her cruiser when she performed the HGN
                                                                                             test,  and  that  Trooper  Young  performed  the  test  faster  than  reflected  by her
testimony.                                                                                   (Id. at  102).    Schriml testified that he did not feel impaired while
driving.                                                                                     (Id.).    Defense  counsel  also  proffered  several  exhibits,  which  were
medical records concerning Schriml’s back conditions.   (Id. at 102-108).
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{¶10} On cross-examination, Schriml testified that he started drinking after
11:00 p.m., and he had two drinks.   (Id. at 109).   He testified that he did not object
to exiting his vehicle, but he did not want to give Trooper Young the impression
that he was resisting arrest, either.                                                      (Id. at  109-110).   He testified that he was
familiar with the HGN test and had one before.   (Id. at 110).   Schriml testified that
he could not perform either the one leg stand or the walk and turn tests, because he
is overweight and his thighs rub together.                                                 (Id. at 112).   He also testified that his
Lasik eye surgery and frequent sinus surgeries may have affected the results of his
HGN test, though he could say for sure.   (Id. at 113).
{¶11} The  trial  court  would  not  permit  defense  counsel  to present  any
evidence or raise any questions regarding issues with the breath test and the BAC
DataMaster.   The trial court found that the defense had failed to provide sufficient
fact-specific allegations in the motion to suppress that would put the State on
notice of defense counsel’s challenges to the breath test.   (Id. at 7-14, 76-89).
{¶12} After hearing the testimony that was permitted, the trial court denied
the motion to suppress and made the following findings:
[T]he Court finds the charging officer to have probable cause and
reasonable suspicion to stop [Schriml] and request [Schriml] to sit
with her while checking   his driving record, reasonable, articulable
suspicion  to  prolong  the  stop,  reasonable  grounds  to  request
[Schriml] to submit to the Standardized Field Sobriety Tests, and
probable cause to arrest [Schriml].   Further, the Court finds, as stated
on the record, the following:   the standardized field sobriety tests
and  the  BAC  were  administered  in  substantial  compliance  of
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NHTSA  regulations;  the  BAC  test  was  not  unconstitutionally
coerced;  the  individual  administering  the  alcohol  test  held  the
necessary credentials; the operator of the breath test assured that the
test was free of any radio transmissions; the BAC was in proper
working order, properly maintained and not in need of repairs at the
time  of  the  test;  the  solution  is  valid;  and  the  breath  testing
procedure is not unconstitutional.   (Doc. No. 20).
{¶13} The matter was scheduled for a jury trial, but Schriml subsequently
entered a plea of no contest.   On May 7, 2012, he was found guilty of OVI in
violation of R.C. 4511.19(A)(1)(a), a first offense in six years.3   The trial court
sentenced Schriml to 90 days in jail, with 87 days suspended; ordered that he pay a
fine of $1,000, with $450 suspended; and, suspended his operator’s license for six
months.   (Doc. No. 50).
{¶14} On May 29, 2012, Schriml filed his notice of appeal.                                                         (Doc. No. 52).
Schriml raises four assignments of error for our review.
Assignment of Error No. I
The stop of [Schriml’s] vehicle was not supported by probable
cause or a reasonable and articulable suspicion that  [Schriml]
had committed a traffic violation and the officer’s continued
detention  of  [Schriml]  for  the  purpose  of  administering  field
sobriety tests was not supported by a reasonable and articulable
suspicion separate from the initial stop of [Schriml’s] vehicle.
{¶15} In his first assignment of error, Schriml asserts that there was no
basis  for  the  initial  traffic  stop,  and  therefore,  it  was  unlawful.    He  further
3  The  marked  lanes  violation,  assigned  case  no.  TRC  11  7448B,  was  dismissed  as  part  of  the  plea
negotiation.
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maintains that there was no basis to continue to detain him, to remove him from
his vehicle, and to conduct field sobriety tests.
{¶16} Appellate review of a decision on a motion to suppress evidence
presents a mixed question of law and fact.   State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶ 8.   At a suppression hearing, the trial court assumes the role of
trier of fact and is in the best position to resolve factual questions and evaluate the
credibility of witnesses.   Burnside at ¶ 8; State v. Carter, 72 Ohio St.3d 545, 552
(1995).    When reviewing a trial court’s decision on a motion to suppress, an
appellate court must uphold the trial court’s findings of fact if they are supported
by competent, credible evidence.   Burnside at ¶ 8.   With respect to the trial court’s
conclusions of law, however, our standard of review is de novo and we must
independently determine as a matter of law, without deference to the trial court’s
conclusion, whether the trial court’s decision meets the applicable legal standard.
State v. Wolfe, 3d Dist. No. 11-11-01, 2011-Ohio-5081, ¶ 10; State v. McNamara,
124 Ohio App.3d 706, 710 (4th Dist.1997).
{¶17} First, Schriml claims that the trial court erred in denying his motion
to  suppress  because  Trooper  Young  lacked  probable  cause  or  a  reasonable,
articulable suspicion justifying the stop of his vehicle.   At the suppression hearing,
Trooper Young testified that she effectuated the traffic stop because she witnessed
Schriml drive outside of the marked lanes in violation of R.C. 4511.33.                   (Mar. 1,
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2012 Tr. at 18).                                                                          “Where a police officer stops a vehicle based on probable cause
that a traffic violation has occurred or was occurring, the stop is not unreasonable
under the Fourth Amendment to the United States Constitution even if the officer
had some ulterior motive for making the stop * * *.”   Dayton v. Erickson, 76 Ohio
St.3d 3 (1996), syllabus, following U.S. v. Ferguson, 8 F.3d 385 (6th Cir.1993).
Schriml contends that the Trooper’s testimony is not credible because she was a
block away from his vehicle when the violation occurred and could not have seen
the violation from her vantage point.   Credibility is best left to the trier of fact,
however, and we will not second-guess the trial court’s determination.   Carter, 72
Ohio St.3d at  552.   Since the trial court had competent, credible evidence that
Schriml  violated  the  law,  the  traffic  stop  was  constitutionally  permissible.
Erickson  at  syllabus.    Schriml  also  contends  that  the  trooper  stopped  him to
conduct a fishing expedition for suspected operation of a motor vehicle while
under the influence.   However, the law enforcement officer’s ulterior motive, if
any, is irrelevant once he has probable cause to believe a traffic violation occurred,
which is the case here.   Id.
{¶18} Next, Schriml argues that the Trooper did not have any evidence that
he was impaired from which she could direct him from his vehicle.   He argues
that, in order to remove an individual from a vehicle for purposes of conducting
field sobriety tests, the officer must have a reasonable and articulable suspicion to
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believe the person was operating the motor vehicle while under the influence of
alcohol  or  drugs.                                                                  Schriml  further  argues  that  Trooper  Young  lacked  any
justification to detain him beyond the original scope and purpose of the initial
traffic stop for field sobriety tests.
{¶19} The  State  contends  that  it  was  reasonable  for  Trooper  Young  to
continue the detention because she observed an odor of alcoholic beverage from
the vehicle, and Schriml admitted he had consumed alcohol immediately upon
stopping him.   In particular, the State represented that the following occurred:
Upon initial contact with the Defendant, Trooper Young noticed an
odor  of  alcoholic  beverage  coming  from  the  vehicle.    Further,
Trooper Young approached the passenger and explained the reason
for  the  stop.    Trooper  Young  asked  the  driver  whether  he  had
consumed alcohol that evening and he admitted that he had.   Trooper
Young asked the Defendant to step out of the car and he complied.
(Appellee’s Brief at Statement of Facts).
{¶20} The State’s brief has misrepresented the facts in this case.   According
to Trooper Young, she did not smell any odor of alcoholic beverage when she
approached the vehicle, when she asked Schriml if he would exit the vehicle, or
when she patted him down for weapons.   (Mar. 1, 2012 Tr. at 19-20, 59).   Trooper
Young did not smell the odor of alcoholic beverage upon Schriml until he was
seated in her cruiser.                                                               (Id. at 22-23, 62).   Furthermore, Schriml never admitted he
consumed alcohol that evening until after Trooper Young smelled the odor of
alcoholic beverage upon his breath while he was seated in the cruiser.               (Id. at 23,
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64).    Despite the State’s incorrect representations of fact, Trooper Young was
permitted to request that Schriml exit his vehicle and further justified in detaining
Schriml for field sobriety tests.
{¶21} Trooper Young did not “remove” Schriml from his vehicle for the
purpose of conducting field sobriety tests.   When Trooper Young asked Schriml
for his registration and proof of insurance, Schriml indicated that he did not have
them in the vehicle.                                                                     (D’s Ex. A).   Trooper Young then stated, “Why don’t you
come on out so I can check your driving record.”                                         (Id.).    Schriml responded,
“Sure” and stepped out of the vehicle, at which point Trooper Young stated,
“Alright, come on back, follow me.”                                                      (Id.).   Trooper Young then checked Schriml
for weapons and asked him to “[h]ave a seat in the front,” pointing toward the
cruiser.                                                                                 (Id.).   Based upon our review of the record, we cannot conclude that
Trooper Young “removed” Schriml from his vehicle for the purpose of conducting
field sobriety tests; rather, she asked Schriml to exit the vehicle as a result of his
traffic  violation  to  check  his  driving  record/status,  which  was  permissible.
Pennsylvania v. Minns, 434 U.S. 106, 111, 98 S.Ct. 330 (1977); State v. Evans, 67
Ohio St.3d 405, 408 (1993).
{¶22} Schriml  next  argues  that  his  placement  in  the  front  seat  was
unreasonable since there was no concern for officer safety, citing State v. Lozada,
92 Ohio St.3d  74 (2001).   The issue presented in Lozada was  “whether it was
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reasonable  to  search  the  defendant  for  weapons  before  placing  him  in                  [the]
Trooper[’s] patrol car.”    Id. at  75.    Lozada thus concerned whether or not an
officer may search a person for weapons and place them into a patrol car even
when the officer did not have any reason to believe that the driver was armed and
dangerous.   Id. at 76.   The Trooper in Lozada testified that it was his standard
practice during routine traffic stops to remove drivers from their vehicles, pat them
down for weapons, and place them into his cruiser.    Id. at  75,  77.   The Ohio
Supreme Court was concerned that such a practice would effectively eviscerate the
Terry standard.   Id. at 75-76.   Consequently, the Court held that that “during a
routine  traffic  stop,  it  is  unreasonable  for  an  officer  to  search  the  driver  for
weapons before placing him or her in a patrol car, if the sole reason for placing the
driver in the patrol car during the investigation is for the convenience of the
officer.”   Id. at 77.   In reaching this conclusion, though, the Court acknowledged
that  the  mere  placement  of  a  driver  into  a  cruiser  may  be  constitutionally
permissible.    Id.  at                                                                         76,  citing  State  v.  Carlson,   102  Ohio  App.3d  585  (9th
Dist.1995).   The case at bar does not concern the constitutionality of the pat-down
search since no evidence was discovered as a result of that search, and Schriml’s
reliance upon Lozada is misplaced.   State v. Serafin, 11th Dist. No. 2011-P-0036,
2012-Ohio-1456, ¶ 25.
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{¶23} Furthermore, in viewing the video of the traffic stop and evaluating
the totality of the circumstances, we conclude that Schriml voluntarily exited his
vehicle and sat in the cruiser.   Aside from that, we believe that Trooper Young’s
decision to ask Schriml to sit in the front of her cruiser was reasonable in this case
since  Schriml  was  unable  to  provide  her  with  his  registration  and  proof  of
insurance.    Under these circumstances, Trooper Young could have reasonably
believed  that  Schriml  was  engaged  in  criminal  activity,  which  would  have
separately justified placing him into her cruiser.   State v. McCaulley, 161 Ohio
App.3d 568, 2005-Ohio-2864, ¶ 11 (2d Dist.).
{¶24} Schriml next argues that his continued detention for field sobriety
tests violated the Fourth Amendment.   We disagree.
{¶25} Once an officer stops a vehicle for a minor traffic offense and begins
the process of obtaining the offender’s license and registration, the officer may
then proceed to investigate the offender for OVI if the officer has a reasonable
suspicion,  based  on  specific  and  articulable  facts  separate from the  facts  that
served as the impetus for the traffic stop, that the detainee is under the influence.
State v. Evans, 127 Ohio App.3d 56, 62-63 (3d Dist.1998), citing State v. Yemma,
11th Dist. No. 95-P-0156 (Aug. 9, 1996).
{¶26} Whether a law enforcement officer possessed reasonable suspicion or
probable cause to continue to detain an individual must also be examined in light
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of the “totality of the circumstances.”   State v. Cromes, 3d Dist. No. 17-06-07,
2006-Ohio-6924, ¶ 38, citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct.
744  (2002).    Circumstances  from  which  an  officer  may  derive  a  reasonable,
articulable suspicion that the detained driver was operating the vehicle while under
the influence include, but are not limited to:
(1)  the  time  and  day  of  the  stop                                                (Friday  or  Saturday  night  as
opposed to, e.g., Tuesday morning); (2) the location of the stop (e.g.,
whether  near  establishments  selling  alcohol);                                      (3)  any  indicia  of
erratic  driving  before  the  stop  that  may  indicate  a  lack  of
coordination (speeding, weaving, unusual braking, etc.); (4) whether
there is a cognizable report that the driver may be intoxicated; (5)
the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.);
(6) impairments of the suspect’s ability to speak  (slurred speech,
overly deliberate speech, etc.); (7) the odor of alcohol coming from
the interior of the car, or, more significantly, on the suspect’s person
or breath; (8) the intensity of that odor, as described by the officer
(“very strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect’s
demeanor (belligerent, uncooperative, etc.); (10) any actions by the
suspect  after  the  stop  that  might  indicate  a  lack  of  coordination
(dropping keys, falling over, fumbling for a wallet, etc.); and (11)
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the  suspect’s  admission  of  alcohol  consumption,  the  number  of
drinks had, and the amount of time in which they were consumed, if
given.  Evans, 127 Ohio App.3d at 63, fn. 2.
“All of these factors, together with the officer’s previous experience in dealing
with  [impaired]  drivers,  may  be  taken  into  account  by  a  reviewing  court  in
determining   whether   the   officer   acted   reasonably.   No   single   factor   is
determinative.”  Id.
{¶27} Trooper  Young  testified  that  she  has  worked  as  an  Ohio  State
Highway Patrol Officer for over nine years and has participated in hundreds of
OVI cases. (Mar. 1, 2012 Tr. at 15-16).   In this case, Trooper Young observed
Schriml travel over the marked traffic lanes around 2:00 a.m. Friday morning, not
very far from a local bar.                                                                (Id. at 17-18).   After Schriml was in the front passenger
seat of the cruiser, Trooper Young observed a strong odor of alcoholic beverage,
and then Schriml subsequently admitted to having two drinks.   (Id. at 23); (D’s Ex.
A). Trooper Young also observed that Schriml’s eyes were glassy and bloodshot.
(Mar. 1, 2012 Tr. at 23).   After observing all these things, Trooper Young began
administering the HGN test.   After reviewing the totality of the circumstances, we
conclude that Trooper Young had a reasonable, articulable suspicion to continue
the traffic stop for purposes of conducting field sobriety testing.
{¶28} Schriml’s first assignment of error is, therefore, overruled.
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Assignment of Error No. II
The trial court erred in refusing to permit [Schriml] to introduce
evidence regarding the administration of the chemical test and
finding  the  chemical  test was done  in  substantial  compliance
with the Ohio Department of Health rules and regulations.
{¶29} In his second assignment of error, Schriml argues that the trial court
erred by forbidding him from introducing evidence regarding the administration of
the chemical test finding that he failed to give the State sufficient notice of these
claims.
{¶30} When seeking to suppress breath test results, the defendant must first
set forth an adequate basis for the motion.   State v. Shindler, 70 Ohio St.3d 54, 58
(1994).  The  motion  must  state  the                                                     “legal  and  factual  bases  with  sufficient
particularity  to  place  the  prosecutor  and  court  on  notice                          [as  to]  the  issues
[contested].”    Id.  at                                                                   58;  Crim.R.  47.                                                         On  the  other  hand,  a  mere  technical
challenge to a breath test is sufficient even without case-specific allegations.   State
v.  Yeaples,                                                                               180  Ohio  App.3d  720,  2009-Ohio-184,  ¶  21  (3d  Dist.)  (citations
omitted).
{¶31} Once the defendant has established an adequate basis for the motion,
the State must then demonstrate substantial compliance with the Ohio Department
of  Health  regulations.    Xenia  v.  Wallace,                                            37  Ohio  St.3d                                                           216,                                        220  (1988).
However, the extent of the state’s burden to show substantial compliance varies
with the degree of specificity of the violation alleged by the defendant.   Yeaples at
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Case No. 9-12-32
¶ 23.                                                                                    “When a defendant’s motion to suppress raises only general claims, along
with the Administrative Code sections, the burden imposed on the state is fairly
slight.”  State  v.  Johnson,                                                            137  Ohio  App.3d  847,  851  (12th  Dist.2000).    In
particular, if the defendant’s motion fails to allege a fact-specific way in which a
violation  has  occurred,  the  State  must  offer  only  basic  testimony  evidencing
compliance with the code section.   Yeaples at ¶ 23, citing State v. Bissaillon, 2d
Dist. No. 06-CA-130, 2007-Ohio-2349, ¶ 15.
{¶32} The motion to suppress in this case stated several alleged violations
of the Ohio Administrative Code with respect to the breath test; however, the
memorandum attached did not specifically allege any fact-specific way in which
the violation occurred.                                                                  (Doc. No. 12).   Under these circumstances, the trial court
did not err by excluding evidence relevant to particular violations of which the
State did not have sufficient notice.   Furthermore, the State was required to have
only basic testimonial evidence of compliance, which was done through Trooper
Young’s testimony in this case.   (Mar. 1, 2012 Tr. at 45-49); Yeaples at ¶ 23.
{¶33} Schriml’s second assignment of error is, therefore, overruled.
Assignment of Error No. III
The trial court erred in finding the field sobriety tests were done
in substantial compliance with NHTSA or its equivalent.
{¶34} In his third assignment of error, Schriml argues that the trial court
erred in finding that the field sobriety tests were done in substantial compliance
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Case No. 9-12-32
with the NHTSA manual.   In particular, Schriml argues that the State failed to
introduce the manual or, alternatively ADAP guidelines, at the hearing.
{¶35} In response to a motion to suppress regarding OVI field sobriety
tests, the State must show the requisite level of compliance with accepted testing
standards, typically the NHSTA.   State v. Loveridge, 3d Dist. No. 9-06-46, 2007-
Ohio-4493,  ¶  11  (citations omitted).    Consequently, part of the State’s burden
“‘includes demonstrating what the NHTSA requirements are, through competent
testimony and/or introducing the applicable portions of the NHTSA manual.’”   Id.,
quoting  State  v.  Djisheff,                                                            11th  Dist.  No.2004-T-0123,  2006-Ohio-6201,  citing
State v. Brown, 166 Ohio App.3d 638, 2006-Ohio-1172.                                     “HGN test results are
admissible absent expert testimony so long as the proper foundation has been
shown as to the administering officer’s training and ability to administer the test
and as to the actual technique used by the officer in administering the test.”   State
v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, ¶ 27.
{¶36} Trooper Young testified that she has been employed with the Ohio
State  Highway  Patrol  for  over  nine  years,  and  she  had  been  trained  in  the
techniques and procedures involving the apprehension and detection of persons
suspected of alcohol use, including ADAP training and yearly refresher courses.
(Mar. 1, 2012 Tr. at 14-15).   Trooper Young testified that she was also trained in
field sobriety testing and testified concerning the requirements for HGN testing,
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Case No. 9-12-32
according to her training.                                                                (Id. at 15, 27-28).   Trooper Young also testified that if
she detected all six clues in the eyes during an HGN test, there was a 77% chance
that a person is over the legal limit of .08 grams of alcohol per 210 liters of breath,
according to the NHTSA manual.                                                            (Id. at 33).   She further testified that “[d]ue to
training, the NHTSA manual, with the walk and turn test, two clues shows that
there’s a  68 percent chance that the person could be over the legal limit, and
[Schriml] had a total of three.”                                                          (Id. at 41).                                                 (See also Id. at 44).   Consequently, the
State produced sufficient evidence that the field sobriety tests were conducted in
compliance with the NHSTA manual or ADAP guidelines.   State v. Powers, 6th
Dist. No. L-04-1210, 2005-Ohio-5737, ¶ 21.
{¶37} Schriml’s third assignment of error is, therefore, overruled.
Assignment of Error No. IV
The trial court erred in finding the officer possessed probable
cause to arrest [Schriml].
{¶38} In his fourth assignment of error, Schriml argues that the trial court
erred in finding that Trooper Young had probable cause to arrest him for OVI.   In
particular,  Schriml  contends  that  the  field  sobriety  tests  were  not  done  in
substantial compliance with the NHTSA manual; and therefore, the only “valid”
evidence available to the Trooper was an odor of alcoholic beverage and his
admission to consuming two alcoholic drinks.
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Case No. 9-12-32
{¶39} “In determining whether the police had probable cause to arrest an
individual for  [OVI], we must consider whether, at the moment of arrest, the
police had information, derived from a reasonably trustworthy source of facts and
circumstances, sufficient to cause a prudent person to believe that the suspect was
driving under the influence.”   State v. Thompson, 3d Dist. Nos. 14-04-34 and 14-
04-35, 2005-Ohio-2053, ¶ 18, citing State v. Homan, 89 Ohio St.3d 421 (2000),
superseded by statute on other grounds as stated in Bozcar, 2007-Ohio-1251.   The
existence of probable cause is based on the totality of the circumstances.   Cromes,
2006-Ohio-6924, at ¶ 38, citing Arvizu, 534 U.S. at 273.
{¶40} Since  we  have  determined  that  the  State  presented  sufficient
evidence to demonstrate substantial compliance with the NHSTA manual, the
clues observed by Trooper Young during the field sobriety tests are relevant for a
determination of probable cause for arrest here.   Prior to the arrest, Trooper Young
observed Schriml travel over the marked traffic lanes around  2:00 a.m. Friday
morning, not very far from a local bar.   (Mar. 1, 2012 Tr. at 17-18).   After Schriml
was in the front passenger seat of the cruiser, Trooper Young observed a strong
odor of alcoholic beverage, and then Schriml subsequently admitted to having two
drinks. (Id. at 23); (D’s Ex. A).   Trooper Young also testified that Schriml’s eyes
were glassy and bloodshot.                                                               (Mar. 1, 2012 Tr. at 23).   Thereafter, Trooper Young
observed five out of six clues on the HGN test, three out of eight clues on the walk
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Case No. 9-12-32
and turn test, and two out of four clues on the one-leg stand.   (Id. at 31, 40, 44).   In
light of all of those circumstances, Trooper Young had sufficient cause to believe
that  Schriml  was  operating  his  vehicle  while  under  the  influence  of  alcohol.
Therefore, the trial court did not err by finding that Trooper Young had probable
cause to arrest Schriml.
{¶41} Schriml’s fourth assignment of error is, therefore, overruled.
{¶42} Having  found  no  error  prejudicial  to  the  appellant  herein  in  the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, J., concurs.
/jlr
WILLAMOWSKI, J., dissents.
{¶43} I must respectfully dissent from the majority’s decision in the first
assignment of error, which attempts to justify the Trooper’s actions in ordering
Schriml out of his car, frisking him, and placing him in the police cruiser for
further custodial interrogation for the admitted purpose of placing him in close
quarters so that she could attempt to detect an odor of alcohol on his breath.   This
type of infringement on Schriml’s rights in order to conduct a “fishing expedition”
is not permissible.
-24-

Case No. 9-12-32
{¶44} It  is  well-established  that  once  an  officer  lawfully  stops  an
individual, the officer must carefully tailor the scope of the stop “to its underlying
justification.” Florida v. Royer,  460 U.S.  491,  500  (1983); see, also, State v.
Gonyou, 108 Ohio App.3d 369, 372 (6th Dist.1995).   Additionally, the length of
the stop must last no longer than is necessary to effectuate the purpose of the stop.
Royer, 460 U.S. at 500.   Furthermore, the investigative methods employed should
be the least intrusive means reasonably available to verify or dispel the officer's
suspicion in as short a period of time.   State v. Duran, 9th Dist. No. 11CA009969,
2012-Ohio-2114, ¶ 14, quoting Royer; see also United States v. Brignoni-Ponce,
422 U.S. 873, 881-882 (1975).
{¶45} “The rule set forth in Royer is designed to prevent law enforcement
officers from conducting ‘fishing expeditions’ for evidence of a crime.”   State v.
Cromes,  3d Dist. No.  17-06-07,  2006-Ohio-6924,  ¶  35, citing Gonyou, supra.
Various activities, including following a script, prolonging a traffic stop in order to
“fish” for evidence, separating an individual from his car and engaging in “casual
conversation” in order to observe “body language” and “nervousness,” have been
deemed (depending on the overall facts of the case) to be manipulative practices
which are beyond the scope of “the fulfillment of the purpose for which the stop
was made.”   State v. Correa, 108 Ohio App.3d 362, 368 (6th Dist.1995).
-25-

Case No. 9-12-32
{¶46} The Supreme Court of Ohio has stated that “[w]e do not take lightly
the encroachment into one’s personal liberty by allowing a driver to be placed in a
patrol car and subjecting him or her to a pat-down search for weapons.”4   State v.
Lozada,  92 Ohio St.3d  74,  79,  2001-Ohio-149.    The Supreme Court of  Ohio
further stated:
Placing a driver in a patrol car during a routine traffic stop increases
the intrusive nature of the detention.   Goss v. State (Fla.App.1999),
744 So.2d 1167, 1168. Subjecting a driver to a pat-down search for
weapons before placing the driver in a patrol car further increases
the level of intrusion because “[e]ven a limited search of the outer
clothing for weapons constitutes a severe, though brief, intrusion
upon cherished personal security, and it must surely be an annoying,
frightening, and perhaps humiliating experience.” Terry, 392 U.S. at
24-25, 88 S.Ct. at 1881-1882, 20 L.Ed.2d at 908.
Lozada, 92 Ohio St.3d at 78-79.   The Supreme Court of Ohio held that “[d]uring a
routine  traffic  stop,  it  is  unreasonable  for  an  officer  to  search  the  driver  for
weapons before placing him or her in a patrol car, if the sole reason for placing the
driver in a patrol car during the investigation is for the convenience of the officer.”
Id. at paragraph two of the syllabus.    See also State v. McCaulley,  161 Ohio
App.3d 568, ¶ 11 (2d Dist. 2005).
4 The Court did find such action to be justified if it protects the officers or the driver from a dangerous
condition  during  the  traffic  stop.    However,  that  exception  is  inapplicable  in  this  case  as  there  was
absolutely no evidence in the record that the Trooper believed there was any danger in this situation.   To
the contrary, the testimony of both the Trooper and Schriml  was uncontroverted that this  was  not a
dangerous situation.   Schriml was alone, appeared non-threatening, was polite and cooperative, and told the
Trooper that he did not have any weapons when she inquired.   He pulled over as soon as it was safe, and
parked in a well-lit parking lot right by the road.   The Trooper’s vehicle prevented Schriml from leaving,
and she was clearly in charge of the entire situation, while Schriml politely and meekly complied with the
Trooper’s orders and instructions.
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Case No. 9-12-32
{¶47} In spite of the fact that this was a de minimus traffic violation and the
Trooper had not observed any signs of impairment, either in his driving while she
followed him, or upon initiating the traffic stop, Trooper Young told Schriml to
get out of  his car, brusquely directed him  where to stand, demanded that he
remove his hands from his pockets, frisked him, and then ordered him to go sit in
the patrol car.5   Without a reasonable, articulable suspicion of impaired driving or
another crime, Trooper Young’s actions were unwarranted according to law.   The
Trooper’s own testimony verified the fact that the purpose in doing this was what
she had been taught to do (i.e., “following a script”) in order to “fish” for evidence
unrelated to the original traffic stop.   Trooper Young testified:
Q.   What was the purpose of getting [him] into the car, other than
checking the license and everything?
A.   The driving record?    We bring people back to our vehicles
because we’re in close contact, there’s no alcohol in our patrol car,
and while we’re checking the driving record, and also within that
close contact we want to see if we observe any odor of an alcoholic
beverage emanating about their breath.
Q.   Is  that  something  you’ve  been  trained  in  to  observe  and
consider as part of the clues in the investigation?
A.   Yes.
(Emphasis added.   Tr. 22)
5 Although Trooper Young testified that she “asked” him if he would “accompany” her back to her vehicle
(Tr. 20), the video clearly indicates that he was told to get out of his car, and then she proceeded to abruptly
order him around, and then she told him to sit in her car.   Schriml testified that he felt like he was being
detained, that she was in charge, and that he did not have any choice but to obey her directions.                  (Tr. 101-
102)
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Case No. 9-12-32
{¶48} It is true that a police officer may order a driver to get out of a car
which has been properly stopped for a traffic violation, even without suspicion of
criminal activity.   See Pennsylvania v. Mimms, 434 U.S. 106 (1977).                        “The police
have already lawfully decided that the driver shall be briefly detained; the only
question is whether he shall spend that period sitting in the driver's seat of his car
or standing alongside it.”   State v. Evans, 67 Ohio St.3d 405, 408, 1993-Ohio-186.
While the Majority claims that the Trooper  “asked” Schriml to exit the vehicle
(see ¶ 8), the video of the traffic stop clearly indicates that she told him to step out.
The tone of her voice when she stated “Why don’t you come on out so I can check
your driving record,” clearly conveyed a command  - not a question, and her
testimony confirms that she really did not give him any choice in the matter.               (Tr.
60).   However, that is not an issue, since it was proper for her to request that he
exit the vehicle.   Schriml willingly complied, and told her “sure.”   However, that
was the last and only time that Schriml willingly gave his consent to comply with
the Trooper’s orders before he was ordered into the patrol vehicle.   From that
point  forward,  the  video  recording  demonstrates  that  the  Trooper  abruptly
commanded that he:                                                                          “Come on back!”; “Keep your hands out of your pocket!
Face that way!”; “Over here!   Over here!” [directing him where to stand]; and,
“Have a seat in the front,” which was also a clear command, not an invitation.
Schriml testified that he felt like he was being detained, that the Trooper was in
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Case No. 9-12-32
charge, and that he did not have an option other than to do what she said.                                        (Tr.
101)
{¶49} If Trooper Young had any probable cause to proceed to administer
the field sobriety tests,6 it did not arise until after he was in the patrol car when
she claimed that she smelled “a strong odor of alcohol” and he acknowledged that
he had a couple of drinks.7   However, the investigative stop should have never
gotten to that point, and therefore, any evidence gathered as a result should have
been  suppressed.    There  was  no  valid  reason  for  the  Trooper  to  have  done
anything beyond verifying Schriml’s driving record and issuing the traffic ticket.
It was not necessary for Schriml to be placed in the patrol car while she radioed in
to check his record.
{¶50} The Majority tries to justify the Trooper’s actions by speculating that
the Trooper “could have reasonably believed that Schriml was engaged in criminal
activity.”   This was because of the fact that, after Schriml produced his driver’s
6Even the odor of alcohol and Schriml’s admission that he had had a couple of drinks may not have been
sufficient.   See, State v. Stricklin, 6th Dist. No. L-10-1277, 2012-Ohio-1877, ¶ 15 (a slight odor of alcohol,
glassy, bloodshot eyes, and admission of having consumed a “couple” of beers, were not sufficient factors
to support a reasonable articulable suspicion of DUI when stopped for a de minimus traffic violation
without any erratic driving or other behaviors which would indicate intoxication); State v. Spillers, 2d Dist.
No. 1504, 2000 WL 299550 (Mar. 24, 2000) (Traffic violations of a de minimus nature, combined with a
slight odor of an alcoholic beverage, and an admission of having consumed a  “couple” beers, are not
sufficient to support a reasonable and articulable suspicion of DUI); State v. Dixon, 2d Dist. No.2000-CA-
30, 2000 WL 1760664 (Dec. 1, 2000) (mere detection of odor of alcohol and glassy, bloodshot eyes at 2:20
a.m., unaccompanied by any basis to correlate the odor with a level of intoxication which would impair
driving ability, did not justify administration of field sobriety tests).
7However, it seems somewhat unusual that there was suddenly such a “strong odor of alcohol” after he was
in the patrol car; yet, the Trooper did not testify that she smelled any alcohol when she approached the car,
when she told him to get out of the car, or when she was in close proximity to him while she patted him
down for weapons.
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Case No. 9-12-32
license, he explained to her that he had just cleaned out his glove compartment and
he did not have his insurance and registration with him.   Trooper Young seemed to
accept this explanation and did not question Schriml any further concerning this
matter, nor did she testify or indicate on her report at any time that she had any
concerns about further criminal activity.   Without any evidence in the record, it is
not for this Court to resort to speculation in order to create an excuse for an
officer’s actions when the Trooper herself gives no indication of the existence of
such reasoning.   Nor does the Majority cite to any authority whereby the lack of an
insurance or registration card is considered an indicator of “criminal activity” in a
situation such as this.   Compare, State v. Dozier, 187 Ohio App.3d 804, 2010-
Ohio-2918  (2d Dist.)  (even when a traffic offender is not able to produce any
identification or driver’s license, it is not proper to justify a patdown for weapons).
{¶51} The authority of the Supreme Court of Ohio as set forth in Lozada is
very clear.   Yet, the Majority claims that reliance upon Lozada is “misplaced”
because this case “does not concern the constitutionality of the pat-down search
since no evidence was discovered as a result of that search.”   Just because no
contraband was found does not excuse the Trooper’s improper  actions.    That
would be comparable to saying that it is not unconstituional for police officers to
break down your door, enter your home, and conduct a warrantless search of your
premises, as long as no evidence was found!   Schriml’s rights to be free from
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Case No. 9-12-32
unreasonable search and seizure were infringed upon.   The police do not have the
authority to stop anyone for a de minimus traffic offense and frisk them merely
because they might be “guilty” of the “crime” of driving at 2:00 a.m.
{¶52} In this case, the Trooper’s protocol clearly qualified as an improper
fishing expedition in that she went far beyond what was necessary to complete the
original  purpose  for  which  the  initial  stop  was  made.    Trooper  Young  was
admittedly searching for evidence of an additional crime, even though she was not
able to articulate any facts in support of her continued search.   This was improper.
When a police officer's objective justification to continue detention
of a person * * * is not related to the purpose of the original stop,
and when that continued detention is not based on any articulable
facts giving rise to a suspicion of some illegal activity justifying an
extension  of  the  detention,  the  continued  detention  to  conduct  a
search constitutes an illegal seizure.
State  v.  Robinette,                                                                   80  Ohio  St.3d  234,  1997-Ohio-343,  paragraph  one  of  the
syllabus
{¶53} According  to  the  Trooper’s  own  testimony,  Schriml  had  done
nothing more than make a slightly improper, or imprecise, right-hand turn at 2:00
a.m. (when there were no other cars on the road, according to the video recording).
His  behavior,  his  demeanor,  and  his  interactions  with  the  Trooper  were
appropriate, polite, completely respectful, and gave no indication of impairment.
The Trooper testified that his speech was completely normal.   And yet, Schriml
found himself being frisked down by the side of the road, made to sit inside a
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Case No. 9-12-32
police cruiser, and subjected to further questioning concerning his activities that
evening.   The Trooper’s own testimony indicated that it was routine practice to
place drivers in the patrol vehicle to try to detect whether the driver may have
consumed any alcohol.
{¶54} Accordingly, I would have found that the Trooper’s actions went
beyond the bounds of what was permitted by law, and therefore, the motion to
suppress should have been granted.   There was also some validity to several of the
issues  Schriml  raised  concerning  the  implementation  of  field  sobriety  tests,
especially concerning his inability to perform some of the tasks due to his obesity
and other serious physical limitations that likely had an impact on the results.
However, as stated above, I believe the case should not have even proceeded to the
point of administering the field sobriety tests, if the Trooper had not conducted an
investigation far beyond what was permissible under the law, and would reverse
on those grounds.
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