State of Ohio/City of Bowling Green v. Charaya S. Watkins

Toledo, Ohio - Criminal defense attorney represented Charaya S. Watkins with a operating a vehicle while under the influence of alcohol or drugs charge.

On February 23, 2020, Charaya Watkins drove to the State Highway Patrol

Post in Bowling Green, Ohio to pick up, M.S., a friend who had been arrested for

operating a vehicle while under the influence of alcohol ("OVI”). Shortly after arriving,

Watkins herself was arrested for OVI, a violation of R.C. 4511.19(A)(1)(a) and (d).

{¶ 3} On June 11, 2020, Watkins filed a motion to suppress the results of field

sobriety and breath-alcohol-concentration ("BAC”) tests leading to her arrest, claiming

that the officer lacked the reasonable, articulable suspicion necessary to warrant detaining

her and administering the tests. The trial court held a suppression hearing on June 22,

2020. State Highway Patrol Trooper Christopher Kiefer and Watkins's boyfriend, C.M.,

testified.

{¶ 4} Trooper Kiefer testified that on the evening of February 22, 2020, while

working the 10:00 p.m. to 6:00 a.m. shift, he pulled over a vehicle and ultimately arrested

M.S. for OVI. Watkins arrived at the scene of that arrest in a separate vehicle and asked

what was going on. Trooper Kiefer said that M.S. was being arrested and told Watkins

that she could pick him up at the patrol post. Watkins remained approximately 20 to 30

yards away during this interaction.

{¶ 5} One to two hours later, Watkins walked into the patrol post to pick up M.S.

Trooper Kiefer made eye contact with her and noticed that her eyes were bloodshot and

glassy. He detected the odor of alcohol emanating from her breath. He asked if she had

been drinking and she said that she consumed one alcoholic beverage at 6:30 p.m. 3.

{¶ 6} Trooper Kiefer asked Watkins to take a portable breath test ("PBT”). She

submitted to the test, and it detected a blood alcohol content ("BAC”) of 0.117. He then

took her out to where his patrol car was parked and directed her to stand in front of the

vehicle, in view of the dashboard camera. He asked her to perform field sobriety tests,

including the horizontal gaze nystagmus ("HGN”) test, the walk-and-turn, and the oneleg stand, and he asked Watkins to recite C through X of the alphabet without singing it.

{¶ 7} Watkins exhibited six out of six clues on the HGN, four on the walk-andturn, and two on the one-leg stand. With respect to the alphabet test, Watkins began by

saying "C, D,” then started over, successfully reciting C through X. Kiefer read Watkins

the BMV Form 2255, then asked her to submit to a breath test. The breath test revealed a

BAC of 0.114.

{¶ 8} On cross-examination, Trooper Kiefer agreed that there can be other causes

for bloodshot, glassy eyes besides alcohol consumption, such as crying and eye fatigue.

He could not recall whether the odor of alcohol he observed was slight or moderate or

what type of alcohol it was. He did not recall Watkins stumbling or slurring her speech.

{¶ 9} Trooper Kiefer confirmed that it is not protocol to ask a person to take field

sobriety or breath tests as a matter of course when picking up someone who has been

arrested for OVI. However, because Watkins was going to be responsible for

transporting M.S., and because he observed indicators of possible impairment, he

followed up and asked Watkins to take the PBT. 4.

{¶ 10} C.M. testified that his birthday was on February 23, and he and a group of

people were "pre-gaming” on February 22, before his birthday party. His cousin, M.S.,

called to tell him he had been pulled over. C.M. drove to the location of the traffic stop

around 12:10 a.m. on February 23. Trooper Kiefer instructed him to get back in his car.

He did, and then left the scene.

{¶ 11} M.S. called C.M. around 2:30 or 3:00 a.m. and said that if a licensed driver

did not come to pick him up immediately, he would be taken to jail. Watkins, C.M., and

two other women drove to the post to get M.S. C.M. had been drinking, but Watkins had

not because she was the designated driver. She went in to get M.S. Thirty minutes

passed without her coming out, so C.M. went in to check on her. Trooper Kiefer told him

that she would not be able to leave because she "blew twice over the legal limit.”

{¶ 12} C.M. testified that the other two women who went with him to the station

were subjected to similar questioning and testing as Watkins. One of the women had a

BAC of zero and was permitted to drive everyone home. C.M. testified that he did not

see Watkins consume any alcohol that night. He also testified that she had cried that

evening, possibly explaining her bloodshot, glassy eyes.

{¶ 13} Immediately following the suppression hearing, the trial court denied

Watkins's motion to suppress. The court reasoned that the hour of the night, Watkins's

admission that she had consumed alcohol, the odor of alcohol, bloodshot, glassy eyes,

and the results of the PBT of 0.117 provided reasonable, articulable suspicion for Trooper 5.

Kiefer to request field sobriety tests, and the results of those tests, in conjunction with

Trooper Kiefer's observations, provided probable cause to arrest Watkins.

{¶ 14} Watkins entered a plea of no contest to the OVI charge. The court made a

finding of guilty and sentenced her to a fine of $1,075 ($475 suspended), a 33-day jail

term (30 days of which were suspended and the other three to be served in a driver

intervention program), a one-year license suspension, and three years' community

control. Watkins's conviction and sentence were memorialized in a judgment journalized

on July 20, 2020.

{¶ 15} Watkins appealed. She assigns the following error for our review:

The trial court erred when it denied Appellant's motion to suppress

because the facts do not show reasonable articulable suspicion to detain

Appellant and request field sobriety tests, and no probable cause existed to

arrest Appellant.

II. Law and Analysis

{¶ 16} In her sole assignment of error, Watkins argues that the trial court erred

when it denied her motion to suppress the results of the field sobriety and breath tests that

were performed. She maintains that the odor of alcoholic beverages, glassy, bloodshot

eyes, and her admission to drinking one alcoholic beverage seven hours earlier did not

supply Trooper Kiefer with reasonable, articulable suspicion to detain her to request

those tests. 6.

{¶ 17} The state responds that several of the factors enumerated by the court in

State v. Evans, 127 Ohio App.3d 56, 63, 711 N.E.2d 761 (11th Dist.1998), were indicated

here, supplying Trooper Kiefer with reasonable, articulable suspicion to conduct field

sobriety tests. Those indicators included (1) the time of the "stop” (3:12 a.m.); (2) the

odor of alcohol; (3) bloodshot, glassy eyes; (4) Watkins's admission that she had been

drinking; (5) the fact that Watkins had been at the same party as M.S.; and (5) the results

of her PBT.

{¶ 18} "Appellate review of a motion to suppress presents a mixed question of law

and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

When the trial court considers a motion to suppress, it acts as the factfinder and is in the

best position to resolve factual questions and to evaluate the credibility of witnesses. Id.

We, therefore, must accept the trial court's findings of fact if they are supported by

competent, credible evidence. Id. Our role then is to independently determine, without

deference to the trial court's conclusion, whether the facts satisfy the applicable legal

standard. Id.

A. Trooper Kiefer's initial encounter with Watkins was consensual.

{¶ 19} The Fourth Amendment to the United States Constitution and Article I,

Section 14 of the Ohio Constitution protect citizens from unreasonable searches and

seizures. "'The U.S. Supreme Court has created three categories of police-citizen contact

to identify the separate situations where constitutional guarantees are implicated:

(1) consensual encounters, (2) investigative or "Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 7.

20 L.Ed.2d 889 (1968)]” stops, and (3) arrests.'” (Citations omitted.) State v. Williams,

6th Dist. Lucas No. L-17-1148, 2018-Ohio-5202, ¶ 20, quoting State v. Staten, 4th Dist.

Athens No. 03CA1, 2003-Ohio-4592, ¶ 16.

{¶ 20} An arrest requires probable cause. State v. Barner, 6th Dist. Wood No.

WD-01-034, 2002-Ohio-2044. "Probable cause exists when circumstances would

warrant a prudent person to believe that a suspect has committed an offense.” Id.

{¶ 21} An investigatory stop requires reasonable, articulable suspicion of criminal

activity. State v. Mesley, 134 Ohio App.3d 833, 840, 732 N.E.2d 477 (6th Dist.1999),

citing United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607

(1975). It constitutes a seizure for purposes of the Fourth Amendment. State v.

Westover, 2014-Ohio-1959, 10 N.E.3d 211, ¶ 16 (10th Dist.).

{¶ 22} A consensual encounter requires neither probable cause nor reasonable,

articulable suspicion of criminal activity. Staten at ¶ 17. An encounter may be said to be

consensual when police "approach an individual in a public place, engage the person in

conversation, and request information, as long as the person is free to walk

away.” Id. An officer may ask to examine a person's identification or search his or her

belongings during a consensual encounter and he need not inform the citizen that he or

she may decline the request and walk away. Id. When a consensual encounter turns into

an investigative detention, however, constitutional protections are implicated and the

officer must have reasonable suspicion for the detention. State v. Martin, 2018-Ohio1705, 111 N.E.3d 730, ¶ 9 (9th Dist.). 8.

{¶ 23} Here, Watkins's encounter with Trooper Kiefer began when she voluntarily

entered the patrol post to pick up M.S. In State v. Murray, 6th Dist. Wood No.

WD-18-045, 2019-Ohio-4285, under circumstances substantially similar to the present

case, we found that the defendant's initial encounter with the trooper was consensual

where the defendant voluntarily entered the police station to pick up his friend who had

been arrested for OVI. See also State v. Trevarthen, 11th Dist. Lake No. 2010-L-046,

2011-Ohio-1013, ¶ 19 (finding encounter consensual where defendant drove to the police

station to pick up his friend who had been arrested for OVI and parked behind trooper's

police cruiser); State v. Trimble, 11th Dist. Portage No. 2010-P-0078, 2011-Ohio-4473

(finding encounter consensual where trooper approached defendant's vehicle when he

arrived at police station to pick up friend who had been arrested for OVI).

{¶ 24} Having concluded that Watkins's initial encounter with Trooper Kiefer was

consensual, we must next determine whether, during that consensual encounter, Trooper

Kiefer developed reasonable, articulable suspicion that Watkins had driven to the patrol

post while intoxicated, so as to justify the investigative detention, PBT, and field sobriety

tests that followed.

B. Reasonable, articulable suspicion did not arise during the consensual encounter.

{¶ 25} While a consensual encounter requires no probable cause or reasonable,

articulable suspicion, "[a] request that a driver perform field sobriety tests 'must be

separately justified by specific, articulable facts showing a reasonable basis for the

request.'” Trevarthen at ¶ 15, quoting Evans, 127 Ohio App.3d at 62, 711 N.E.2d 761, 9.

citing State v. Yemma, 11th Dist. No. 95-P-0156, 1996 WL 495076 (Aug. 9, 1996).

"Whether a request to perform field sobriety tests was reasonable is to be considered

under the totality of the circumstances.” Trevarthen at id., citing Evans at 63.

{¶ 26} It is often a close issue whether the specific facts of a case provide an

officer with reasonable, articulable suspicion for conducting field sobriety tests. State v.

Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, ¶ 16. Such decisions are "very

fact-intensive.” State v. Burkhart, 2016-Ohio-7534, 64 N.E.3d 1004, ¶ 15 (4th Dist.).

Ohio courts often reach differing conclusions when faced with seemingly similar

circumstances. Numerous factors may be considered, and small differences between

officers' descriptions of an encounter can form the basis for opposite outcomes.

{¶ 27} In Evans, the Eleventh District compiled a list of the factors that Ohio

courts have considered in determining whether an officer acted reasonably in detaining a

person to investigate suspicions that he or she operated a vehicle while intoxicated.

Those factors include:

(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 (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 10.

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) the suspect's admission of alcohol

consumption, the number of drinks had, and the amount of time in which

they were consumed, if given.

Id. at fn. 2. As emphasized by the Evans court, "[n]o single factor is determinative.” Id.

{¶ 28} This court has considered many of these factors in determining whether

reasonable, articulable suspicion exists to warrant administration of field sobriety or

breath tests. Sometimes those factors weigh in favor of a finding of reasonable,

articulable suspicion.

{¶ 29} For instance, in Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799,

Beeley was stopped at 3:00 a.m. for driving seven m.p.h. over the speed limit. He was

not weaving or driving erratically, but when the trooper approached the vehicle to speak

to Beeley, he detected a "strong” odor of alcohol. Beeley admitted to the trooper that he

had been drinking an hour before, however, his speech was not slurred and his gait was

not unsteady. We found that the strong odor of alcohol, combined with Beeley's 11.

admission to drinking, provided reasonable, articulable suspicion to conduct field

sobriety tests.

{¶ 30} Similarly, in New London v. Gregg, 6th Dist. Huron No. H-06-030, 2007-

Ohio-4611, ¶ 19, Gregg was stopped at 3:15 a.m. for suspicion of failure to properly

display license plates, at which time the officer also noticed that Gregg was not wearing a

seat belt. During the stop, the officer perceived that Gregg's eyes were "red” and

"glassy,” he smelled a "mild” to "moderate” odor of alcohol emanating from inside the

vehicle, and Gregg admitted to having a few beers. While the officer was not able to say

whether the odor of alcohol was coming from the passenger, the vehicle, or from Gregg,

and even though Gregg's speech was not slurred and his driving was not impaired, we

concluded that the officer had formed reasonable, articulable suspicion to perform field

sobriety tests. We acknowledged that "these facts present a close question,” but we held

that "[w]here 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.” (Internal citations and quotations

omitted.) Id. at ¶ 17, 19.

{¶ 31} And in State v. Maddux, 6th Dist. Wood No. WD-08-065, 2010-Ohio-941,

the officer initiated a stop of Maddux's vehicle at 2:57 a.m. because her license plate

light was not illuminated. When asked for her operator's license, Maddux searched her

entire purse looking for it, only to find that it was in her coat pocket. While Maddux

searched for her license, the officer detected an odor of alcohol and saw that her eyes 12.

were glassy, and Maddux admitted that she had consumed two alcoholic beverages. We

found that under the totality of the circumstances, reasonable suspicion of criminal

activity arose sufficient to justify detaining Maddux for field sobriety and breath tests,

therefore, the trial court properly denied Maddux's motion to suppress the results of those

tests.

{¶ 32} Despite our conclusions in Beeley, Gregg, and Maddux, similar—but not

identical—facts have led us to reverse trial courts' decisions denying defendants' motions

to suppress.

{¶ 33} For example, in State v. Kennard, 6th Dist. Huron No. H-01-006,

2001 WL 605106, *1-2 (June 1, 2001), Kennard caught the trooper's attention around

2:00 a.m. because her vehicle lacked a functioning license plate light. He then saw

Kennard weave within her own lane of travel. He initiated a stop of the vehicle.

According to the trooper, Kennard's speech was slurred and he detected a moderate or

strong odor of alcohol about her person. She admitted to drinking one beer. The trooper

administered field sobriety tests and conducted a PBT. Kennard moved to suppress the

results of those tests. The trial court granted Kennard's motion. It found that the trooper

lacked a factual basis for requiring Kennard to submit to either field sobriety tests or to a

breath-alcohol test. Important to its decision was that based on its review of the video

recording of the stop, Kennard's speech was not slurred, calling into question the

trooper's credibility. 13.

{¶ 34} The state appealed, but we agreed with the trial court. Ignoring the slurred

speech, we held that the remaining factors—the time of the stop, the moderate to strong

odor of alcohol about her person, and Kennard's admission to drinking one beer—were

insufficient to give rise to a reasonable, articulable suspicion that Kennard was

intoxicated.

{¶ 35} Likewise, in State v. Stricklin, 6th Dist. Lucas L-10-1277, 2012-Ohio-1877,

an officer initiated a stop of Stricklin's vehicle at 1:26 a.m., after observing that one of

his headlights was inoperable. Stricklin struck the headlight with his hand, rendering it

operable, but during the course of their interaction, the officer noticed that Stricklin had a

slight odor of alcohol on his breath, bloodshot, glassy eyes, and an anxious demeanor.

Stricklin denied that he had been drinking. The officer ran Stricklin's license information

and learned that he had a prior OVI. He asked Stricklin to take a PBT, which Stricklin

refused, then asked him to exit the vehicle to administer field sobriety tests. After

determining that Stricklin failed those tests, the officer arrested him for OVI.

{¶ 36} On appeal from the trial court's decision denying his motion to suppress

the results of the field sobriety tests, we explained that "[t]raffic violations of a

de minimus [sic] 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.” Id. at ¶ 12. We held, therefore, that the officer's

observations did not provide reasonable, articulable suspicion to warrant the

administration of field sobriety tests, and we reversed the trial court decision. 14.

{¶ 37} Here, Watkins did not stumble or slur her words or show other signs of

impairment. Trooper Kiefer observed only that her eyes were bloodshot and glassy (at

approximately 3:00 a.m.), she smelled of alcohol (of an unspecified strength), and she

admitted to having had one glass of wine (approximately seven hours earlier). As we

have often recognized, this case presents a close issue. We must conclude, however,

based on Kennard, 6th Dist. Huron No. H-01-006, 2001 WL 605106 and Stricklin, that

these observations did not provide Trooper Kiefer with reasonable, articulable suspicion

to warrant administering field sobriety and breath tests.

{¶ 38} Accordingly, we find Watkins's sole assignment of error well-taken

Reasonable, articulable suspicion did not arise warranting the

administration of field sobriety and breath tests during Watkins’s consensual encounter with Trooper Kiefer. Specifically, Trooper Kiefer observed the odor of alcohol emanating from Watkins, but of an unspecified strength, her eyes were bloodshot and glassy, but it was the middle of the night, and she admitted to consuming one alcoholic beverage many hours earlier. The trooper observed no other signs of impairment. We find Watkins’s single assignment of error well-taken.



We reverse the July 27, 2020 judgment of the Bowling Green Municipal

Court and remand for further proceedings. The city is ordered to pay the costs of this appeal under App.R. 24.