WARREN Court rules for driver in DUI case

The appeals court ruled based on a trooper's performance of field sobriety tests.
By TIM YOVICH
VINDICATOR TRUMBULL STAFF
WARREN -- The 11th District Court of Appeals has ruled that evidence against a Warren man charged with drunken driving should have been thrown out of court.
Trooper Erik Golias of the Ohio State Highway Patrol stopped Marvin J. Brown, of Milton Street, the morning of June 8, 2004, on state Route 46 in Howland.
Brown was driving his vehicle 50 miles an hour in a 40-mph zone when pulled over, records show.
Golias noticed a strong odor of alcohol and Brown's eyes were bloodshot and glassy, according to records. Golias reported that Brown fumbled with his cards and paper, dropping his wallet on his lap and license on the seat.
The trooper ordered Golias out of his vehicle and administered three field sobriety tests and determined that Brown failed all of them.
Brown told Golias that he had drunk seven beers. Brown refused to allow his blood-alcohol content to be tested.
Brown was subsequently charged in Warren Municipal Court with driving under the influence of alcohol, speeding and failure to wear a seat belt.
The argument
Brown's attorney, Samuel F. Bluedorn of Warren, argued that the evidence against Brown should be suppressed because the prosecution failed to show the field sobriety tests are standardized.
Bluedorn asserted during a suppression hearing that Atty. Traci Timko Rose, prosecutor in the case, failed to prove that the tests were conducted in a standardized manner that is provided by the National Highway Transportation Safety Administration because the test manual wasn't introduced as evidence at the hearing.
Rather, the trooper acknowledged that he failed to perform one of the three tests in strict compliance with the manual and didn't remember some of the specifics of the testing procedure.
State law has since been amended, no longer requiring strict compliance with testing standards for the result to be admissible in court.
Judge Thomas P. Gysegem agreed with Rose and disagreed that the evidence should be suppressed. Brown then pleaded no contest to DUI and speeding and the seat-belt charge was dismissed.
He was sentenced to 10 days in jail, fined $350, his license was suspended for two years, and he was placed on three years' nonreporting probation. The sentenced was deferred during appeal.
The appellate court's ruling means the charges can't be refiled against Brown.
In writing the opinion in which Judge Cynthia Westcott Rice concurred and Judge Diane V. Grendell dissented, Presiding Judge Donald R. Ford opined that when the field sobriety tests are excluded, there was no probable cause for the DUI arrest.
Dissenting opinion
In her dissenting opinion, Judge Grendell said that she agreed with her fellow jurists the state failed to establish that Golias conducted the tests according to the federal standards.
However, she disagreed with them, asserting that the trooper had probable cause to charge Brown with DUI based on the totality of the facts and circumstances.
She wrote that "there is abundant information to cause a prudent person to believe that appellant [Brown] was driving under the influence."
Judge Grendell pointed out that though Golias did not see Brown driving erratically, such an observation isn't required to arrest.
What is essential is evidence that Brown's ability to operate a motor vehicle was impaired by alcohol and there are numerous indications by Golias that Brown's coordination was impaired.
yovich@vindy.com