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9th District reverses prior decision in OVI case
TRACEY BLAIR
Legal News Reporter
Published: October 1, 2020
The 9th District Court of Appeals has reversed its own prior decision in a Wadsworth Municipal Court drunken driving case.
Ryan Fitzgerald appealed his conviction for operating a vehicle under the influence of drugs of abuse.
The appellate court previously affirmed Fitzgerald’s conviction in State v. Fitzgerald, 9th Dist. Medina No. 18CA0031-M, 2019-Ohio-1038 (“Fitzgerald I”).
Fitzgerald filed an application to reopen his appeal, alleging that his appellate counsel was ineffective failing to properly file the transcript of the suppression hearing. The 9th District determined that a genuine issue existed as to whether appellate counsel was ineffective and granted the motion.
Case summary shows that on April 3, 2017, Sergeant Chafin of the Wadsworth Police Department observed a vehicle traveling 39 miles per hour within a 25 miles per hour zone and initiated a traffic stop of the vehicle.
Fitzgerald was arrested for OVI, speeding and operating with a concentration of marihuana metabolite in his urine.
The trial court denied his motion to suppress the evidence obtained from the traffic stop.
Fitzgerald pleaded no contest to the violation of R.C. 4511.19(A)(1)(j)(vii) and the state dismissed the remaining charges. The trial court stayed the sentence pending appeal.
In his first case, Fitzgerald claimed the trial court erred when it denied his motion to suppress. In that case, the appellate court was unable to review his arguments because a transcript of the suppression hearing was not made a part of the appellate record.
Fitzgerald argued the officer did not have reasonable suspicion of a crime to detain him in order to conduct an OVI investigation, did not have probable cause to arrest him for OVI and the urine test was not conducted in accordance with the regulations of the Ohio Department of Health.
Fitzgerald does not dispute that the officer had reasonable articulable suspicion to make the initial traffic stop.
In determining that Chafin had reasonable suspicion to conduct the field sobriety tests in this case, the trial court found that although the sergeant did not witness any erratic driving or other signs of impairment, he did detect the odor of raw marijuana coming from the vehicle.
In addition, Fitzgerald admitted to smoking marijuana earlier in the day, and his passenger appeared to be “highly stoned,” the sergeant said.
Fitzgerald told the sergeant there was less than two grams of marijuana in the car.
“On cross-examination, Sgt. Chafin acknowledged that he did not observe any erratic driving that would suggest Mr. Fitzgerald was impaired. The sergeant further acknowledged that prior to conducting the field sobriety tests, he did not observe any physical indications of impairment in Mr. Fitzgerald and that the only ‘potential issue’ was that he misspelled the name of the street where he lived by dropping the last letter,” 9th District Judge Julie A. Schafer said in her opinion. “On appeal, Mr. Fitzgerald does not contest the trial court’s factual findings. Rather, Mr. Fitzgerald contends that based on the totality of the circumstances, the trial court erred in its ultimate determination that Sgt. Chafin had reasonable articulable suspicion to detain him in order to conduct field sobriety tests.
“Mr. Fitzgerald argues that in the absence of any indicia of impairment, the smell of unburnt marijuana and his ‘vague admission of consuming some marijuana earlier in the day’ was not sufficient to constitute reasonable suspicion in this case. We agree.”
The panel also agreed the trial court erred by determining Chafin had probable cause to arrest him for OVI.
“Although a review of the record shows the trial court’s other findings are based on competent credible evidence, we note that the trial court’s finding that Mr. Fitzgerald made ‘some confusing statements about where they were going’ is not supported by the record,” Schafer wrote.
Chafin testified that he did not witness any erratic driving and did not observe any physical or mental indications of impairment. Chafin also testified Fitzgerald was polite and cooperative throughout the traffic stop and after his arrest.
The appellate court also agreed Fitzgerald’s prior counsel was ineffective and that Fitzgerald was prejudiced by the deficiency.
Ninth District Judge Thomas Teodosio concurred, while appellate Judge Lynne Callahan concurred in part and dissented in part.
The case is cited State v. Fitzgerald, 2020-Ohio-4346.