COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68095 CITY OF CLEVELAND : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION THOMAS DIXON : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 31, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 94-TRC-48681-D JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: CAROLYN WATTS-ALLEN Chief Prosecuting Attorney City of Cleveland EDWARD LARUE, Assistant Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DENNIS P. MURRAY 400 Terminal Tower 50 Public Square Cleveland, Ohio 44113 - 3 - O'DONNELL, J.: Appellant, Thomas Dixon, appeals from his conviction for driving while under the influence of alcohol in violation of City of Cleveland Ordinance Section 433.01(A)(1). On July 2, 1994 at 10:16 p.m., Officer Thomas of the Cleveland Police Department stopped his police cruiser behind appellant's 1991 Buick at the intersection of East 126th Street and Buckeye Road. When appellant did not proceed through the intersection after two opportunities to do so, Thomas honked the police car horn but appellant failed to respond. Thomas then activated the emergency lights, exited the cruiser, and approached appellant's vehicle to determine if he was all right. Thomas' partner then asked appellant to exit his vehicle. Thomas noted that appellant swayed while walking and smelled of alcohol. Thomas further observed that appellant had red eyes and slurred speech. Thomas then conducted several field sobriety tests and, on the basis of appellant's performance, cited him with DUI and weaving and operating at less than the posted speed. Thomas then placed appellant under arrest and transported him to headquarters where he conducted an intoxilyzer test. On August 26, 1994, appellant moved the court to suppress the results of the field sobriety and intoxilyser tests on the basis that the police lacked probable cause to stop him and further alleging that intoxilyser exam was not properly - 4 - conducted. At the suppression hearing Thomas admitted that he wrote the wrong code sections on the traffic citations and intended to charge appellant with impeding the flow of traffic and failure to give full attention to driving. On that basis the trial court dismissed the two traffic citations, but then denied appellant's motion to suppress evidence of his intoxication. Thereafter, appellant plead no contest to driving while under the influence of alcohol. Appellant now appeals presenting two assignments of error for our consideration. I. Appellant's first assignment of error states: WHETHER THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS BREATHALYZER TEST RESULTS, INCULPATORY STATEMENTS MADE BY THE DEFENDANT AND FIELD SOBRIETY TEST RESULTS BY IMPLICITLY FINDING THAT THE POLICE OFFICERS HAD REASONABLE SUSPICION TO SEIZE, DETAIN THE DEFENDANT. Appellant argues that the trial court erred in denying his motion to suppress because the arresting officer did not have a "reasonable suspicion" to stop him and have him exit his vehicle. The state contends that the initial stop of appellant was valid and that no further justification is needed to ask the driver of a lawfully stopped vehicle to exit that vehicle. The issue then for our resolution is whether or not the trial court properly denied appellant's motion to suppress evidence of his - 5 - intoxication. The United States Supreme Court, in Terry v. Ohio (1968), 392 U.S. 1, ruled that the propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. See, State v. Bobo (1988), 37 Ohio St.3d 177; State v. Woods (1993), 86 Ohio App.3d 423. In order for an investigative stop to be considered valid, the state must establish the existence of specific and articulable facts which would reasonably lead a police officer to believe that the defendant was indulging in criminal activity. Terry, supra, at 21; Bobo, supra, at 178. However, as the Supreme Court noted in Bobo at 180: *** The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. *** A brief stop of suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. *** (Citations omitted.) Further, the United States Supreme Court, in Pennsylvania v. Mimms (1977), 434 U.S. 106, held that a police officer may order a motorist to get out of a car which has been properly stopped for a traffic violation, even without suspicion of criminal activity. What is now referred to as a "Mimms order" was viewed by the court as an incremental intrusion into the driver's personal liberty which, when balanced against the officer's - 6 - interest in protection against unexpected assault by the driver and against accidental injury from passing traffic, is reasonable under the Fourth Amendment. State v. Evans (1993), 67 Ohio St.3d 405, 407. In the instant case Officer Thomas testified that appellant's car was stopped in traffic and that appellant had no response to efforts by police to cause him to respond to traffic flow. The fact that Thomas improperly cited appellant does not mean the officers failed to comply with directions of Terry, supra, but merely negates the possibility of a conviction on those improper citations. Additionally, under Mimms, supra, once appellant's vehicle was lawfully stopped by Thomas, the request for appellant to exit the vehicle did not trigger further constitutional requirements. In view of the foregoing we conclude that the trial court did not err in denying appellant's motion to suppress evidence of his intoxication. Appellant's first assignment of error is without merit. II. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO SUPPRESS BREATHALYZER TEST RESULTS BY IMPLICITLY DECLARING THAT THE CITY OF CLEVELAND MET ITS BURDEN OF PROVING WITH COMPETENT EVIDENCE THAT THE BREATHALYZER TESTING APPARATUS HAD BEEN PROPERLY CALIBRATED IN COMPLIANCE WITH OHIO DEPARTMENT OF HEALTH STANDARD O.A.C. 3701-53- 04(A)(1). - 7 - Appellant argued that the court erred in denying its motion to suppress because the state failed to prove that the breathalyser testing machine was properly calibrated. The state contends simply that appellant has failed to exemplify any error in the record on appeal. However, appellant was convicted and sentenced for driving while under the influence of alcohol, a charge that does not require an intoxilyzer test but relies on the defendant's performance of field sobriety tests and his general demeanor as observed by arresting officers. State v. Bakst (1986), 30 Ohio App.3d 141. Officer Thomas testified that he observed appellant having bloodshot eyes, slurred speech, and a strong odor of alcohol. Further, appellant's performance of field sobriety tests led Thomas to the conclusion that he was intoxicated. This evidence of appellant's intoxication warranted his conviction for driving while under the influence of alcohol, and any evidence of appellant's BAC was merely cumulative. In light of this overwhelming other evidence of appellant's guilt, any error in the admission of the Intoxilyzer results is harmless beyond a reasonable doubt. Appellant's second assignment of error is without merit. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., and ANN DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .