COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68458 CITY OF CLEVELAND : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES R. JOHNSTON : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 16, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CLEVELAND MUNICIPAL COURT CASE NO. 94-TRC-56094 A-D JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: CAROLYN W. ALLEN Chief Prosecuting Attorney City of Cleveland EDWARD T. BUELOW (#0002710) Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: THOMAS A. SESNY JR. (#0059141) Laing & Sesny 1521 Georgetown Rd., #300 Hudson, OH 44236 - 3 - 3 SPELLACY, P.J.: Defendant-appellant James Johnston ("appellant") appeals the denial of his motion to suppress evidence. Appellant raises the following assignments of error for review: I. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS EVIDENCE OF HIS ARREST, AND ALL SUBSEQUENT EVIDENCE FLOWING FROM IT, BECAUSE THE ARRESTING OFFICER HAD NO PROBABLE CAUSE TO ARREST DEFENDANT-APPELLANT FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL. II. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE OF THE RESULTS OF THE BREATH ALCOHOL VERIFIER TEST. Finding neither assignment of error to have merit, the judgment of the trial court is affirmed. I. On August 6, 1994, appellant was arrested when he refused to sign citations for impeding the flow of traffic and failure to wear a seat belt. Appellant also was charged with driving under the influence of alcohol and for operating a vehicle with a prohibited alcohol concentration. Appellant entered not guilty pleas to the charges and filed a motion to suppress evidence. At the hearing held on the motion to suppress, appellant testified that on Friday, August 6, 1994, he was in the Flats area of Cleveland. Appellant had stopped his automobile to speak to a friend who was assisting a woman change her tire. Appellant's vehicle was blocking traffic on the busy - 4 - 4 roadway. Two police officers told appellant to pull his car around the corner because he was stopped in traffic. The officers wrote out tickets while appellant stood outside his car. Appellant was angry and refused to sign the tickets. He was placed under arrest, handcuffed, and put in the police vehicle. The police officers then asked appellant if he had been drinking. Appellant was not asked to take any sobriety tests at the scene. Appellant admitted drinking four beers that evening from approximately 10:30 p.m. to 2:30 a.m. Officer Jeffrey Ryan testified he observed appellant sitting in his automobile speaking to some people. Appellant's automobile was stopped in the roadway with traffic backed up behind him. Appellant complied when Officer Ryan told him to move his car. Officer Ryan and his partner returned five to ten minutes later to find appellant once again seated in his car which was stopped in the same place impeding traffic. Ryan asked appellant for his driver's license and directed him to pull his car around the corner. The traffic was too heavy to conduct a traffic stop at that location. When the officers reached appellant's position, he was sitting on the trunk of his car. Officer Ryan wrote citations for impeding the flow of traffic and for a seat belt violation. The officers exited their vehicle and explained the tickets to appellant. Ryan told appellant that signing the tickets was not an admission of guilt but a receipt that he received the ticket. Appellant refused to sign the tickets. He was belligerent and used - 5 - 5 profanity. He was advised several times that his signature on the tickets was not an admission of guilt. Appellant became argumentative and combative. He bunched his fist. Ryan smelled alcohol and noticed appellant's eyes were glassy. Appellant continued to refuse to sign the tickets. He was placed under arrest, handcuffed, and placed in the police vehicle. The smell of alcohol was stronger in the vehicle. Appellant answered in the affirmative when asked if he had been drinking. Ryan had decided to arrest appellant for driving under the influence as well as for his refusal to sign the traffic citations before appellant was placed in the police vehicle. No field sobriety tests were conducted due to appellant's belligerent and argumentative attitude. The officers had to struggle with appellant in order to handcuff him. Ryan did call for a portable breathalyzer machine. The officer who administers the test with the machine was unable to come to the scene. Appellant was given the portable breathalyzer test in the parking lot of the police station. Appellant failed the test. The trial court overruled the motion to suppress finding the officers did have probable cause to arrest appellant for driving under the influence of alcohol. Appellant entered into a plea bargain in which he changed his plea to no contest to the charges of slow speed and operating a motor vehicle with a prohibited alcohol concentration. The other two charges were nolled. Appellant was found guilty of the charges. - 6 - 6 II. In his first assignment of error, appellant contends his motion to suppress should have been granted as the officer lacked probable cause to arrest him for driving under the influence of alcohol. Appellant argues that evidence of glassy eyes, the odor of alcohol, and combativeness is not sufficient to constitute probable cause. He asserts the appearance of being intoxicated is not enough to establish probable cause without any other indicia of intoxication. Appellant points out that no field sobriety tests were administered nor was there any testimony appellant's motor coordination was impaired. In a motion to suppress, the trial court assumes the role of trier of fact. State v. Clay (1973), 34 Ohio St.2d 250. It is the trial court's function to weigh the evidence and to determine questions of credibility. Maumee v. Johnson (1993), 90 Ohio App.3d 169, 171. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71. However, without deference to that trial court's conclusion, it must be determined independently whether, as a matter of law, the facts meet the appropriate legal standard. State v. Clayton (1993), 85 Ohio App.3d 623, 627. Appellant does not argue the initial stop was not reasonable or that his arrest for refusal to sign the citations in violation of R.C. 2935.26(A)(4) was not lawful. Appellant argues the arresting officer lacked probable cause to arrest him for driving - 7 - 7 under the influence at the time the arrest was made. If the officer was without probable cause at the time of the arrest, any evidence discovered subsequently must be suppressed. An officer has probable cause to arrest if the facts and circumstances within the officer's knowledge are sufficient to cause a prudent person to believe the defendant had committed the offense. See State v. Heston (1972), 29 Ohio St.2d 152. The facts and circumstances are those which existed at the moment the arrest was made. Beck v. Ohio (1964), 379 U.S. 89, 91. [P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules. Illinois v. Gates (1983), 462 U.S. 213, 232. The standard for probable cause is nontechnical and based on the factual and practical considerations used by reasonable, prudent people in everyday life. Id. Ohio courts have applied a totality-of-the- circumstances test to determine if there were reasonable grounds to believe that a person had been operating a motor vehicle while under the influence of alcohol. State v. McCaig (1988), 51 Ohio App.3d 94. The existence of probable cause is a factual question. State v. Pavao (1987), 38 Ohio App.3d 178. Appellant primarily relies on State v. Finch (1985), 24 Ohio App.3d 38, to support his argument. In Finch, the court held the appearance of intoxication was not enough to establish probable cause without evidence of any impaired motor coordination. As in - 8 - 8 the instant case, no field sobriety tests were performed. After the arrest occurred, the defendant exhibited uncooperative behavior and was verbally abusive. Appellant also cites to Wickliffe v. Gutauckas (1992), 79 Ohio App.3d 224, in which the court held probable cause did not exist based on the odor of alcohol and the officer's observance of the defendant's behavior more than an hour earlier. The court noted no field sobriety tests were performed because the location of the stop was dangerous. The court noted the field sobriety tests could have been conducted elsewhere before the detention became an arrest. However, in Finch and Wickliffe there is no evidence the defendants were uncooperative and belligerent as in the instant case. In State v. Costilla (June 30, 1992), Sandusky App. No. S- 91-23, unreported, the court applied the totality of the circumstances test and found sufficient probable cause to arrest for driving under the influence. The officer did not administer any field sobriety tests because the defendant was uncooperative and becoming combative. The only indicia of intoxication were bloodshot, glassy eyes and that his motor functions appeared to be impaired. Similarly, appellant was uncooperative and belligerent. He basically ignored the officer's direction to move his vehicle when he returned to the same place in the roadway and again stopped his car, impeding heavy traffic. Appellant became angry and combative - 9 - 9 to the point where he balled his fist. Police officers are not required to conduct field sobriety tests when, in their judgment, it would be futile due to the person's behavior. Officer Ryan noticed appellant smelled of alcohol, had glassy eyes and was angry and belligerent. Under the facts of this case, probable cause existed for appellant's arrest for driving under the influence. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant argues the results of his Breath Alcohol Verifier Test should have been suppressed. Appellant bases this upon his argument in his first assignment of error that his arrest for driving under the influence of alcohol was illegal. This court has determined there was probable cause to arrest appellant for that offense. Therefore, the arrest was legal and any evidence flowing from the arrest could be used to convict appellant. Appellant's second assignment of error is overruled. Judgment affirmed. - 10 - 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. PATRICIA BLACKMON, J. and JOSEPH J. NAHRA, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .