COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73500 CITY OF RICHMOND HEIGHTS : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION JOHN WILLIAMS, JR. : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : NOVEMBER 25, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Lyndhurst Municipal Court : Case No. 97-TRC-2791A-C : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: KATHERINE LANG BETTASSO, ESQ. RICHARD J. PEREZ, ESQ. 466 Northfield Road Interstate Square Building I Bedford, OH 44146 4230 State Route 306 Willoughby, OH 44094 JOHN T. PATTON, J.: Defendant-appellant John Williams Jr. ( defendant ) appeals the trial court's decisions denying his first motion to suppress -2- evidence, refusing to hear his second motion to suppress evidence, and excluding the testimony of his expert witness in favor of plaintiff-appellee City of Richmond Heights ( city ). This case arises from a traffic stop which occurred on February 26, 1997 at approximately 12:15 a.m. Officer Olexa testified he was driving westbound when he observed a vehicle traveling eastbound which had windows that were tinted very dark. Olexa initiated a traffic stop and informed defendant he was stopped for tinted windows. Olexa then checked the windows with a Tint-o-Meter finding only 33 percent light coming through the windows as opposed to the fifty percent required by Ohio law. While questioning defendant about the condition of his windows Olexa noticed a moderate odor of alcoholic beverages on his breath, his eyes appeared to be very bloodshot and glassy, and his speech appeared to be delayed and unsure. Olexa wrote defendant a ticket for Prohibited Tinted Windows in violation of R.C. 4513.241. Olexa re-approached defendant's car and asked him if he had been drinking. Defendant replied no. Olexa then administered several roadside tests. First, he had defendant perform the Horizontal Gaze Nystagmus which provides an officer with six factors to look for which indicate intoxication. Defendant exhibited four of the six factors. Second, defendant performed the walk-and-turntest. Olexa stated defendant's footing appeared to be unsure and he overstepped on steps four and five * * * and he staggered on the turn just a bit * * * plus he stepped over the -3- line. The third test defendant performed was the one-leg stand. Olexa testified defendant swayed just a bit and had to put his foot down on step 20 for balance. At the conclusion of the field tests Olexa advised defendant he knew he had been drinking and defendant conceded he had one beer at 7:00 p.m. while playing darts at the Lady Luck Bar. Olexa transported defendant to the police station where defendant took a blood-alcohol test and tested .119. Defendant was then charged with driving under the influence in violation of R.C. 4511.19(A)(1) and impaired driving in violation of R.C. 4511.19. Defendant filed an appeal of his Administrative License Suspension ( ALS ) and a motion to suppress arguing his stop and arrest were unlawful and without probable cause. A hearing was held and the trial court denied his ALS appeal and the motion to suppress. The trial was originally set for June 25, 1997 but was reset for September 24, 1997 after defendant filed a motion for reconsid- eration of the denial of a continuance and a supplemental request for discovery. Defendant then filed a second motion to suppress claiming the results of the blood-alcohol test should be excluded because the test was conducted on an unreliable breath alcohol testing machine in violation of the Ohio Administrative Code. In response, the state filed a motion in limine arguing defendant not be permitted to introduce evidence regarding the admissibility of the test because the motion was untimely filed. On the day of trial, the trial court denied defendant's second -4- motion to suppress because it was untimely. At the conclusion of the trial, a jury found defendant not guilty of the DUI charge but determined he was guilty of having tinted windows and driving while impaired. Defendant timely filed his notice of appeal and presents three assignments of error. His first assignment of error states as follows: TRIAL COURT ERRED IN OVERRULING THE DEFENDANT APPELLANT'S FIRST MOTION TO SUPPRESS IN THE WITHIN MATTER. Defendant argues Olexa did not have a reasonable and articulable suspicion to conduct an investigatory stop. He claims Olexa was traveling 35 mph in the opposite direction and only had a split second to observe his side and rear windows because his front window is not tinted. Therefore, defendant maintains his stop was not based on criminal activity but rather a subjective observation his windows were too tinted. Lastly, he contends alterations to vehicles do not automatically create a reasonable suspicion; thus there are no objective facts to warrant Olexa's investigatory stop and the totality of the circumstances also do not justify the stop. The state counter-argues Olexa's investigatory stop of defendant was based upon the reasonable articulable suspicion of excessive window tinting, a violation of R.C. 4513.241; thus the stop was justified. Under the Fourth Amendment to the United States Constitution, a police officer who lacks probable cause, but whose observations -5- lead him reasonably to suspect that a particular individual has committed, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke suspicion. Terry v. Ohio (1968), 392 U.S. 1. Following this line of reasoning, if a police officer has reasonable suspicion of criminal activity he may perform a traffic stop if it is necessary to investigate the suspicious circumstances. Berkemer v. McCarty (1984), 468 U.S. 420. However, the propriety of any investigativestop depends upon whether the officer's suspicion is reasonable and based upon specific and articulable facts before him. Id.; Terry, supra. An investigative stop must be viewed in the light of the totality of the surrounding circumstances. State v. Freeman (1980), 64 Ohio St.2d 291. Applying the above law to the facts of this case, we find Olexa had reasonable suspicion based upon the specific and articulable fact that defendant's windows were excessively tinted. Olexa was traveling eastbound and defendant was traveling westbound in a lit area with no other traffic around on the same street. Olexa stated he noticed the side and back windows were tinted very dark and from experience believed they were too dark. Although Olexa only had a very short amount of time to observe defendant's vehicle, he did see the windows in a lit area and he only had to notice whether the windows appeared to be excessively tinted. Based on the facts of the present case Olexa was justified in performing the traffic stop to determine whether defendant's windows were excessively tinted. -6- Defendant argues further that his detention after being ticketed was unconstitutional because it exceeded the scope and duration permissible of an investigatory stop. Defendant claims Olexa's purpose for stopping him was to issue him a ticket for excessive tint. Thus, Olexa's questions concerning his alcohol consumption subsequent to the ticketing without witnessing any poor driving or anything that would indicate he was under the influence of alcohol, were outside the scope allowed by the Fourth Amendment. The state maintains Olexa formed a new reasonable suspicion and then probable cause to arrest defendant for DUI when he detected an odor of alcohol, observed defendant with glassy eyes and delayed unsure speech, and witnessed defendant's poor perfor- mance on the field sobriety tests. Having determined the initial stop of defendant was lawful we must now decide whether the subsequent questioning and roadside testing of defendant was also lawful. We note that the scope and duration of the investigative stop must be limited to effectuate the purpose for which the initial stop was made. United States v. Brignoni-Ponce (1975), 422 U.S. 873. If circumstances attending an otherwise proper stop should give rise to a reasonable suspicion of some other illegal activity that triggered the stop, then the vehicle and the driver may be detained for as long that new articulable and reasonable suspicion continues. Under these conditions, the continued detention is lawful, even if the officer is satisfied that the suspicion which initially justified the stop has dissipated. State v. Myers -7- (1990), 63 Ohio App.3d 765. However, the lawfulness of the initial stop will not support a fishing expedition for the evidence of another crime. State v. Venham (1994), 96 Ohio App.3d 649, 655. After legally stopping defendant, Olexa suspected defendant may have been intoxicated because he smelled moderately of alcohol, defendant's eyes appeared to be bloodshot and glassy, and his speech was delayed and unsure. These are the classic signs of intoxication which provide police officers with the impetus to conduct further testing and questioning of defendants. See City of Beachwood v. Sims (1994), 98 Ohio App.3d 9; State v. Smith (1994), 96 Ohio App.3d 130; and State v. Lowman (1992), 82 Ohio App.3d 831. Therefore, we find that after Olexa observed defendant exhibiting the above characteristics he formed a new reasonable suspicion upon which he could expand the scope and duration of the initial investigatorystop to determine whether defendant was intoxicated. Based on the foregoing, Olexa's further detention of defendant did not exceed the scope and duration allowed by the Fourth Amendment. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: TRIAL COURT ERRED BY REFUSING TO HEAR THE DEFENDANT'S SECOND MOTION TO SUPPRESS. Defendant argues the trial court abused its discretion in denying his second motion to suppress. He contends the trial court denied him due process of law by denying his second motion to suppress because by doing so the court relieved the state of its statutorily required burden of proving the BAC machine was -8- certified and the proper solutions were used. In addition, defendant contends since factual issues were involved that determined the motion, the trial court erred by not filing findings of fact as required by Crim.R. 12(E). Crim.R. 12(C) Motion date, states as follows: All pretrial motions except as provided in Rule 7(E) and Rule 16(F) shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of justice may extend the time for making pretrial motions. The effect of the failure to comply with Crim.R. 12(C) is stipulated in Crim.R. 12(G) which states, [f]ailure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (C) * * * shall constitute a waiver thereof * * *. Defendant became aware of information in July, 1997, that improper solutions and certifications of the BAC machine may result in improper test results. Defendant filed a supplemental request for discovery of additional information on the BAC machine on July 22, 1997. At the suggestion of the prosecutor, defense counsel met with the police officer in charge of the BAC machine in the second week of September 1997. After this meeting, defense counsel had all the information he needed to decide whether to file a second motion to suppress regarding the BAC machine. Trial was set for September 24, 1997, so defense counsel had seven days or until September 17, 1997 before trial to file the motion. For whatever reason, defense counsel allowed at least four days to pass from the time of his meeting with the police officer and did not file the -9- second motion to suppress until September 18, 1997, which is six days before trial and outside the seven day rule provided in Crim.R. 12(C). In Akron v. Milewski (1985), 21 Ohio App.3d 140, 142, the court observed that the granting of an untimely filed motion to suppress is a matter within the trial court's discretion. The Ohio Supreme Court has stated that an abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Karns (1992), 80 Ohio App.3d St.2d 199. On the date of the hearing, September 24, 1997, the trial court addressed defendant's second motion to suppress. Defense counsel stated the officer in charge of the BAC machine was on vacation so it took longer than expected to set up a meeting, and that in the interest of justice the trial court should grant the motion. The state then addressed the court and stated the motion was filed late and there was no way to obtain a person to testify on such short notice from the company who manufacturers BAC machines. Also, there are no regulations concerning the calibra- tion solution used on the BAC machine and the only regulations concerning the machine relate to the weekly calibrations which are done by the senior operator every week. The trial court denied the motion because it was not filed in a timely manner. We find the trial court did not abuse its discretion in denying defendant's second motion to suppress. Defendant had at least four days to file the second motion to suppress evidence, -10- which would have made it timely, but instead defendant waited until the fourth day, September 18, 1997 to file. This filing was outside the seven day period provided in Crim.R. 12(C) and therefore untimely. Defendant also argues the trial court did not address the merits of the second motion to suppress on the record or make findings of fact pursuant to Crim.R. 12(E). Crim.R. 12(E) states [w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record. In the present case, the record reveals before the trial started the trial court addressed the second motion to suppress and stated the motion was denied because it was untimely. This is a procedural ruling and not a determination based on the merits of the motion or on the facts. Therefore, the trial court did not have to confront the merits or the facts and there was no violation of Crim.R. 12(E). Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error states as follows: THE COURT ERRED IN DENYING THE TESTIMONY OF DEFENDANT'S EXPERT WITNESS. Defendant argues the trial court abused its discretion by not allowing his expert to testify as to the weight of the evidence. Defendant claims Evid.R. 702 allows testimony by an expert when such knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue. Further, defendant contends his expert was going to testify not to the general -11- reliability of alcohol testing, equipment, or procedures, but only to the weight to be given. Specifically, defendant argues his expert would have offered testimony to challenge the accuracy of the test conducted by Olexa by showing he could not have produced the test result claimed by the prosecution. The result is that defendant's physiology and alcohol consumption would have been proven to be inconsistent with the results of the breathalyzer. Lastly, defendant maintains this ruling is unconstitutional because it denies him the opportunity to present evidence in his defense and the right to a fair trial. In response, the state argues the defense expert was not actually called at trial and the expert testimony was not proffered so any error is therefore waived and this issue is not properly before this court. In support, the state cites Evid.R. 103(A)(2) claiming this rule states the defendant must proffer to the trial court the desired testimony to be given by a witness to preserve any error in excluding evidence. In State v. Vega (1984), 12 Ohio St.3d 185, the Court held expert testimony was properly excluded concerning a breathalyzer test because an accused may not make a general attack upon the reliability and validity of the breath testing instrument *** [but an accused] may attack reliability of specific testing procedures and qualifications of operator, including expert testimony as to testing procedures. Id. at 189. -12- This holding indicates a defendant is allowed to have an expert testify on his behalf to determine the validity of specific testing procedures and the qualifications of the operator. In the present case, at the second motion to suppress hearing, defense counsel stated defendant's expert: [w]ould be helpful to discuss different things about the BAC DataMaster used by Richmond Heights, as well as the solution used, it would go to the weight of the evidence and the issue of the admissibility. This reveals that defendant's expert would not testify about the general reliability of the breathalyzer test but rather would testify about, among other things, the solutions and technical procedures employed in the use of the BAC DataMaster. Therefore, in light of Vega, defendant's expert testimony was permissible at trial. The admission or non-admission of evidence lies within the broad discretion of the trial court and will form the basis for reversal on appeal only upon an abuse of that discretion which amounts to prejudicial error. State v. Lundy (1987), 41 Ohio App.3d 163. Thus, we need to determine whether defendant was prejudiced at trial by the exclusion of his expert's testimony. Unfortunately, we are unable to make this determination because defendant did not file the trial transcript with this court. Because we cannot determine whether defendant was prejudiced, there is no basis to support a finding that the trial court abused its discretion by not -13- allowing defendant's expert to testify. Accordingly, defendant's third assignment of error is overruled. Judgment affirmed. -14- 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 Lyndhurst 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. DIANE KARPINSKI, P.J. JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .