COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73654 STATE OF OHIO, : CITY OF NORTH OLMSTED, : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION WILLIAM PELZ, : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 5, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court Case No. 97-TRC-10103ABC JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: DONALD P. ALBENZE City of North Olmsted 23823 Lorain Road, #270 North Olmsted, Ohio 44070 BRYAN P. O'MALLEY 27243 Lorain Road North Olmsted, Ohio 44070 For Defendant-Appellant: JACK W. BRADLEY R.J. BUDWAY Bradley & Giardini Co., L.P.A. 520 Broadway, Third Floor Lorain, Ohio 44052 -2- TERRENCE O'DONNELL, PRESIDING JUDGE: William Pelz appeals from a judgment of the Rocky River Municipal Court entered following a bench trial where the court found him guilty of driving under the influence of alcohol, driving under suspension, and driving in a weaving course, alleging the court erred in denying his motion to suppress evidence. After a thorough review of the record and the arguments presented, we affirm that decision. The record reflects that around 3:19 A.M. on September 27, 1997, as Pelz operated his 1994 Chevrolet truck westbound on I-480 near the Columbia Road overpass in North Olmsted, Sergeant Donald Walling observed him weave into the berm and then into the second lane of traffic six or eight times. As a result, the officer stopped him and asked to see his driver's license. Pelz then stated he did not have a valid license, and when Officer Walling smelled a strong odor of alcohol on his breath, he placed Pelz into the back seat of the police car. Thereafter, Officer Kenneth Vagase arrived, also smelled a strong odor of alcohol on Pelz's breath and observed his eyes to be bloodshot and his face flushed, and he administered four field sobriety tests. Although Pelz passed three of the tests, he failed the Horizontal Gaze Nystagmus test. Vagase then arrested him for driving under the influence of alcohol, driving under license suspension, and driving in a weaving course. -3- Subsequently, Pelz entered pleas of not guilty and moved the court to suppress the evidence arguing that the officers had neither reasonable suspicion to stop him nor probable cause to arrest him. After a hearing, the court denied his motion and Pelz then withdrew his not guilty pleas, entered pleas of no contest to all charges and the court found him guilty. Pelz now appeals raising three assignments of error for our consideration. The first states: I. THE TRIAL COURT ERRED WHEN IT FAILED TO SUSTAIN THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE NORTH OLMSTED POLICE DEPARTMENT DID NOT HAVE PROBABLE CAUSE TO STOP THE APPELLANT. Pelz contends the court erred in denying his motion to suppress evidence, arguing that Sergeant Walling did not have reasonable suspicion to stop him. The city urges the court properly denied his motion, arguing that the officer had probable cause to stop Pelz for weaving onto the berm. The issue then presented for our consideration concerns whether the court erred in denying Pelz's motion to suppress evidence because the officer did not have reasonable suspicion to stop him. We recognize that in State v. Andrews (1991), 57 Ohio St.3d 86, the Supreme Court reiterated the standard, as provided in Terry v. Ohio (1968), 392 U.S. 1, regarding an investigatory stop at 87: In Terry,the United States Supreme Court held that a police officer may stop and investigate -4- unusual behavior, even without probable cause to arrest, when he reasonably concludes that the individual is engaged in criminal activity. In assessing that conclusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. * * *. Further, in State v. Bobo (1988), 37 Ohio St.3d 177, the court stated in its syllabus: 1. The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. (State v. Freeman [1980], 64 Ohio St.2d 291, 18 O.O. 3d 466, 414 N.E. 2d 1044, paragraph one of the syllabus, approved and followed.) Also, in Mentor v. Kennell (1992), 83 Ohio App.3d 637, the court stated in relevant part at 642: Driving on the berm provided the specific articulable facts to warrant the investigative stop; * * *. And, in In re Eric W. (1996), 113 Ohio App.3d 367, the court upheld the traffic stop where the driver swerved off the side of the road, nearly struck a bridge abutment, and then continued to weave slightly within the traffic lane. Here, the record reveals Sergeant Walling testified at the suppression hearing that around 3:19 A.M. on September 27, 1997, he followed Pelz for almost one-half mile westbound along I-480 and observed him weave into the slow lane berm and back into the second lane of travel between six and eight times. We conclude that this testimony constituted specific and articulable facts which, taken together with rational inferences from those facts, provided reasonable suspicion that Pelz operated his truck while under the -5- influence and, therefore, justified the traffic stop. Accordingly, we overrule this assignment of error. The second assignment of error states: II. THE TRIAL COURT ERRED WHEN IT FAILED TO SUSTAIN THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE NORTH OLMSTED POLICE DEPARTMENT HAD FAILED TO GIVE THE APPELLANT A MIRANDA WARNING BEFORE THEY TOOK HIM INTO CUSTODY. Pelz contends the court erred in denying his motion to suppress evidence, arguing that Officer Vagase failed to read him his Mirandarights prior to administering the field sobriety tests. The city urges the court properly denied his motion to suppress, arguing that police officers are not required to read Miranda rights to a suspect prior to administering field sobriety tests, because those tests are not considered to be testimony. The issue then presented for our consideration concerns whether the court erred in denying Pelz's motion to suppress evidence because the police officer failed to read him his Miranda rights prior to administering the field sobriety tests. We observe that in Piqua v. Hinger (1968), 15 Ohio St.2d 110, the Supreme Court addressed this precise question and stated in its syllabus: 1. Physical tests, whereby a person accused of operating a motor vehicle while under the influence of intoxicating liquor is required to write his name and address, to pick up coins placed on the floor, to close his eyes and touch his hand to his nose, and to submit to a Breathalyzer test, and motion picture films made thereof, are real or physical evidence and not such communication or -6- testimony of the accused as is protected by the constitutional privilege against self- incrimination. 2. Testimony regarding such tests, and the films thereof, are not subject to exclusion by reason of the failure to advise the accused of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 346, and are admissible in evidence irrespective of whether such advice is given. (Schmerber v. California, 384 U.S. 757.) In accordance with Piqua v. Hinger, supra, we therefore overrule this assignment of error. The third assignment of error states: -7- III. THE TRIAL COURT ERRED WHEN IT FAILED TO SUSTAIN THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE NORTH OLMSTED POLICE DEPARTMENT HAD FAILED TO PROPERLY ADMINISTER THE HORIZONTAL GAZE NYSTAGMUS TEST IN WHICH THEY RELIED UPON TO FIND PROBABLE CAUSE TO ARREST THE APPELLANT. Pelz contends the court erred in denying his motion to suppress evidence, arguing that Officer Vagase failed to properly administer the Horizontal Gaze Nystagmus test and, therefore, he lacked probable cause to arrest Pelz for driving under the influence. In support of his contention, Pelz has attached to his appellate brief a copy of the U.S. Dept. of Transportation DWI Detection and Standardized Field Sobriety Testing Student Manual. The city urges the court properly denied his motion to suppress, arguing that this court may not consider the Field Sobriety Testing Manual on appeal because Pelz failed to present it during the suppression hearing; the city has filed a motion to strike any and all references to that manual contained in Pelz's brief. The city further argues that the record demonstrates both police officers had been properly trained and experienced in administering the Horizontal Gaze Nystagmus test. The issue then presented for our consideration concerns whether the court erred in denying Pelz's motion to suppress this evidence based on improper administration of the Horizontal Gaze Nystagmus Test. -8- We first observe that the syllabus in State v. Ishmail (1978), 54 Ohio St.2d 402, states: 1. A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. Next, in Huber v. O'Neill (1981), 66 Ohio St.2d 28, the court defined probable cause at 30: `A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged,' is a good definition of the term `probable cause.' * * *. And, in State v. McCaig (1988), 51 Ohio App.3d 94, the court stated in relevant part: * * * Ohio courts have consistently applied the 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. Atwell v. State (1973), 35 Ohio App.2d 221, 64 O.O. 2d 342, 301 N.E. 2d 709. * * *. Here, the record reveals Pelz argued the Horizontal Gaze Nystagmus test was improperly administered because the officers used an improper distance from the suspect's nose for the stimulus and failed to inquire whether the suspect wore contact lenses. However, the evidence is inconclusive, and because the Field Sobriety Testing Manual is not properly before this court, we are unable to consider it. The record before us, however, does contain testimony from both Walling and Vagase regarding their training and -9- experience with the Horizontal Gaze Nystagmus test which supports the inference the test had been properly administered. Additionally, the evidence showed that Pelz weaved six to eight times into the berm of I-480, had a strong odor of alcohol on his breath, and had bloodshot eyes and a flushed face. Under the totality of the circumstances, we conclude that the officers had reasonable grounds to believe that Pelz operated his truck while under the influence of alcohol and therefore had probable cause to arrest him. Accordingly, we overrule this assignment of error. 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 Rocky River 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. KENNETH A. ROCCO, J., JAMES D. SWEENEY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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 .