I tell you what my friends, after reading State v. Brugnone, 2016-Ohio-6964, chivalry is not dead!  So what if you just so happen to be drinking and driving while trying to assist damsels in distress.

In Brugnone, a Trooper was traveling down the road when she encountered Brugnone’s vehicle stopped in his lane and with two pedestrians walking along the side of his vehicle.  Believing this suspicious, the Trooper pulled behind Brugnone, activated her overhead lights, and initiated a traffic stop.  Upon making contact with Brugnone, the Trooper inquired if there was a problem.

Brugnone explained he stopped to his car to pick up the two female pedestrians because they had been drinking and was going to take them to a nearby Meijer.

During this conversation, the Trooper smelled alcohol, observed that Brugnone’s eyes were bloodshot and glassy, and detected that Brugnone’s speech was slurred.  After pressuring Brugnone about alcohol consumption, Brugnone fessed up that he consumed two Angry Orchard beers three hours before the traffic stop.  With this information in hand, the Trooper administered the horizontal gaze nystagmus test, a portable breath test, the walk and turn test, and one leg stand test.

After calculating the test results, the Trooper placed Brugnone under arrest for OVI.  Soon thereafter, Brugnone took his issues with the stop to the trial court through a motion to suppress evidence.  The trial court, unfortunately, denied Brugnone’s motion.  Not wanting to give up the good fight, Brugnone took his arguments to the appellate court.  On appeal, Brugnone argued that the arresting officer did not have a warrant or an independent basis to prolong his detention beyond the purpose of the initial encounter.

Brugnone believed the following was in his favor to suppress the traffic stop:

1)         The odor of alcohol could have emanated from anyone in the car, including the ladies who were just trying to catch a ride to Meijer.

2)        His speech was not slurred and claimed that the Trooper’s contention to the contrary is demonstrably false.

3)        His purported bloodshot eyes, which the Trooper viewed for mere seconds, can easily be explained by the late hour.

4)        He calmly followed all instructions, safely pulled to the side of the road when asked to, and had the presence of mind to activate his hazard lights.

The Trooper, on the other hand, felt the following was not in Brugnone’s favor:

1)         Detected a strong odor of alcohol.

2)        Observed bloodshot eyes.

3)        Observed glassy eyes.

4)        Heard slurred speech coming from Brugnone.

5)         Admission to drinking.

6)        Brugnone could not maintain balance while sitting on the cruiser.

Taking all of the above into account, the appellate court began their analysis by stating that “when an officer’s objective reasons for prolonging detention in a traffic stop are unrelated to the purpose of the initial stop, the continued detention must be predicated on articulable facts giving rise to a suspicion of some illegal activity justifying an extension of the detention.  State v. Mapes, 2005-Ohio-3359.

Only reasonable suspicion that a driver is intoxicated is required to support further investigation.  State v. Beeley, 2006-Ohio-4799.  Reasonable suspicion is something more than an inchoate or unparticularized suspicion or hunch, but less than the level of suspicion required for probable cause.  Id.

The Second District has stated multiple times that whether articulable and specific facts exist to justify a prolonged detention for investigative purposes is often a close issue.  State v. Spillers, 2000 WL 299550.  To that end, where a de minimus traffic violation or something other than dangerous driving provides the reason for the initial stop, courts often conclude that the odor of alcohol alone does not provide reasonable suspicion of driving under the influence.  State v. Dixon, 2000 WL 1760664.  However, a strong odor of an alcohol beverage, bloodshot and glassy eyes and slurred speech are classic observations indicative of insobriety.  State v. Kuhl, 2008-Ohio-1641.

With that, the appellate court found the Trooper’s testimony credible and found that said testimony provided sufficient basis to pursue an OVI investigation.

Brugnone is another perfect example of why you should always refuse field sobriety tests and especially a portable breath test!  This case would have been a bit tougher on the Trooper hand Brugnone refused all tests!  And to think, Brugnone was just trying to be a nice guy!

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