[Cite as State v. Rudder,
2023-Ohio-993.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
:
TATIANA RUDDER : Case No. 2022CA00027
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. TRC 22 00408
JUDGMENT: Reversed
DATE OF JUDGMENT: March 27, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JAMES E. YOUNG DARREN L. MEADE
136 West Main Street 2602 Oakstone Drive
P.O. Box 1008 Suite 1
Lancaster, OH 43130 Columbus, OH 43231
Fairfield County, Case No. 2022CA00027 2
King, J.
{¶ 1} Plaintiff-Appellant the state of Ohio appeals the December 7, 2022
judgment of the Municipal Court of Fairfield County granting Defendant-Appellee Tatiana
Rudder's motion to suppress.
Facts and Procedural History
{¶ 2} The transcript of the suppression hearing and the body camera video of
Ohio State Highway Patrol Trooper M.P. Herdman provide the following facts.
{¶ 3} On January 16, 2022 at 11:54 p.m., Trooper Herdman was dispatched to
the scene of a possible disabled vehicle near U.S. 33 and Diley Road in Fairfield County
Ohio. On that evening, it was snowing heavily. The roads were snow covered and the
area was under a level 2 snow emergency.
{¶ 4} Upon arrival, Trooper Herdman located the vehicle, a silver 2015 Hyundai,
near the off ramp, and positioned at the bottom of a steep embankment approximately
100 feet off of the roadway. It appeared to Herdman that the vehicle had slid off the road.
As Herdman approached the Hyundai, Rudder exited the vehicle from the back seat.
Herdman noticed Rudder was having difficulty with balance and was using the car to
steady herself.
{¶ 5} Once Herdman approached Rudder, he noticed a strong odor of alcohol,
and the fact that her eyes were red and glassy with contracted pupils. Her speech was
slow and slurred.
{¶ 6} Rudder was unable to produce a driver's license, but the Hyundai was
registered in her name. At the point of Herdman's contact, Rudder was on the phone with
her boyfriend Adonis whom she had called to come and pick her up. Each time Herdman
Fairfield County, Case No. 2022CA00027 3
asked Rudder how much she had to drink she replied that Adonis had nothing to drink.
She then handed Herdman the phone. Herdman directed Adonis to their location.
{¶ 7} Herdman assisted Rudder up to the road near his cruiser as she was having
difficulty walking and asked for his assistance. Asked again how much she had to drink,
Rudder said she may have had a glass of wine. She apologized repeatedly. By this time,
Adonis had arrived on the scene and remained close by.
{¶ 8} Due to the weather and road conditions, Herdman did not ask Rudder to
perform the one-leg stand or walk and turn test. He did however, administer the horizontal
gaze nystagmus test. Rudder had difficulty following Herdman's directions during the test
and Herdman noted 6 of 6 clues of intoxication. Rudder was therefore placed under arrest.
{¶ 9} Herdman advised Adonis that he would be transporting Rudder to the Diley
Ridge Medical Center for processing and then she would be released to him. He directed
Adonis to meet them at the hospital. Instead of going directly to his own vehicle, Adonis
went first to Rudder's vehicle, opened the driver's side door and reached inside. Herdman
asked Adonis to step away from the car, advising he would handle the matter of the
vehicle.
{¶ 10} After Rudder was secured in Herdman's cruiser, Herdman went to Rudder's
car to turn off the hazard lights and retrieve the keys. Finding no keys he returned to his
cruiser and asked Rudder where her keys were. She stated they were in her purse, in the
car. Herdman again searched the car and the ground around the car but found neither a
purse, nor Rudder's keys.
Fairfield County, Case No. 2022CA00027 4
{¶ 11} Upon arrival at the hospital, Herdman asked Adonis if he had taken
Rudder's keys and purse. Adonis denied the same. Rudder later refused a urine screen
and was thereafter released from custody.
{¶ 12} Rudder was subsequently charged with operating a vehicle under the
influence. On February 22, 2022, Rudder filed a motion to suppress advancing four
arguments. Relevant to this appeal, Rudder argued Herdman lacked probable cause to
arrest her for operating a vehicle while impaired.
{¶ 13} A hearing was held on the motion on June 3, 2022. Trooper Herdman was
the sole witness.
{¶ 14} On July 21, 2022, the trial court issued its judgment entry granting Rudder's
motion to suppress. The court noted Trooper Herdman never observed Rudder in the
front seat or behind the wheel of the vehicle. It further noted the vehicle was not running
when Herdman arrived, there was no testimony that anyone had seen the vehicle in
motion, no indication how long it had been at the side of the road, or that the vehicle was
operable. For these reasons, the trial court found Trooper Herdman lacked probable
cause to arrest Rudder for operating under the influence.
{¶ 15} The state filed an appeal and the matter is now before this court for
consideration. The state raises one assignment of error as follows:
I
{¶ 16} "THE TRIAL COURT ERRED IN FINDING TROOPER HERDMAN
LACKED PROBABLE CAUSE TO ARREST FOR AN OVI UNDER R.C. 4511.19 AND
THEREFORE ERRED IN GRANTING APPELLEE'S MOTION TO SUPPRESS."
Fairfield County, Case No. 2022CA00027 5
{¶ 17} In its sole assignment of error, the state argues the trial court erred in finding
Trooper Herdman lacked probable cause to arrest Rudder. We agree.
{¶ 18} We review the question of whether an officer has reasonable suspicion or
probable cause to make a warrantless arrest de novo. Ornelas v. United States, 517 U.S.
690, 699,
116 S.Ct. 1657,
134 L.Ed.2d 911 (1996). However, "a reviewing court should
take care both to review findings of historical fact only for clear error and to give due
weight to inferences drawn from those facts by resident judges and local law enforcement
officers."
Id.
{¶ 19} "The standard for determining whether the police have probable cause to
arrest an individual for OVI is whether, at the moment of arrest, the police had sufficient
information, derived from a reasonable trustworthy source of facts and circumstances to
cause a prudent person to believe that the suspect was driving under the influence." State
v. Swope, 5th Dist. Fairfield No. 08 CA 50, 2009-Ohio-3849, ¶ 22.
{¶ 20} In State v. Anthony, 5th Dist. Stark No. 2015CA00226, 2016-Ohio-2905, an
appeal from a conviction for OVI, the appellant challenged the manifest weight and
sufficiency of the evidence against him, specifically the "operation" element of OVI. This
court noted:
"Effective January 1, 2004, the term 'operate' as used in R.C.
Chapter 4511, 'means to cause or have caused movement of a
vehicle ….’ R.C. 4511.01(HHH). This modification narrows the
definition of 'operate,' which effectively eliminates 'drunk radio
listeners, or people who use their cars as a four-wheeled, heated
Fairfield County, Case No. 2022CA00027 6
hotel room' from being convicted of OVI. Gill, 70 Ohio St.3d at 157-
158, 637 N.E.2d 897 (Pfeifer, J., dissenting)." State v. Barnard, 5th
Dist. Stark No. 2010-CA-00082, 2010-Ohio-5345,
2010 WL
4347572, ¶ 25, quoting State v. Schultz, 8th Dist. Cuyahoga No.
90412, 2008-Ohio-4448,
2008 WL 4078447, ¶ 19. (Footnotes
omitted).
"Notably, and in relation to movement of a vehicle, R.C.
4511.01(HHH) employs both the present tense ('to cause') and,
alternatively, the past tense (to 'have caused'), in defining the
conduct to which that section applies. The past tense indicates action
already completed. For purposes of R.C. 4511.19, to 'have caused'
movement of a vehicle is a fact that may be proved by circumstantial
evidence, which inherently possesses the same probative value as
direct evidence. State v. Jenks (1991), 61 Ohio St.3d 259,
574
N.E.2d 492." State v. Halpin, 2nd Dist. Clark App. No. 07CA78, 2008-
Ohio-4136, 2008 WL 3583349, ¶ 24; Barnard,
2010-Ohio-5345,
2010 WL 4347572, ¶ 29.
As our brethren in the Eight District has recognized,
Today, the difference between an OVI and a physical control
violation, besides the penalties, is that an OVI requires actual
movement of the vehicle, whereas a physical control violation does
not. After January 1, 2004, if there is no evidence that the person
Fairfield County, Case No. 2022CA00027 7
moved or caused the vehicle to move, that person cannot be
convicted of OVI, but may be convicted of being in physical control
of a vehicle while under the influence. Still, a person who is found
passed out in his vehicle on the side of the highway may be convicted
of an OVI because a jury could infer that the vehicle was moved to
that location. However, if a person decides to "sleep it off" in the
parking lot of the bar where the person drank, the person could be
convicted only of a physical control violation, unless there is evidence
of movement.
State v. Schultz, 8th Dist. Cuyahoga No. 90412, 2008-Ohio-4448,
2008 WL 4078447, ¶ 25.
{¶ 21} Here, the issue is probable cause to arrest, not sufficiency of the evidence
following a trial. We have reviewed the transcript of the suppression hearing and viewed
the entirety of Herdman's body camera video and find there is evidence that Rudder had
recently caused the vehicle to move. The body camera video shows Rudder's car, not in
the parking lot of a bar where she may have been "sleeping it off," "a drunk radio listener"
utilizing her car as "a four-wheeled heated hotel room," but rather alone at the side of an
interstate highway in a snow storm. Other than emergency vehicles, there is not even any
passing traffic. The hazard lights of Rudder's car were on and there was evidence
indicating she had recently either driven off the road or slid off the road. Further, she was
on the telephone attempting to direct her boyfriend to her location to help her. She
demonstrated signs of impairment. While the trial court partially relied upon the fact that
Fairfield County, Case No. 2022CA00027 8
no keys were found, Rudder's boyfriend was in Rudder's Hyundai before he left for the
hospital making the issue of the absence or presence of the keys much less clear. Finally,
although Rudder was seen exiting the car from the back seat, as previously noted, there
was evidence of recent movement of the car.
{¶ 22} Given the forgoing, we find Trooper Herdman was presented with sufficient
information to cause him to believe Rudder was driving under the influence providing him
with probable cause to arrest.
{¶ 23} The sole assignment of error is sustained.
{¶ 24} The judgment of the Fairfield County Municipal Court is reversed.
By King, J.,
Wise, P.J. and
Baldwin, J. concur.
AJK/rw
