10th District focuses on positive clues for impairment to find probable cause, while ignoring all clues that show a lack of impairment.

State v. Baah, 2016 Ohio 7131 (10th Dist.).

https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2016/2016-Ohio-7131.pdf

September 30, 2016

An officer reported to have witnessed Baah, at about 2:23am, pass him, change lanes abruptly, and slam on his breaks. After initiating the traffic stop, the officer reported that he observed an odor of alcohol and eyes that were bloodshot and glassy. Baah admitted to consuming alcohol and then participate in field sobriety tests. These included an HGN during which the officer reported observing all six clues, a walk-and-turn with an imaginary line, a one-leg-stand with no clues, and an non-standardized alphabet test. The officer admitted that he observed only two clues out of a possible 22 during the personal contact phase.

The Trial Court ruled that that the officer had reasonable suspicion to initiate the traffic stop and to conduct the field sobriety test, but reasoned that the State lacked probable cause to arrest. It agreed that the walk-and-turn test lacked substantial compliance and the alphabet test was an "unlawful intrusion on [appellee's] liberty," as it was a non-standardized test performed after appellee passed the one-leg-stand test."

The Tenth District disagreed, however. It looked not at the evidence that Baah was not impaired (e.g., 2 of out of 22 possible clues during personal contact, passing the one-leg-test, etc...), and instead focused solely on the limited facts supporting impairment: Baah's erratic driving, strong odor of alcohol, bloodshot and glassy eyes, admission to drinking alcohol, six out of six clues on the HGN test.