Ohio Appellate Reports


CITY OF CINCINNATI v. BLAIR, Unpublished Decision
(12-15-2006) 2006-Ohio-6619 CITY OF CINCINNATI,
Plaintiffs-Appellants, v. KATHARINE J. BLAIR,
Defendant-Appellee. NOS. C-060045, C-060046. Court of
Appeals of Ohio, First District, Hamilton County. Date of
Judgment Entry on Appeal: December 15, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Criminal Appeal From Hamilton Municipal
Court, TRIAL NOS. 04TRC-42598A, 04TRC-42598C.

Judgment Is Affirmed.

J. Rita McNeil, City Solicitor, and Marva K. Benjamin,
Assistant City Prosecutor, for Plaintiff-Appellee.

Lyons & Lyons and Robert H. Lyons, for Defendant-Appellant.

GORMAN, P.J., and SUNDERMANN, J., concur.



{¶ 1} In this case, we are asked to decide at what
point defendant-appellant Katharine Blair was under arrest
for operating a vehicle under the influence of alcohol
(“OVI”).[fn1] Blair contends that she was arrested before
the administration of field sobriety tests, and without
probable cause, where various officers (1) requested that
she remain in her vehicle after she had crashed into
another car; (2) placed her in the rear seat of a cruiser;
and (3) transported her across the highway to perform the
field sobriety tests. But because Blair was not arrested
until she failed the field sobriety tests, her assignment
of error is overruled, and the judgment of the trial court
convicting her of OVI is affirmed.

{¶ 2} In October 2004, Blair was charged with OVI.
Blair moved to suppress incriminating evidence, but the
trial court denied her motion. After having her suppression
motion denied, Blair pleaded no contest to the charge and
was found guilty of OVI. On appeal, Blair challenges the
trial court’s denial of her suppression motion.

{¶ 3} On the date of the accident, Blair was
traveling north on Interstate 71 when she lost control of
her vehicle and crashed into another vehicle. Officer
Thomas Stanton observed the two vehicles as they appeared
to be “coming apart after they had made contact” with each
other. Stanton did not see the initial impact. On seeing
that the two cars had collided, Stanton radioed for
assistance, and Officer Thomas Rackley immediately
responded. Rackley approached one of the vehicles and saw
Blair seated in the driver’s seat. On closer examination,
Rackley detected an odor of alcohol emanating from the
vehicle. Rackley testified that Blair’s eyes were dilated,
that she seemed confused, and that she appeared to have a
blank stare on her face. Based on these observations,
Rackley told Stanton that he believed Blair was under the
influence of alcohol.

{¶ 4} Stanton then approached Blair’s vehicle and
saw that the airbag had deployed and that airbag dust was
still in the air. Stanton told Blair to stay in her vehicle
while other officers attempted to stop the interstate
traffic and to secure the accident scene. Blair complied.

{¶ 5} Officer Paul Grein was also dispatched to the
scene. Stanton told Grein that that he had not talked to
Blair yet, but that she was under the influence. Stanton
also told Grein that Blair had earlier been chased by
another car before the accident. A short time later, Grein
removed Blair from her vehicle and placed her in the back of
his cruiser. Grein then drove Blair away from the clutter
and mayhem of the accident scene so that he could
administer field sobriety tests.

{¶ 6} Grein testified that he had only moved Blair
across the highway: “I initially parked on the left side of
the interstate near the on ramp from the Norwood Lateral,
and I moved to the right side in the berm area of the
interstate near the exit ramp to, I believe, the Norwood
Lateral there.” Once they were across the highway, the
field sobriety tests were administered on a flat, dry
surface. Grein further testified that Blair mixed up and
missed some letters while reciting the alphabet, and that
her speech was slurred.

{¶ 7} Grein next asked Blair to perform the
walk-and-turn test, but she was unable to complete the test
because her balance was so poor. In fact, during the test
Blair had to use Grein’s shoulder to brace herself from
falling, and she was unable to stand with one foot in front
of the other without stumbling off the line. At the
conclusion of the field sobriety tests, Grein told Blair
that she was under arrest for OVI.

{¶ 8} At a suppression hearing, the credibility of
the witnesses is an issue for the trier of fact.[fn2]
Accepting the properly supported findings of the trier of
fact as true, an appellate court must determine as a matter
of law, without deference to the trial court’s conclusion,
whether the trial court erred in applying the substantive
law to the facts of the case.[fn3]

{¶ 9} Blair assigns error to the trial court’s
finding that there was probable cause to arrest her for
OVI. The gravamen of Blair’s complaint is that her arrest
had occurred when Stanton told another officer that Blair
was under the influence, and when he requested that she
remain in her vehicle. Blair contends that at that point
there was insufficient probable cause to justify the
purported arrest. Alternatively, Blair argues that the
arrest had occurred either when Grein placed Blair in the
back of his cruiser, or when Grein transported Blair to
another location to perform the field sobriety tests. The
dispositive inquiry is at what point Blair was under
arrest. We are convinced that Blair was not under arrest
until she failed the field sobriety tests, and the judgment
of the trial court is accordingly affirmed.

I. When was Blair Arrested?

{¶ 10} Under Ohio law, an arrest occurs when there
is (1) an intent to arrest, (2) under a real or pretended
authority, (3) accompanied by actual or constructive
seizure or detention of the person, and (4) which is so
understood by the person arrested.[fn4]

{¶ 11} In this case, we are presented with a factual
scenario that is somewhere between an investigative
detention and an arrest. The determination of when an
investigative detention becomes an arrest requires that the
court use common sense and ordinary human experience as

{¶ 12} Blair first contends that the arrest occurred
when Stanton told her to remain in her vehicle. But Stanton
testified that the accident had occurred on I-71, and that
there was debris strewn about the roadway. He also
testified that he and Rackley had to quickly maneuver their
vehicles into a position that would secure the scene and
prevent further accidents. Stanton also stated that he told
Blair to remain in her vehicle because there were “still
people trying to drive through the scene, and [he] didn’t
want [Blair] to get run over,” and that the scene was
“hectic.” We note that at the time Blair appeared to be
dazed, was confused, and was unresponsive to the officers’
inquiries. And despite the officers’ best efforts, they
were having a difficult time keeping people from driving
through the accident scene.

{¶ 13} Under these circumstances, safety and
security justified the protective measures taken by the
officers. These facts failed to meet the intent-to-arrest
element required by Darrah. There was testimony that Blair
was incoherent, and whether her state was chemically
induced was irrelevant. The evidence also showed that the
accident scene was scattered with debris, that overly
anxious motorists had repeatedly driven through the scene,
creating a great risk of harm to both officers and victims
alike, and that the responding officers were having a
difficult time securing the area. Under these chaotic
conditions, Blair’s unresponsive state, coupled with the
dangerous conditions, justified the officers’ actions and
belie each of Blair’s arguments. The record convinces us
that the officers did not intend to arrest Blair until
after the field sobriety tests were performed. Asking Blair
to remain in her vehicle, moving her to the back of a
cruiser, and transporting her across the highway were all
done to secure the accident scene and to ensure Blair’s
protection. The officers would have been derelict if they
had not acted accordingly.

{¶ 14} Common sense tells us that Stanton
justifiably requested that Blair remain in her vehicle.
Stanton testified that he had asked Blair “several times if
she was ok, to get her attention * * * . [And] the whole
time she held on to the steering wheel, and the airbag
[was] deployed and she [was] just sitting there.” Stanton
had not intended for Blair to be under arrest at the time.

{¶ 15} Likewise, temporarily placing Blair in the
rear of a cruiser did not require probable cause because
she was not under arrest. In State v. McFarland, the
suspect sat in a cruiser while a background check was
conducted for outstanding warrants.[fn6] And in State v.
Blankenship, the suspect sat in the police car while a
traffic ticket was being issued.[fn7] Finally, in State v.
Queensberry, the suspect was not under arrest when he was
handcuffed and placed in the back of a cruiser, where the
action was taken for safety reasons and in furtherance of
an investigation.[fn8]

{¶ 16} Finally, driving Blair across the highway and
out of harm’s way could not have been considered an arrest
— at least not in this instance, where the movement
was of a minimal distance, was necessary to protect Blair,
and had allowed the remaining officers to clear the
wreckage. The question of when the transportation
transcended an investigative detention to an arrest is a
closer question — but not that close. Clearly Grein
moved Blair so that he could investigate whether Blair was
under the influence or not. But in this case, we are left
wondering what Grein’s alternatives would have been. Grein
could have (1) performed the field sobriety tests in the
middle of I-71, (2) conducted the tests on the shoulder of
the highway, while motorists picked their collective ways
through wreckage and police cruisers, or (3) moved Blair a
short distance away from the accident scene, to a road less
traveled. Grein got it right.

{¶ 17} By all accounts, pandemonium reigned at the
accident scene. Motorists were disregarding the line of
defense created by the officers’ patrol cars, creating
Cincinnati’s own motorist-induced version of spaghetti
junction. The safety of both Blair and Grein justified
moving Blair from the left side of the highway to the right
side, at a ramp out of harm’s way.[fn9] And we cannot say
that Blair was under arrest at this point. Accordingly,
Blair’s assignments of error are meritless, and we hold
that Blair was not under arrest until after the field
sobriety tests had been performed. The judgment of the
trial court is affirmed.

Judgment affirmed.

[fn1] R.C. 4511.19(A)(1)(a).

[fn2] See State v. Mills (1992), 62 Ohio St.3d 357, 582
N.E.2d 972; State v. Fanning (1982), 1 Ohio St.3d 19, 437
N.E.2d 583.

[fn3] See State v. Klein (1991), 73 Ohio App.3d 486, 597
N.E.2d 1141.

[fn4] See State v. Darrah (1980), 64 Ohio St.2d 22, 26, 412
N.E.2d 1328.

[fn5] See U.S. v. Sharpe (1985), 470 U.S. 675, 105 S.Ct.

[fn6] (1982), 4 Ohio App.3d 158, 446 N.E.2d 1168.

[fn7] (1985), 12th Dist. No. CA85-03-017.

[fn8] 2001-Ohio-3267.

[fn9] See, e.g., Pennsylvania v. Mimms (1977), 434 U.S.
106, 98 S.Ct. 330.