[Cite as State v. Krzemieniewski, 2016-Ohio-4991.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 15CA0015-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARTIN L. KRZEMIENIEWSKI MEDINA MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE Nos. 13 TRC 02021
13 CRB 00463
DECISION AND JOURNAL ENTRY
Dated: July 18, 2016
BALDWIN, Judge.
{¶1} Appellant, Martin Krzemieniewski, appeals his conviction from the Medina
Municipal Court. This Court affirms.
I
{¶2} Montville Township Police Officer Brett Harrison observed a car travel left of
center while turning from Fox Meadow Drive to Poe Road. The driver-side tires crossed
completely over the solid yellow centerline. After that, the car moved toward the right side of
the road and the passenger-side tires crossed over the white fog line by about half a tire width.
Officer Harrison stopped the car for the marked-lanes violations. Krzemieniewski was the driver
of the car.
{¶3} Upon approaching the car, Officer Harrison noticed the odor of raw marijuana
coming from it. He also observed that Krzemieniewski’s eyes were bloodshot and glossy.
Krzemieniewski admitted that he had smoked some marijuana “a little bit ago” and that there
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was more marijuana in the car. Officer Harrison administered standard field sobriety tests. He
observed one clue on the one-leg stand, but no clues on the other tests. Officer Harrison further
testified that Krzemieniewski seemed “[o]verly calm” under the circumstances.
{¶4} Officer Harrison arrested Krzemieniewski for operating a vehicle under the
influence of alcohol or drugs (“OVI”). A blood test was performed and Krzemieniewski was
charged with OVI in violation of R.C. 4511.19(A)(1)(j)(vii) and 4511.19(A)(1)(j)(viii)(II). He
was also cited for the marked-lanes violation under R.C. 4511.33 and possession of marijuana in
violation of R.C. 2925.11(A). The citation further noted that Krzemieniewski had two prior
OVI’s.
{¶5} Krzemieniewski pled not guilty and filed a motion to suppress the evidence against
him. Following multiple continuances by both sides, a hearing was held December 9, 2013.
Officer Harrison, who had six years of experience as a police officer, was the only witness to
testify at the suppression hearing. On October 15, 2014, the trial court issued a judgment entry
denying the motion to suppress.
{¶6} Thereafter, Krzemieniewski filed a motion to dismiss arguing that the trial court
took an unreasonable amount of time to rule on his motion to suppress in violation of his speedy
trial rights. The trial court denied the motion to dismiss noting, inter alia, that Krzemieniewski
had waived time on multiple occasions.
{¶7} Thereafter, the prosecutor, Krzemieniewski, and his counsel signed a pretrial
agreement. According to that agreement, the prosecutor recommended that, if Krzemieniewski
pled guilty or no contest to the R.C. 4511.19(A)(1)(j)(vii) and marijuana possession charges, the
State would dismiss the balance of the charges and consent to driving privileges. Above the
signatures of Krzemieniewski and his counsel, the agreement states: “The recommendation of
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the [p]rosecutor is accepted by the defendant and defendant’s counsel and defendant waives all
speedy trial rights.”
{¶8} The court accepted Krzemieniewski’s no contest plea and found him guilty of OVI
in violation of R.C. 4511.19(A)(1)(j)(vii) and marijuana possession in violation of R.C.
2925.11(A). Krzemieniewski moved for a stay of his sentence pending appeal, which the trial
court granted. Krzemieniewski raises two assignments of error on appeal.
II
Assignment of Error Number One
DEFENDANT’S ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE.
{¶9} In his first assignment of error, Krzemieniewski argues that the trial court erred in
overruling his motion to suppress because he contends that Officer Harrison lacked probable
cause to arrest him for OVI. We disagree.
{¶10} We begin by noting the standard by which this Court reviews a trial court’s
decision on a motion to suppress.
Appellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. Consequently, an appellate court must
accept the trial court’s findings of fact if they are supported by competent,
credible evidence. Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusions of the trial court,
whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶11} The legal standard for probable cause to arrest for OVI is whether “at the moment
of the arrest, the police had sufficient information, derived from a reasonably trustworthy source
of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was
driving under the influence.” State v. Homan, 89 Ohio St.3d 421, 427 (2000), superseded by
4
statute on other grounds. This involves an examination of the totality of the facts and
circumstances known at the time of the arrest. Id.
{¶12} Krzemieniewski does not disagree with the trial court’s factual findings that: (1) he
committed two traffic violations; (2) the odor of raw marijuana was coming from his vehicle; (3)
his eyes were bloodshot and glossy; (4) he admitted that he had smoked marijuana recently; and
(5) he admitted that there was marijuana in the car.1 He argues, however, that the totality of the
circumstances do not support probable cause to believe that he was driving under the influence
because: (1) Officer Harrison smelled only raw, unsmoked marijuana; (2) Officer Harrison had
not completed Advanced Roadside Impaired Driving Enforcement (“ARIDE”) training prior to
the stop; (3) Officer Harrison’s police report did not list factors that would be consistent with
sobriety; (4) Krzemieniewski passed the field sobriety tests; and (5) Krzemieniewski was calm
throughout the stop.
{¶13} Krzemieniewski first points out that Officer Harrison smelled raw marijuana,
indicating that it had not been smoked. While the smell of burnt marijuana would be a stronger
indicator of recent marijuana consumption and possible impairment, Krzemieniewski admitted to
Officer Harrison that he had smoked marijuana “a little bit ago.” Neither Officer Harrison nor
the court relied on the odor of marijuana alone in determining that there was probable cause.
Rather the marijuana odor was coupled with Krzemieniewski’s admission that he had recently
smoked marijuana, thus, supporting the probable cause determination.
{¶14} Krzemieniewski next argues that the court erred in mentioning that Officer
Harrison had ARIDE training because he did not complete that training until after the date of the
1
In his brief, Krzemieniewski lists: (1) his admission of marijuana consumption; (2) the odor of
marijuana; (3) his marked lanes violations; and (4) his bloodshot eyes. He does not, however,
dispute that he also admitted that there was marijuana in the car.
5
stop. On cross-examination, Officer Harrison was asked whether he was familiar with ARIDE,
and he responded that he took that training in the spring after this stop. Officer Harrison further
testified that, prior to the date of the stop, he had completed National Highway Traffic Safety
Administration (“NHTSA”) training for impaired driving detection. While his NHTSA training
focused on alcohol impairment, it also addressed marijuana. As Officer Harrison had training in
detecting marijuana impairment prior to the arrest, the trial court’s reference to his subsequent
ARIDE training was harmless.
{¶15} Krzemieniewski further argues that he exhibited a number of signs consistent with
sobriety that Officer Harrison did not account for in his police report. In his testimony at the
suppression hearing, Officer Harrison indicated which factors he did, and which he did not,
observe. In addition, the trial court’s decision denying the motion to suppress noted a number of
factors that either were not observed or referenced in the police report. Thus, those factors were
properly accounted for in making the probable cause determination.
{¶16} Krzemieniewski next points out that he passed the field sobriety tests. He implies
that because he passed those tests, he could not be arrested for OVI. In support of his argument,
he directs our attention to State v. Mason, 5th Dist. Stark No. 2012 CA 00075, 2012-Ohio-5463,
wherein it was noted that the one-leg stand and walk-and-turn tests could be affected by
marijuana consumption. Id. at ¶ 43-44. Krzemieniewski’s reliance on Mason is misplaced. In
Mason, the defendant argued that “field sobriety tests are unhelpful in establishing impairment
due to use of marijuana.” Id. at ¶ 41. The Mason court was not presented with the issue of
whether a defendant who passed field sobriety tests, yet exhibited other indicia of impairment,
could be arrested for OVI.
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{¶17} “[T]he totality of the facts and circumstances can support probable cause for an
arrest even in the absence of the administration of field sobriety tests.” State v. Russo, 9th Dist.
Medina No. 09CA0009-M, 2009-Ohio-6914, ¶ 10. The fact that Krzemieniewski passed the
field sobriety tests does not negate the other indicia of impairment observed by Officer Harrison.
{¶18} Krzemieniewski further notes that Officer Harrison described his demeanor after
exiting the car as “[o]verly calm from what * * * the average person is [at] a traffic stop.”
Because he was not immediately arrested following the officer’s initial observations and he
passed the field sobriety tests, Krzemieniewski contends that he “was arrested for being calm.”
Krzemieniewski continues that in State v. Adair, 5th Dist. Muskingum No. CT2007-0035, 2007-
Ohio-7176, nervousness was an indicator of impairment. Id. at ¶ 20. Krzemieniewski implies
that an unusual degree of calmness could not also be an indicator. The trial court did not
reference Krzemieniewski’s demeanor in reaching its probable cause determination. We,
likewise, do not find it necessary to address this issue as Officer Harrison had probable cause to
believe that Krzemieniewski was operating a vehicle under the influence of a drug of abuse aside
from his demeanor. See State v. Willard, 9th Dist. Medina No. 04CA0045-M, 2005-Ohio-1627,
¶ 27 (declining to address field sobriety tests where other independent factors established
probable cause).
{¶19} Krzemieniewski’s arguments regarding his performance on the field sobriety tests
and his demeanor miss the essential question regarding probable cause. That is whether,
notwithstanding the field sobriety tests or his demeanor, a prudent person would believe that
Krzemieniewski was operating a vehicle under the influence of a drug of abuse. See State v.
Rospert, 9th Dist. Medina No. 12CA0033-M, 2012-Ohio-6110, ¶ 8, quoting Homan at 427 (“It [
] does not matter why [the trooper] waited until after administering a portable breath alcohol test
7
to arrest [the defendant] because the issue is simply whether, notwithstanding the test, a ‘prudent
person’ would have cause to believe that [the defendant] had operated the truck under the
influence of alcohol.”). Under the totality of the circumstances in this case, probable cause
existed based on Krzemieniewski’s traffic violations, his bloodshot and glossy eyes, his
admission of having smoked marijuana recently, and the odor and presence of marijuana (albeit
raw) in the car. See Homan at 427 (erratic driving, red and glassy eyes, odor of alcohol, and
admission of alcohol consumption “amply support[ed]” decision to arrest).
{¶20} Krzemieniewski’s first assignment of error is overruled.
Assignment of Error Number Two
THE COURT’S ELEVEN MONTH DELAY BETWEEN THE MOTION TO
SUPPRESS AND DECISION WAS UNREASONABLE AND IN VIOLATION
OF KRZEMIENIEWSKI’S RIGHT TO A SPEEDY TRIAL.
{¶21} In his second assignment of error, Krzemieniewski argues that his speedy trial
rights were violated due to the time that lapsed between the hearing on his motion to suppress
and the trial court issuing a decision on the motion. We disagree.
{¶22} Krzemieniewski was charged with multiple offenses of different degrees, the
highest one being a first-degree misdemeanor. Therefore, the statutory time to bring him to trial
was ninety days. See R.C. 2945.71(B)(2) and (D). That time, however, may be extended by any
period necessitated by a motion of the accused. R.C. 2945.72(E). In addition, a defendant or his
counsel may waive the defendant’s right to a speedy trial. State v. O’Brien, 34 Ohio St.3d 7, 9
(1987).
{¶23} We note that Krzemieniewski does not dispute that his motion to suppress tolled
his speedy trial clock, nor does he contend that any of the continuances sought by either side
prior to the hearing on the motion to suppress were unreasonable or that any of that time should
8
count against the State. Rather, his argument focuses solely on the time period following the
suppression hearing while awaiting a ruling from the trial court.
{¶24} A trial judge should rule on motions as expeditiously as possible. State v. Sanchez,
110 Ohio St.3d 274, 2006-Ohio-4478, ¶ 27; State v. Martin, 56 Ohio St.2d 289, 297 (1978).
Krzemieniewski directs our attention to State v. Arrizola, 79 Ohio App.3d 72 (3d Dist.1992),
wherein that court found a seven-month delay was unreasonable.2 Id. at 76. We have previously
distinguished Arrizola from cases, such as this one, where the defendant has waived his speedy
trial rights. See State v. Goshen, 9th Dist. Lorain No. 93CA005574, 1994 WL 510837, *3 (Sept.
21, 1994).
Following an express, written waiver of unlimited duration by an accused of his
right to a speedy trial, the accused is not entitled to a discharge for delay in
bringing him to trial unless the accused files a formal written objection and
demand for trial, following which the state must bring the accused to trial within a
reasonable time.
O’Brien at paragraph two of the syllabus. When a waiver does not mention a specific time
period, it is of unlimited duration. State v. Skorvanek, 9th Dist. Lorain No. 08CA009399, 2009-
Ohio-3924, ¶ 18.
{¶25} In the present case, Krzemieniewski waived his speedy trial right on multiple
occasions. Krzemieniewski’s counsel filed written waivers on April 18, May 10, and July 19,
2013. None of the waivers listed a specific time period; thus, they were of unlimited duration.
Krzemieniewski did not file an objection and demand for trial during the time that he awaited a
ruling on his motion to suppress. While not condoning any undue delay in ruling on motions, we
cannot say that this “one-judge court” erred by relying on Krzemieniewski’s multiple time
2
Arrizola did not establish a bright-line rule, but found the determination depends on the
circumstances of each case, including the complexity of the facts, the difficulty of the legal
issues presented, and the demands on the time and schedule of the trial court judge. Id. at 76.
9
waivers when prioritizing his docket. See O’Brien at 9-10. We also note that, although it was
after the trial court denied the motions to suppress and dismiss, Krzemieniewski and his counsel
signed a pretrial agreement reiterating that the “defendant waives all speedy trial rights.”
{¶26} Krzemieniewski’s second assignment of error is overruled.
III
{¶27} Krzemieniewski’s assignments of error are overruled. The judgment of the
Medina Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal
Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CRAIG R. BALDWIN
FOR THE COURT
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HENSAL, P. J.
SCHAFER, J.
CONCUR.
(Baldwin, J., of the Fifth District Court of Appeals, sitting by assignment.)
APPEARANCES:
MICHAEL E. STEPANIK and JACK W. BRADLEY, Attorneys at Law, for Appellant.
J. MATTHEW LANIER, Attorney at Law, for Appellee.