A Uniontown police officer had no legitimate reason for pulling over a motorist who was yelling and flailing his arm out of the driver side window, and therefore could not order him to perform a field sobriety test, the Fifth District Court of Appeals ruled.

The district court reversed and remanded the conviction of Matthew J. Barzacchini who was charged in November 2013 with operating a motor vehicle while intoxicated and committing a marked lanes violation. Barzacchini appealed the Canton Municipal Court’s denial of his motion to suppress the results of his sobriety test arguing there was no reasonable articulable suspicion of criminal activity or any lawful cause to stop his vehicle.

Uniontown Officer Joshua Pirogowicz testified that he saw Barzacchini making exaggerated arm movements and heard loud noises, yelling and screaming as Barzacchini passed him on Cleveland Avenue. The incident occurred just after midnight and Pirogowicz said he could not see into the car, but was concerned an assault could be occurring. He said he followed Barzacchini and did not observe any indication of impaired driving or speeding. The officer turned on his emergency lights to initiate a traffic stop and that is when Barzacchini committed a marked lane violation, but did not stop. He kept driving until Pirogowicz turned on his siren.

Pirogowicz said Barzacchini smelled of alcohol and slurred his speech, but explained that there was no assault going on, but rather he was arguing with his wife on the phone. Even after confirming his explanation for his behavior, Pirogowicz made Barzacchini perform a field sobriety test and arrested him for OVI. When the court denied his motion to suppress the evidence, Barzacchini pleaded no contest to the charges.

Writing for the court Judge W. Scott Gwin said the Ohio Supreme Court has emphasized that probable cause is not required to make a traffic stop, but the standard is reasonable and articulable suspicion. An exception to making a stop without reasonable and articulable suspicion is a community caretaking exception. Citing State v. Dunn, 131 Ohio St. 3d 2012-Ohio-1008, 964 N.E. 2d 1037 syllabus, Gwin said the Ohio Supreme Court  “allows a law enforcement officer with objectively reasonable grounds to believe that there is an immediate need for his or her assistance to protect life or prevent serious injury to effect a community-caretaking/emergency-aid stop.”

The court said from what Pirogowicz could hear and see he would have been justified in approaching the car and making contact with the occupants in a nonintrusive behavior, but absent any sign that an occupant needed assistance, he was not justified in pulling the car over invoking the caretaking exception.  Moreover, in reviewing the video from the officer’s vehicle it did not appear that Barzacchini committed the traffic violation the officer cited him for meaning Pirogowicz did not have articulable and reasonable suspicion that Barzacchini was violating the law.

“Under the circumstances presented in this case, police would be justified in stopping a motor vehicle leaving a sporting event, a concert, a rally or any other activity upon nothing more than one or more occupant’s ruckus behavior,” the court said.

Judges Patricia A. Delaney and Craig R. Baldwin concurred in the ruling.

State v. Barzacchini, 2014-Ohio-3467
Opinion: http://sc.ohio.gov/rod/docs/pdf/5/2014/2014-ohio-3467.pdf
Civil Appeal From: Canton Municipal Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: August 11, 2014

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