[Cite as State v. Poudel, 2023-Ohio-995.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2022 CA 00071 DEVI POUDEL Defendant-Appellant OPINION CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 21-CR-00565 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: March 24, 2023 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JENNY WELLS STEPHEN T. WOLFE Licking County Prosecutor Wolfe Law Group, LLC 1350 W. 5th Avenue – Suite #330 ROBERT N. ABDALLA Columbus, Ohio 43212 Assistant Prosecuting Attorney 20 S. Second Street Newark, Ohio 43055 Licking County, Case No. 2022CA00071 2 Hoffman, P.J. {¶1} Defendant-appellant Devi Poudel appeals the judgment entered by the Licking County Common Pleas Court convicting him following his pleas of no contest to two counts of aggravated vehicular assault (R.C. 2903.08(A)(1)(a), R.C. 2903.08(A)(2)(b)) and sentencing him to twenty-four months incarceration. Plaintiff- appellee is the state of Ohio. STATEMENT OF THE FACTS AND CASE {¶2} On September 19, 2021, Trooper Zack Drake of the Ohio State Highway Patrol was dispatched to the scene of an accident in Licking County involving an automobile and a motorcycle. The Trooper was dispatched around 9:30 p.m., while the accident occurred around 8:30 p.m. {¶3} The trooper saw a motorcycle in the roadway, and a car off to the side. Appellant, who is a native of Nepal, was in the driver’s seat of the car. The trooper had experience with Nepali immigrants. Appellant told the trooper he had been in the United States for eleven years, and was a citizen. {¶4} Trooper Drake told Appellant he wanted to talk to him about the accident. The trooper detected a strong odor of alcohol coming from Appellant, and his eyes were bloodshot and glassy. Appellant stated he had two Corona beers to drink. Trooper Drake asked Appellant to walk to the front of the cruiser, where the dash camera would capture the encounter. The trooper conducted field sobriety tests on Appellant. Trooper Drake detected six of six clues on the horizontal gaze nystagmus test, five of eight clues on the walk and turn test, and three of four clues on the one-leg stand test. Appellant did not express difficulty understanding the officer, and responded appropriately to the instructions for the tests and to the officer’s questions. Licking County, Case No. 2022CA00071 3 {¶5} After conducting field sobriety tests, Trooper Drake placed Appellant under arrest, provided Appellant with Miranda warnings, and read Appellant the Bureau of Motor Vehicles Form 2255 regarding test refusal. Appellant agreed to a breathalyzer test. Trooper Drake transported Appellant to the Granville Highway Patrol post, where the breath test was administered, and Appellant gave a statement. The results of the breathalyzer test were .184. {¶6} Appellant was indicted by the Licking County Grand Jury with two counts of aggravated vehicular assault. Appellant filed a motion to suppress the results of the field sobriety tests and the breath …
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