[Cite as State v. Harlan, 2011-Ohio-6884.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. William B. Hoffman, P.J.
                       Plaintiff-Appellee      :      Hon. Sheila G. Farmer, J.
                                               :      Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :      Case No. 2011 CA 0013
JESSICA HARLAN                                 :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Fairfield County Municipal
                                                   Court Case No. 10 TRC 8057


JUDGMENT:                                          AFFIRMED

DATE OF JUDGMENT ENTRY:                            December 28, 2011


APPEARANCES:

For Plaintiff-Appellee:                               For Defendant-Appellant:

TERRE L. VANDERVOORT                                  SHAWN R. DOMINY
Lancaster City Prosecutor                             3837 Attucks Drive
STEPHANIE E. HALL                                     Powell, Ohio 43065
Assistant City Prosecutor
123 East Chestnut Street
P.O. Box 1008
Lancaster, Ohio 43130
[Cite as State v. Harlan, 2011-Ohio-6884.]


Delaney, J.

         {¶1}    Defendant-Appellant Jessica Harlan appeals her conviction and sentence

for operating a motor vehicle while under the influence of alcohol.

         {¶2}    On July 19, 2010, Appellant was charged by complaint filed in the Fairfield

County Municipal Court with operating a motor vehicle while under the influence of

alcohol, R.C. 4511.19(A)(1)(a), operating a motor vehicle with a prohibited

concentration of breath alcohol, R.C. 4511.19(A)(1)(d), and a marked lane violation,

R.C. 4511.33.

         {¶3}    Appellant filed a motion to suppress the evidence, including the field

sobriety tests, which the trial court overruled following hearing. Appellant subsequently

entered a no contest plea to the charge of operating a motor vehicle under the influence

of alcohol, R.C. 4511.19(A)(1)(a), and the remaining charges were dismissed. The trial

court found Appellant guilty and sentenced Appellant according to law. The sentence

was stayed pending appeal.

         {¶4}    Appellant timely appealed to this Court and asserts one Assignment of

Error:

         {¶5}    “I. THE TRIAL COURT ERRED BY OVERRULING THE DEFENDANT’S

MOTIONS TO SUPPRESS EVIDENCE.                   THE HORIZONTAL GAZE NYSTAGMUS

TEST WAS NOT ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH TESTING

STANDARDS, SO IT IS NOT ADMISSIBLE AT TRIAL AND CANNOT SERVE AS

EVIDENCE OF PROBABLE CAUSE.                      WITHOUT THE HORIZONTAL GAZE

NYSTAGMUS TEST, THERE WAS NOT PROBABLE CAUSE TO BELIEVE THE
Fairfield County, Case No. 2011 CA 0013                                               3


DEFENDANT WAS OPERATING A VEHICLE UNDER THE INFLUENCE OF

ALCOHOL.

      {¶6}   The following testimony was taken from the trial court’s hearing on

Appellant’s motion to suppress, which was conducted on November 29, 2010.

      {¶7}   State Trooper Andy Ward testified he was working patrol on July 16, 2010,

at approximately 3:00 a.m., travelling eastbound on US Route 33 in Fairfield County. At

that time, he observed Appellant drive a Jeep Wrangler off the right edge line as she

was traveling in the same direction. He activated his in-car video and then observed

her drive almost completely across the right edge line. He activated his lights and

stopped the vehicle.

      {¶8}   Appellant was the sole occupant of the vehicle and the trooper asked for

license and registration. The trooper asked Appellant out of the vehicle to check her

information and notice Appellant had a crutch. Appellant stated she had sprained her

left ankle. Appellant was placed in the patrol car and Trooper Ward testified he could

smell “a very strong odor” of alcohol coming from Appellant. He asked Appellant if she

had anything to drink that evening. He testified that Appellant said “she’d had a couple

shots and she was, um, coming from Screaming Willie’s, a bar on Brice Road, and she

was going to IHOP, um, to visit a friend that was working here.”

      {¶9}   Because of the strong odor of alcohol, the admitted consumption of

alcohol and the driving he observed, Trooper Ward proceeded to ask Appellant to take

a field sobriety test know as the horizontal gaze nystagmus (HGN) test.
Fairfield County, Case No. 2011 CA 0013                                                   4


       {¶10} Trooper Ward stated he was trained on field sobriety testing, including the

recent 2006 NHTSA Manual, and that on the day in question he conducted himself in

accordance with the training he received. He further described the HGN test as follows:

       {¶11} “TROOPER: “Horizontal gaze nystagmus test is one that we use to

determine whether somebody has had a significant amount of alcohol to drink. What we

do is ask somebody if they can follow a stimulas. What I use is the tip of my pen, hold it

approximately twelve to fifteen inches away from somebody’s nose. First thing we do is

ask if they have eye problems and then, uh, look for equal tracking to see if they can

follow the pen. If they have any, um before equal tracking, then look for a lack of

smooth pursuit, uh, maximum deviation and an onset of nystagmus before a forty-five

degree angle.”

       {¶12} T. at 26-27.

       {¶13} In regards to smooth pursuit, Trooper Ward testified on direct examination

as follows:

       {¶14} “TROOPER: What I do is take the tip of my pen and then move it out for

two seconds out to the left eye first, to my right, uh, look for any jerking of that eye, go

back to the nose, go out to the left again, look for any jerking of the eye. And then do

the right eye the same way, um go out for two seconds, go back to the nose and then

do it once again, repeat the procedure, then go back to the nose.”

       {¶15} T. at 32.

       {¶16} He detected the lack of smooth pursuit in both eyes and counted that as

two clues. He next performed the maximum deviation part of the HGN test, and testified

he administered the test as follows:
Fairfield County, Case No. 2011 CA 0013                                             5


        {¶17} “TROOPER: Uh, move the pen out to, start with the left eye again, out to

the left and to my right and bury the eye, um, so there’s no white in the eye for

approximately four seconds.

        {¶18} “PROSECUTOR: Okay.

        {¶19} “TROOPER: And look for any jerking of the eye while it’s at maximum

deviation.

        {¶20} “PROSECUTOR: And you do the procedure on the right eye then?

        {¶21} “TROOPER: Then do the right eye, yes, twice.

        {¶22} “PROSECUTOR: Okay. Did you detect distinct nystagmus at maximum

deviation in Ms. Harlan’s eyes?

        {¶23} “TROOPER: For both eyes, yes.

        {¶24} “PROSECUTOR: Okay. What was the next part of the test that you

administered on Ms. Harlan then?

        {¶25} “TROOPER: Onset of nystagmus before a forty-five degree angle.

        {¶26} PROSECUTOR: And exactly how do you administer that test, Trooper

Ward?

        {¶27} “TROOPER: Um, start 12 to 15 inches away from the subject’s nose.

Move the pen out for approximately four seconds and look for any nystagmus before it

reaches a 45 degree angle.

        {¶28} “PROSECUTOR: And how do you tell where a 45 degree angle is?

        {¶29} “TROOPER: Uh, usually somebody’s should width.

        {¶30} “PROSECUTOR: Okay. Um, do you check the right eye then after that?

        {¶31} “TROOPER: Absolutely.
Fairfield County, Case No. 2011 CA 0013                                                  6


       {¶32} “PROSECUTOR: And do you repeat that test, too?

       {¶33} “TROOPER: Yes.

       {¶34} “PROSECUTOR: Okay. Um, did you notice onset of nystagmus prior to 45

degrees in defendant’s eyes?

       {¶35} “TROOPER: I did.

       {¶36} “PROSECUTOR: Which eye?

       {¶37} “TROOPER: “Both.”

       {¶38} T. at 33-35

       {¶39} The trooper testified Appellant demonstrated six of the possible six clues

of intoxication on the HGN tests. The trooper did not perform the walk-and-turn or the

one-leg-stand test due to Appellant’s ankle injury.

       {¶40} Based on the HGN test and his observations, Trooper Ward placed

Appellant under arrest for operating a motor vehicle under the influence of alcohol. T. at

58. Appellant later submitted to a breath test at the patrol post, which indicated a .134

breath-alcohol concentration.

       {¶41} On cross-examination, Trooper reconfirmed the manner in which he

conducted the HGN test:

       {¶42} “TROOPER: Um, lack of smooth pursuit, like I said, just go a little bit

above eye level, use the tip of my pen, just have them watch the stimulus. Uh, move it

out to their left eye for two seconds, then go back to their nose, move it back to the left

eye again for two seconds. And then, you have to repeat the procedure for the first time

you do it. You have to do it twice in the eye and then do it on the right eye twice doing

the same thing.
Fairfield County, Case No. 2011 CA 0013                                                 7


         {¶43} “DEFENSE COUNSEL: So you did two passes for her left eye?

         {¶44} “TROOPER: Yes.

         {¶45} “DEFENSE COUNSEL: And then two passes for her right eye?

         {¶46} “TROOPER: Yes, sir.

         {¶47} * * *

         {¶48} “DEFENSE COUNSEL: On the maximum deviation part of the test, did

you also use that procedure where you check her left eye twice and then her right eye?

         {¶49} “TROOPER: Checked her left eye twice and then her right eye. Yes, sir.

         {¶50} “DEFENSE COUNSEL: And is the same true of the check for onset prior

to 45?

         {¶51} “TROOPER: Yes, sir.”

         {¶52} T. at 67-68.

         {¶53} At that point, defense counsel presented the 2006 NHTSA manual to the

trooper. Upon reciting verbatim the relevent portion of the NHTSA manual on how to

administer the HGN test, Trooper Ward conceded the manual says the tester is to

perform each part in the left eye and then the right eye and then repeat the procedure.

T. at 70-73.

         {¶54} The State attempted to rehabilitate the trooper at which time he stated he

performed the HGN testing on the left eye, then the right eye and then repeated the

procedure on both eyes.

         {¶55} The trial court found the trooper to be credible and dismissed the

discrepancy in his testimony as a trivial.
Fairfield County, Case No. 2011 CA 0013                                                   8


       {¶56} The results of field sobriety tests are admissible at trial if the State

presents clear and convincing evidence that the officer administered the tests in

substantial compliance with the National Highway Traffic Safety Administration

(“NHTSA”) standards. See, R.C. 4511.19(D)(4)(b).

       {¶57} The burden of proof in a motion to suppress the results of a field sobriety

test in on the State once the defendant has made an issue of the legality of the test.

State v. Ryan, 5th Dist. No. 02-CA-00095, 2003-Ohio-2803. Part of the State’s burden

includes demonstrating what the NHTSA standards are through competent testimony

and/or by introducing the applicable portions of the NHTSA manual. In State v. Boczar,

the Ohio Supreme Court held that HGN test results are admissible in Ohio without

expert testimony, so long as substantial compliance with testing guidelines has been

shown and a proper foundation has been established as to the administering officer’s

ability to administer the test and the officer’s actual technique in administering the test.

State v. Boczar, 113 Ohio St.3d 148, ¶ 28, 2007-Ohio-1251, 863 N.E2d 155.

       {¶58} If field sobriety tests are not administered in substantial compliance with

NHTSA standards or no field sobriety tests are administered, the totality of

circumstances can support a finding of probable cause to arrest. The standard for

determining whether the police have probable cause to arrest an individual for driving

under the influence of alcohol is whether, at the moment of arrest, the police had

sufficient information, derived from a reasonable trustworthy source of facts and

circumstances to cause a prudent person to believe that the suspect was driving under

the influence.   State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000),

citations omitted; State v. Schmitt, 101 Ohio St.3d 79, ¶ 8, 2004-Ohio-37.
Fairfield County, Case No. 2011 CA 0013                                               9


       {¶59} The issue presented to us is whether the Trooper conducted the HGN test

in substantial compliance with the NHTSA manual, and if not, whether the totality of

facts and circumstances can support a finding of probable cause where the HGN test

result is excluded for lack of substantial compliance.

       {¶60} In this case, Trooper Ward testified he did the test in conformity with his

training. Trooper Ward did not testify as to the NHTSA guidelines for HGN testing on

direct examination nor was the manual introduced as evidence. On direct and cross-

examination, he testified the HGN testing was performed on the left eye twice and then

the right eye twice. On redirect, he stated the testing was performed on the left eye,

then the right eye and the procedure was repeated in that manner.            Due to the

confusion in the testimony, we cannot find the State’s evidence was “clear and

convincing” as to the issue of substantial compliance with the NHTSA manual.

       {¶61} While we find the State failed to establish by clear and convincing

evidence the HGN test was administered in substantial compliance with the NHTSA

standards, and therefore that the results of that test would have been inadmissible,

Trooper Ward nevertheless had probable cause to arrest Appellant for OMVI based

upon a totality of the other facts and circumstances.

       {¶62} Here, Appellant committed a significant, as opposed to de minimus,

marked lane violation as shown on the video which were introduced as evidence by

State. In addition, when Trooper Ward made contact with Appellant he noticed that a

strong odor of alcohol emanated from Appellant.          Appellant admitted that she had

consumed at least two shots of alcohol at a bar she had frequented that evening and
Fairfield County, Case No. 2011 CA 0013                                               10


had just left.    These facts, considered together, are clearly sufficient to establish

probable cause to arrest Appellant for driving under the influence of alcohol.

       {¶63} Appellant’s assignment of error is sustain, in part, and overruled, in part.

The judgment of the trial court is affirmed.



By: Delaney, J.

Hoffman, P.J. and

Farmer, J. concur.



                                          HON. PATRICIA A. DELANEY



                                          HON. WILLIAM B. HOFFMAN



                                          HON. SHEILA G. FARMER
[Cite as State v. Harlan, 2011-Ohio-6884.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                       Plaintiff-Appellee      :
                                               :
                                               :
-vs-                                           :    JUDGMENT ENTRY
                                               :
JESSICA HARLAN                                 :
                                               :
                       Defendant-Appellant     :    Case No. 2011 CA 0013
                                               :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Fairfield County Municipal Court is affirmed.        Costs assessed to

Appellant.



                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY


                                                   _________________________________
                                                   HON. WILLIAM B. HOFFMAN


                                                   _________________________________
                                                   HON. SHEILA G. FARMER
