[Cite as State v. Martin, 2014-Ohio-2948.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 14-CA-5
SHAYNE MARTIN                                  :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Municipal Court, Case No.13TRC08832



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            June 30, 2014



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

TRICIA MOORE                                       ANDREW SANDERSON
Assistant Law Director                             Burkett & Sanderson, Inc.
40 West Main Street                                73 North Sixth Street
Newark, OH 43055                                   Newark, OH 43055
[Cite as State v. Martin, 2014-Ohio-2948.]


Gwin, P.J.

         {¶1} Defendant-appellant Shayne Martin [“Martin”] appeals the November 1,

2013 Judgment Entry of the Licking County Municipal Court denying his motion to

suppress evidence. Plaintiff-appellee is the State of Ohio.

                                             Facts and Procedural History

         {¶2} On September 1, 2013, Martin was arrested and charged with driving

under the influence and related traffic offenses. Martin was arraigned on the charges

contained in the complaint on September 4, 2013, and entered a plea of not guilty to the

offenses charged. On September 23, 2013, two motions to suppress evidence were

filed on behalf of Martin. An oral hearing was held on the motions on October 25, 2013.

The following facts were presented during the hearing on Martin’s motions to suppress.

         {¶3} On September 13, 2013, Rebecca Black heard a noise in front of her

house but did not notice anything unusual at the time. (ST. at 15). After noticing that

traffic was beginning to back up, Ms. Black’s son and daughter went to investigate. (ST.

at 15-16). Upon observing an overturned vehicle, Ms. Black called 9-1-1 at 8:17 a.m.

(Id. at 16). Ms. Black estimated she had heard the noise approximately 10 minutes

before she placed the call to 9-1-1-. (Id.).

         {¶4}     Ohio State Highway Patrol Trooper Schneider was dispatched to an

accident scene on County Road 668 located in Hopewell Township in Licking County,

Ohio. Upon arrival the trooper noticed a Toyota truck overturned and in a ditch. The

trooper determined the vehicle had been traveling south bound on County Road 668,

left the right side of the road and overcorrected causing the vehicle to travel to the left

side of the road and back again to the right side where it overturned. Trooper Schneider
Licking County, Case No. 14-CA-5                                                          3


testified that he made contact with the driver and at first did not notice any odor of an

alcoholic beverage because of the smell of gasoline, which apparently had escaped

from the wrecked Toyota. Trooper Schneider did notice that Martin’s eyes were

bloodshot and glassy and when he asked Martin if he had consumed any alcohol Martin

indicated he had consumed approximately 12 beers and several mixed drinks. (ST. at

12). Martin told the trooper he had stopped drinking at approximately 3:00 or 4:00 a.m.

       {¶5} Martin was taken to the trooper's cruiser and once inside, the trooper

noticed a moderate odor of an alcoholic beverage emanating from Martin. He also

noticed that Martin’s speech was slurred and that his face was flushed; however, the

trooper conceded upon cross-examination that he did not include either of those

observations in his report. (ST. at 22-24).

       {¶6} Trooper Schneider then administered the standardized field sobriety tests

[“FST”]. Under cross-examination, the trooper conceded that Martin did not fail the one

leg stand test and that he had given Martin incorrect instructions on the walk and turn

test. The horizontal gaze nystagmus test also was not done in substantial compliance

with the so-called National Highway Traffic Safety Administration [“NHTSA”] guidelines.

       {¶7} The trooper testified that his arrest was based upon, in addition to the field

sobriety tests, the operation of the vehicle which led to the accident, Martin’s bloodshot

and glassy eyes, the odor of an alcoholic beverage, Martin’s slurred speech and

Martin’s admission to the consumption of alcohol.

       {¶8} After considering the evidence presented and the arguments of counsel,

the trial court denied the motions to suppress by judgment entry filed November 1,

2013. On January 9, 2014, Martin entered pleas of no contest to the charges contained
Licking County, Case No. 14-CA-5                                                        4


in the complaint. The trial court accepted the changes of plea and entered guilty

findings. Martin was then sentenced by the trial court to a period of incarceration and

related fines.

                                      Assignment of Error

        {¶9} Martin raises one assignment of error,

        {¶10} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING

THE DEFENDANT-APPELLANT'S MOTION TO SUPPRESS EVIDENCE. "

                                            Analysis

        {¶11} Martin contends that the trial court erred by overruling his motions to

suppress. Specifically Martin argues that the trial court improperly determined that the

trooper had probable cause for the warrantless arrest of Martin and that the breath

sample was taken beyond the time limits mandated by statute.

        {¶12} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf, 111

Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist. 1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law
Licking County, Case No. 14-CA-5                                                           5

whether the trial court met the applicable legal standard. See Burnside, supra, citing

State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,

generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That

is, the application of the law to the trial court's findings of fact is subject to a de novo

standard of review. Ornelas, supra. Moreover, due weight should be given “to

inferences drawn from those facts by resident judges and local law enforcement

officers.” Ornelas, supra at 698, 116 S.Ct. at 1663.

                                       A. Warrantless arrest

        {¶13} A warrantless arrest is constitutionally valid if: “[a]t the moment the arrest

was made, the officers had probable cause to make it-whether at that moment the facts

and circumstances within their knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent man in believing that the * * * [individual]

had committed or was committing an offense.” State v. Heston, 29 Ohio St.2d 152, 155–

156, 280 N.E.2d 376(1972), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13

L.Ed.2d 142(1964). “The principal components of a determination of reasonable

suspicion or probable cause will be the events which occurred leading up to the stop or

search, and then the decision whether these historical facts, viewed from the standpoint

of an objectively reasonable police officer, amount to reasonable suspicion or to

probable cause.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661–

1162(1996). A police officer may draw inferences based on his own experience in

deciding whether probable cause exists. See, e.g., United States v. Ortiz, 422 U.S. 891,

897, 95 S.Ct. 2585, 2589(1975).
Licking County, Case No. 14-CA-5                                                       6


       {¶14} While field sobriety tests must be administered in substantial compliance

with standardized procedures, probable cause to arrest does not necessarily have to be

based, in whole or in part, upon a suspect's poor performance on one or more of these

tests. The totality of the facts and circumstances can support a finding of probable

cause to arrest even where no field sobriety tests were administered. State v. Homan,

89 Ohio St.3d 421, 732 N.E.2d 952(2000), superseded by statute on other grounds as

stated in State v. Boczar, 113 Ohio St.3d 148, 863 N.E.2d 155, 2007–Ohio–1251. In

Homan, the facts which supported a finding of probable cause were: red and glassy

eyes, breath which smelled of alcohol, erratic driving and an admission that the suspect

had consumed alcohol. In State v. Lominack, 5th Dist. Stark No. 2012CA00213, 2013-

Ohio-2678, this Court observed,

             The case law is in agreement that probable cause to arrest may

      exist, even without field sobriety tests results, if supported by such factors

      as: evidence that the defendant caused an automobile accident; a strong

      odor of alcohol emanating from the defendant; an admission by the

      defendant that he or she was recently drinking alcohol; and other indicia of

      intoxication, such as red eyes, slurred speech, and difficulty walking.

      Oregon v. Szakovits, 32 Ohio St.2d 271, 291 N.E.2d 742(1972); Fairfield

      v. Regner, 23 Ohio App.3d 79, 84, 491 N.E.2d 333(12th Dist.1985); State

      v. Bernard, 20 Ohio App.3d 375, 376, 485 N.E.2d 783(9th Dist.1985);

      Westlake v. Vilfroy, 11 Ohio App.3d 26, 27, 462 N.E.2d 1241(8th

      Dist.1983); State v. Judy, 5th Dist. No.2007–CAC–120069, 2008–Ohio–

      4520, ¶ 27. Further, the Ohio Supreme Court has made clear that the
Licking County, Case No. 14-CA-5                                                        7


        officer may testify regarding observations made during a defendant's

        performance of standardized field sobriety tests even absent proof of

        “strict compliance.” State v. Schmitt (2004), 101 Ohio St.3d 79, 2004–

        Ohio–37, 801 N.E.2d 446, (2004), ¶ 15.

Lominack, ¶ 33.

        {¶15} In the case at bar, the probable cause to arrest Martin for OVI was

supported by the trooper’s observation of glassy eyes, odor of alcohol, admission that

he had been drinking, and the fact that he crashed his vehicle. The judge is in the best

position to determine the credibility of witnesses, and his conclusion in this case is

supported by competent facts. See State v. Burnside, 100 Ohio St.3d 152, 154–55, 797

N.E.2d 71, 74(2003). The fundamental rule that weight of evidence and credibility of

witnesses are primarily for the trier of fact applies to suppression hearings as well as

trials. State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583, 584(1982).

        {¶16} Accordingly, the totality of the evidence, even excluding the FST’s, gave

rise to probable cause to arrest for OVI. Homan at 427, 732 N.E.2d 952. As such, we

find it was not error for the trial court to determine there was probable cause to support

Martin's arrest for OVI.

                                          B. Time limit

        {¶17} In the case at bar, Martin was originally charged with OVI as both a

violation of R.C. 4511.19(A)(1)(a) [“under the influence”] and R.C. 4511.19(A)(1)(h) [“per

se”].
Licking County, Case No. 14-CA-5                                                             8


        {¶18} R.C. 4511.19(A)(1) states in pertinent part: “No person shall operate any

vehicle, * * *, if, at the time of the operation, any of the following apply: (a) The person is

under the influence of alcohol, a drug of abuse, or a combination of them.”

        {¶19} R.C. 4511.19(D)(1)(b) provides,

              In any criminal prosecution or juvenile court proceeding for a

        violation of division (A) or (B) of this section or for an equivalent offense

        that is vehicle-related, the court may admit evidence on the concentration

        of alcohol, drugs of abuse, controlled substances, metabolites of a

        controlled substance, or a combination of them in the defendant's whole

        blood, blood serum or plasma, breath, urine, or other bodily substance at

        the time of the alleged violation as shown by chemical analysis of the

        substance withdrawn within three hours of the time of the alleged

        violation. The three-hour time limit specified in this division regarding the

        admission of evidence does not extend or affect the two-hour time limit

        specified in division (A) of section 4511.192 of the Revised Code as the

        maximum period of time during which a person may consent to a

        chemical test or tests as described in that section. The court may admit

        evidence on the concentration of alcohol, drugs of abuse, or a

        combination of them as described in this division when a person submits

        to a blood, breath, urine, or other bodily substance test at the request of a

        law enforcement officer under section 4511.191 of the Revised Code or a

        blood or urine sample is obtained pursuant to a search warrant.

        {¶20} R.C. 4511.19(C) mandates that,
Licking County, Case No. 14-CA-5                                                        9


              (C) In any proceeding arising out of one incident, a person may be

        charged with a violation of division (A)(1)(a) or (A)(2) and a violation of

        division (B)(1), (2), or (3) of this section, but the person may not be

        convicted of more than one violation of these divisions.(Emphasis

        added).

        {¶21} In the case at bar, “we first noted that in 1983, the General Assembly had

amended R.C. 4511.19 to make ‘it illegal to operate a vehicle not only while under the

influence of alcohol, but also with a proscribed level of alcohol content in one's blood,

breath, or urine.’ Lucas, 40 Ohio St.3d at 103, 532 N.E.2d 130. The effect of the

General Assembly's amendment was to divide R.C. 4511.19 into two classification of

offenses: the offense of operating a vehicle while under the influence, and the “per se”

offense.” State v. Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, 875 N.E.2d 46, ¶10

[footnote omitted].

        {¶22} Per se offenses make the blood-alcohol content an element of the offense.

The trier of fact must find only “that the defendant operated a vehicle * * * and that the

defendant's chemical test reading was at the proscribed level.” Newark v. Lucas, 40

Ohio St.3d 100, 103, 532 N.E.2d 130(1988). In contrast, for “driving under the influence”

in violation of R.C. 4511.(A)(1)(a),

              The amount of alcohol found as a result of the chemical testing of

       bodily substances is only of secondary interest. See Taylor, Drunk Driving

       Defense (2 Ed.1986) 394, Section 6.0.1. The defendant's ability to

       perceive, make judgments, coordinate movements, and safely operate a

       vehicle is at issue in the prosecution of a defendant under such section. It
Licking County, Case No. 14-CA-5                                                                      10


        is the behavior of the defendant which is the crucial issue... The test

        results, if probative, are merely considered in addition to all other evidence

        of impaired driving in a prosecution for this offense.

Lucas, 40 Ohio St.3d at 104, 532 N.E.2d 130.

            {¶23} In Lucas, the Ohio Supreme Court noted that a “per se” violation is

committed where the amount of alcohol in an individual's bodily substances exceeds the

proscribed statutory amount. Id. at 103, 532 N.E.2d 130. The court stressed that

accuracy is critical and that allowing admission of chemical analyses of substances

withdrawn after the two-hour limit1 would cause “confusing, unreliable, and inconsistent

verdicts.” Id. at 104, 532 N.E.2d 130. Accordingly, the court held that in such situations,

the results may be admitted in evidence “only if the bodily substance is withdrawn within

two [currently three] hours of the time of the alleged violation.” Id.

            {¶24} In the present case, Martin was charged with OVI based on a violation of

R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(h). The trial court chose to sentence

Martin under R.C. 4511.19(A)(1)(h)-a prohibited concentration charge-rather than R.C.

4511.19(A)(1)(a) for driving under the influence. Because Martin’s conviction and

sentence was based on a per se violation of the statute, his blood-alcohol test results

were admissible only if the blood sample was taken within the three-hour period set

forth in R.C. 4511.19(D). See, R.C. 4511.19(C); State v. Ross, 2nd Dist. Greene No. 06-

CA-0148, 2008-Ohio-1758, ¶26.



        1
           The General Assembly amended certain portions of that statute in 2006 to allow admissibility of
testing obtained within three hours of the alleged violation, but former R.C. 4511.19(D)(1) was otherwise
similar to the current version. State v. Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, 875 N.E.2d 46. The
Court in Lucas reviewed the former statutes two-hour window of admissibility.
Licking County, Case No. 14-CA-5                                                        11


        {¶25} In the case at bar, Trooper Schneider testified that he spoke with the 9-1-1

caller who reported the crash and she estimated the crash to be at 8:07 a.m. The test

was administered at 10:27 a.m. and thus within three hours of operation. Miller argues

that the statements of the witness are hearsay and should not be admitted or

considered by the trial court. However, judicial officials at suppression hearings may rely

on hearsay and other evidence to determine whether alcohol test results were obtained

in compliance with methods approved by the Director of Health, even though that

evidence may not be admissible at trial. State v. Edwards, 107 Ohio St.3d 169, 2005-

Ohio-6180, 837 N.E.2d 752, paragraph 2 of the syllabus. [Citing Evid.R. 101(C) (1)].

        {¶26} Accordingly, the record contains competent, credible evidence that the

test was conducted in accordance with statutory requirements and the results were

therefore admissible to establish a violation of R.C. 4511.19(A)(1)(h). As a result, the

trial court did not err in denying Martin’s motions to suppress.

        {¶27} Martin’s sole assignment of error is overruled.
Licking County, Case No. 14-CA-5                                                    12


       {¶28} The judgment of the Municipal Court of Licking County, Ohio is affirmed.



By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur
