[Cite as State v. Spurlock, 2013-Ohio-5369.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       13CA010354

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RUBIN E. SPURLOCK JR.                                 ELYRIA MUNICIPAL COURT
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   2012TRC05785

                                 DECISION AND JOURNAL ENTRY

Dated: December 9, 2013



        HENSAL, Judge.

        {¶1}     Rubin Spurlock appeals a judgment of the Elyria Municipal Court that convicted

him of driving under the influence. For the following reasons, this Court affirms in part and

reverses in part.

                                                 I.

        {¶2}     According to state highway trooper Bryan Holden, he was on patrol on July 13,

2012, around 1:45 a.m. when he saw a car following too closely behind a semi-truck. As he

followed behind the car, it moved from the right lane to the center lane without a turn signal and,

after passing the semi, moved back to the right lane without a turn signal. After Trooper Holden

saw the car also make a marked lanes violation, he initiated a traffic stop.

        {¶3}     Trooper Holden testified that he approached the car on the passenger side and

immediately noticed a strong odor of alcohol when the passenger opened the window. Because

he could not tell whether the odor was coming from the driver, Mr. Spurlock, or the passenger,
                                                  2


he asked Mr. Spurlock to step out of the car. He isolated Mr. Spurlock on the side of the road

and still noticed a moderate odor of alcohol, so he began administering field sobriety tests. He

testified that he saw six clues during the horizontal-gaze nystagmus test, six clues during the

walk-and-turn test, and three clues during the one-leg-stand test. The results indicated to him

that Mr. Spurlock was inebriated. After finishing the tests, he asked Mr. Spurlock if he would

take a portable breath test, but Mr. Spurlock refused. Based on his observations during the stop,

Trooper Holden arrested Mr. Spurlock for operating under the influence and refusing to submit

to the portable breath test. He also cited him for failing to signal turns.

       {¶4}    Mr. Spurlock moved to suppress the results of the sobriety tests, any statements

that he made to law enforcement officers, and Trooper Holden’s observations about him during

the stop. He argued that the trooper did not have a legitimate reason to detain him, did not have

probable cause to arrest him, and that his statements were obtained in violation of his

constitutional rights. Following a hearing on his motion, the municipal court denied it. Mr.

Spurlock subsequently pleaded no contest to a charge of driving under the influence under the

Elyria municipal code. The court sentenced him to 37 days in jail, which it suspended, and

dismissed the other charges. Mr. Spurlock has appealed the denial of his motion to suppress,

assigning two errors.

                                                  II.

                                   ASSIGNMENT OF ERROR I

       THE DENIAL OF DEFENDANT’S MOTION TO SUPPRESS WAS
       IMPROPER AS THE DEFENDANT’S ARREST FOR OVI WAS NOT
       SUPPORTED BY PROBABLE CAUSE AND IN VIOLATION OF THE
       FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION, AND ARTICLE 1, SECTION 14 OF THE CONSTITUTION
       OF THE STATE OF OHIO.
                                                3


       {¶5}     Mr. Spurlock argues that the municipal court incorrectly denied his motion to

suppress. 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 conclusion 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.

       {¶6}     Mr. Spurlock argues that the trial court should have granted his motion to

suppress because Trooper Holden did not have probable cause to arrest him. To determine

whether a police officer had probable cause to arrest an individual for operating under the

influence, we consider whether, under the totality of the facts and circumstances surrounding the

arrest at the moment of arrest, the officer “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),

superceded on other grounds by statute as recognized in State v., Schmitt, 101 Ohio St.3d 79,

2004-Ohio-37.

       {¶7}     Trooper Holden testified that he stopped Mr. Spurlock because he observed him

changing lanes without using a turn signal and committing a marked lanes violation. When he

approached the car, he immediately detected a strong odor of alcohol, so he separated the driver

and passenger to determine the source of the smell. He testified that Mr. Spurlock smelled

moderately of alcohol, so he conducted field sobriety tests.         During the horizontal-gaze

nystagmus test, he observed that Mr. Spurlock’s eyes were bloodshot. During the walk-and-turn

test, Mr. Spurlock failed to follow his directions and “almost walked into traffic.” During the
                                                 4


one-leg-stand test, Mr. Spurlock dropped his foot after only 20 seconds. He also swayed back

and forth and had to throw his arms up to catch himself.

       {¶8}    Mr. Spurlock argues that the field sobriety tests were not done in substantial

compliance with national standards so the fact that he “fail[ed]” the tests is of questionable value.

In Homan, however, the Ohio Supreme Court explained that “[t]he totality of the facts and

circumstances can support a finding of probable cause to arrest even where no field sobriety tests

were administered or where * * * the test results must be excluded for lack of * * * compliance.”

Homan, 89 Ohio St. 3d at 427. In this case, in addition to Trooper Holden’s testimony, the court

had the opportunity to view a video of the traffic stop. That video, however, has not been made

part of the appellate record. “[I]t is the duty of the appellant to ensure that the record on appeal

is complete.” State v. Unik, 9th Dist. Lorain No. 11CA009996, 2012-Ohio-307, ¶ 7, quoting

State v. Daniels, 9th Dist. Lorain No. 08CA009488, 2009-Ohio-1712, ¶ 22. Without a copy of

the video, we “must presume regularity of the proceedings and affirm the decision of the trial

court.” State v. Jones, 9th Dist. Summit. No. 22701, 2006-Ohio-2278, ¶ 39. Mr. Spurlock’s first

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

       THE DENIAL OF DEFENDANT’S MOTION TO SUPPRESS WAS
       IMPROPER AS THE TRIAL COURT’S DETERMINATION THAT ALL
       TESTS WERE DONE FOR THE DETECTION OF OVI WERE DONE IN
       SUBSTANTIAL COMPLIANCE WITH RULES WAS NOT SUPPORTED BY
       EVIDENCE OF ANY ACCEPTABLE STANDARDS OR RULES; THAT
       BEING NEITHER PROFERRED BY THE STATE NOR TAKEN BY
       JUDICIAL NOTICE.

       {¶9}    Mr. Spurlock argues that the trial court should have at least suppressed the results

of the field sobriety tests because there is no evidence that they were performed in compliance
                                                   5


with national standards. Under Revised Code Section 4511.19(D)(4)(b), an officer may testify

concerning the results of a field sobriety test only if:

        [I]t is shown by clear and convincing evidence that the officer administered the
        test in substantial compliance with the testing standards for any reliable, credible,
        and generally accepted field sobriety tests that were in effect at the time the tests
        were administered, including, but not limited to, any testing standards then in
        effect that were set by the national highway traffic safety administration[.]

        {¶10} In State v. Sunday, 9th Dist. Summit No. 22917, 2006-Ohio-2984, this Court

determined that, under Section 4511.19(D)(4)(b), the State has the burden of establishing

substantial compliance. Id. at ¶ 21. In that case, the police officer who stopped Edmund Sunday

testified that he was certified to perform breathalyzer tests and to conduct field sobriety tests, but

he did not testify that he performed any of the tests he administered in substantial compliance

with standardized testing procedures. Id. at ¶ 22. Although he testified that he conducted the

tests in accordance with his training, he did not testify about what guidelines he used or whether

the tests conformed to any standardized testing procedure.          Id.   On cross-examination, he

admitted that he could not recall whether his training utilized National Highway Traffic Safety

Administration (NHTSA) standards. Id. at ¶ 23. At no point during his testimony, did he testify

that he had substantially complied with any specific guidelines. The State also failed to admit

the NHTSA manual. Id. at ¶ 24. This Court, therefore, concluded that the results of the tests

should be suppressed. Id. at ¶ 24-25.

        {¶11} Trooper Holden testified that he was trained “according to the NHTSA manual.”

He also testified that he conducted the horizontal-gaze nystagmus test “the way I was instructed

to do it officer safety-wise * * *.” He did not otherwise testify that he performed any of the field

sobriety tests in accordance with the way he had been trained, in accordance with the NHTSA

manual, or in accordance with some other standardized testing procedure. The State also did not
                                                   6


submit a NHTSA or other standardized testing procedure manual. Accordingly, upon review of

the record, we conclude that there was no competent, credible evidence to support the municipal

court’s finding that “[a]ll tests done for detection of OVI were done in substantial compliance

with rules.”

         {¶12} The State argues that it did not have the burden of demonstrating substantial

compliance in this case because Mr. Spurlock did not set forth an adequate factual basis in his

motion to suppress identifying how he believed Trooper Holden failed to comply with

standardized testing procedures. It notes that Mr. Spurlock did not even mention the NHTSA

manual in his motion. See State v. Codeluppi, 9th Dist. Lorain No. 11CA010133, 2012-Ohio-

5812, ¶ 24-26.

         {¶13} Mr. Spurlock argues, and we agree, that the State forfeited its opportunity to

challenge the adequacy of his motion to suppress by failing to object to it in the municipal court.

“While Crim.R. 47 requires a defendant to state his grounds for a motion to suppress ‘with

particularity,’ the state waives this issue if it is not raised in opposition to a defendant’s motion to

suppress.” State v. O’Neill, 175 Ohio App.3d 402, 2008-Ohio-818, ¶ 33 (6th Dist.); State v.

Mayl, 154 Ohio App.3d 717, 2003-Ohio-5097, ¶ 22 (2d Dist.). In addition, this Court has

recognized that a trial court may allow a defendant to supplement his motion to suppress during

the suppression hearing. State v. Smith, 9th Dist. Summit No. 21069, 2003-Ohio-1306, ¶ 13.

Upon review of the record, we conclude that the State forfeited its right to challenge whether the

motion to suppress contained enough particularity by not raising that issue before the municipal

court.
                                                 7


       {¶14} There was no evidence in the record to support the trial court’s finding that the

field sobriety tests Trooper Holden administered were in compliance with appropriate standards

under Section 4511.19(D)(4)(b). Mr. Spurlock’s second assignment of error is sustained.

                                                III.

       {¶15} The municipal court correctly determined that Mr. Spurlock’s arrest was

supported by probable cause, but it incorrectly denied his motion to suppress the results of the

field sobriety tests. The judgment of the Elyria Municipal Court is affirmed in part and reversed

in part, and this matter is remanded for additional proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Elyria Municipal

Court, County of Lorain, 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.
                                            8


     Costs taxed equally to both parties.




                                                JENNIFER HENSAL
                                                FOR THE COURT



MOORE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

JACK BRADLEY, MALLORY J. HOLMES, and MICHAEL E. STEPANIK, Attorneys at Law,
for Appellant.

SCOTT SERAZIN, MATTHEW A. MISHAK, and MICHELLE D. NEDWICK, Attorneys at
Law, for Appellee.
