[Cite as State v. Protsman, 2018-Ohio-3927.]


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

STATE OF OHIO                                          C.A. No.       28778

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
NORMAN PROTSMAN                                        AKRON MUNICIPAL COURT
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   16 TRC10132

                                 DECISION AND JOURNAL ENTRY

Dated: September 28, 2018



        CARR, Judge.

        {¶1}     Appellant, Norman Protsman, appeals the judgment of the Akron Municipal

Court. This Court affirms.

                                                  I.

        {¶2}     This matter arises out of a traffic stop that occurred in the early morning hours of

June 5, 2016. Mogadore police initiated a stop of Protsman’s vehicle after observing him swerve

left of center. The officer who initiated the stop observed numerous indications that Protsman

was under the influence of alcohol. The officer also administered a series of field sobriety tests.

Protsman’s performance on those tests further supported the officer’s belief that Protsman was

intoxicated. The officer placed Protsman under arrest and he was taken to the police station

where police administered a breathalyzer test.

        {¶3}     Protsman was charged with operating a vehicle while under the influence of

alcohol, operating a vehicle with a prohibited blood alcohol concentration, and driving left of the
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center line. Protsman filed a motion to suppress, arguing that all of the evidence from the traffic

stop should be suppressed because the officer failed to properly administer the field sobriety

tests. After holding a hearing on the motion to suppress, the trial court issued a journal entry

denying the motion. Thereafter, Protsman pleaded no contest to operating a vehicle with a

prohibited BAC level. The trial court found him guilty of that charge and the remaining two

charges were dismissed. The trial court imposed a fine and a 180-day jail sentence, 177 days of

which were suspended.      The trial court ordered Protsman to serve three days in a driver

intervention program and complete a Summit Link Evaluation and follow any related

recommendations.

       {¶4}    Protsman’s initial attempt to appeal was dismissed by this Court on procedural

grounds. On October 19, 2017, this Court granted Protsman’s motion for a delayed appeal. Now

before this Court, Protsman raises one assignment of error.

                                                II.

                                 ASSIGNMENT OF ERROR

       THIS COURT SHOULD REVERSE THE TRIAL COURT’S DENIAL OF THE
       APPELLANT’S MOTION TO SUPPRESS ALL EVIDENCE, OPINIONS AND
       OBSERVATIONS OF THE LAW ENFORCEMENT OFFICER BECAUSE THE
       FIELD SOBRIETY TESTS WERE NOT CONDUCTED IN SUBSTANTIAL
       COMPLIANCE WITH THE STANDARDS PROMULGATED BY THE
       NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION.

       {¶5}    In his sole assignment of error, Protsman contends that the trial court erred by

denying his motion to suppress. This Court disagrees.

       {¶6}    A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “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.” Id., citing State v. Mills, 62 Ohio
                                                  3


St.3d 357, 366 (1992). Thus, a reviewing court “must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Burnside at ¶ 8. “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.” Id., citing State v.

McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997).

                                            Background

       {¶7}    Officer Johnny Slayton of the Mogadore Police Department was the sole witness

to testify on behalf of the State at the suppression hearing. During his shift on the evening in

question, Officer Slayton received a message from dispatch that a clerk at a nearby Speedway

had observed a potentially impaired driver. The clerk relayed a description of the driver’s

vehicle and noted that the driver had just left the gas station. Officer Slayton noticed the vehicle

as it passed the parking lot where he was sitting in his cruiser. When he began to follow the

vehicle, he noticed the vehicle go left of center. Officer Slayton initiated a traffic stop.

       {¶8}    Upon approaching the vehicle, Officer Slayton smelled a strong odor of alcohol.

Officer Slayton introduced himself to Protsman, who was the driver of the vehicle. Officer

Slayton noticed that Protsman’s eyes were red, bloodshot, and watery. Officer Slayton further

observed that Protsman’s speech was slurred. Officer Slayton returned to his cruiser briefly to

verify Protsman’s information.       The odor of alcohol remained present as Officer Slayton

approached the vehicle a second time. Protsman admitted that he was coming from a concert

where he had been drinking beer.

       {¶9}    Officer Slayton asked Protsman to step out of his vehicle and perform a series of

field sobriety tests. Officer Slayton testified that he received training in the administration of

field sobriety tests that were validated by the National Highway Traffic Safety Administration.
                                               4


Officer Slayton administered the horizontal gaze nystagmus test, the one leg stand test, and the

walk and turn test.    A portion of the body camera video that showed Officer Slayton

administering the tests was introduced at the hearing. During the HGN test, Officer Slayton

observed six clues that suggested Protsman was intoxicated. Protsman subsequently failed both

the one leg stand and walk and turn tests due to the fact that he was unable to perform them.

Officer Slayton testified that he was concerned that Protsman might fall over during the

administration of both tests and that the signs of impairment were “pretty obvious[.]” Officer

Slayton believed that Protsman was operating his vehicle under the influence of alcohol and he

placed Protsman under arrest.    Protsman was taken to the police station where he took a

breathalyzer test.

       {¶10} On cross-examination, Officer Slayton noted that he “[does not] really focus on

the scores” when administering the field sobriety tests. Instead, Officer Slayton explained that

he looks at “the totality” of what has transpired before making a decision on whether to arrest.

Officer Slayton acknowledged, however, that he was aware that field sobriety tests must be

administered in substantial compliance with NHTSA manual in order for the results to be

admissible.

       {¶11} In his motion to suppress, Protsman argued, among other things, that the trial

court should “suppress all evidence, opinions and observations of the officer because the field

sobriety tests were not conducted in substantial compliance with the standards promulgated by

the National Highway Traffic Safety Administration.” During closing arguments, Protsman

argued that his challenge to the field sobriety tests also impacted the admissibility of the
                                                 5


breathalyzer test.1 Protsman reasoned that, absent the field sobriety test results, the officer had

no basis to arrest Protsman and take him to the police station where the breathalyzer test was

administered.

       {¶12} In its January 23, 2018 journal entry denying the motion to suppress, the trial

court stressed that the parties stipulated that the sole issue before the court was whether Officer

Slayton performed the field sobriety tests in substantial compliance with the NHTSA guidelines.

While the trial court acknowledged that portions of Officer Slayton’s testimony relating to the

administration of the HGN test were “questionable[,]” the trial court found that any concerns

were alleviated upon review of the video. The trial court ultimately concluded that the State

provided clear and convincing evidence Officer Slayton performed the tests in substantial

compliance with standardized procedures. Though the trial court repeatedly noted the limited

scope of the hearing, it further stated that in light of its conclusion that the field sobriety tests

were administered lawfully, the breathalyzer argument that Protsman attempted to raise during

closing arguments was also without merit.

                                            Discussion

       {¶13} On appeal, Protsman argues that “all evidence, opinions and observations of the

law enforcement officer” should have been suppressed because the officer failed to conduct the

field sobriety tests in substantial compliance with the standards set forth by the NHTSA.

Protsman emphasizes that Officer Slayton made multiple mistakes while administering the HGN




       1
         Protsman raised numerous issues in his motion to suppress. At the outset of the
suppression hearing, however, the parties stipulated that the sole issue before the trial court was
whether the field sobriety tests were administered in substantial compliance with standardized
procedures.
                                                  6


test and further notes that Officer Slayton failed to inquire whether Protsman was medically

capable of performing the one leg stand and walk and turn tests. In support of this position,

Protsman further contends that the NHTSA standards make clear that anything less than strict

compliance compromises the validity of the testing and prejudices the defendant. Protsman

points to the Supreme Court of Ohio’s decision in State v. Homan, 89 Ohio St.3d 421 (2000) in

support of the proposition that the only meaningful way to ensure field sobriety tests are reliable

is to enforce the strict compliance standard.

       {¶14} Protsman’s strict compliance argument is without merit. The Supreme Court’s

decision in Homan was issued in 2000.           Thereafter, the General Assembly amended R.C.

4511.19(D)(4)(b) to adopt a substantial compliance standard. See State v. Boczar, 113 Ohio

St.3d 148, 2007-Ohio-1251, ¶ 11-15.         The Supreme Court subsequently held that “R.C.

4511.19(D)(4)(b), which provides that the results of field sobriety tests are admissible if the tests

are administered in substantial compliance with testing standards, is constitutional.” Boczar at

syllabus; see also State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, ¶ 11 (“[T]he results

of the field sobriety tests are not admissible at trial unless the state shows by clear and

convincing evidence that the officer administered the test in substantial compliance with NHTSA

guidelines.”). It follows that Officer Slayton was not required to administer the field sobriety

tests in strict compliance with standardized procedures in order for the results to be admissible.

       {¶15} Moreover, even assuming arguendo that there are questions surrounding whether

the field sobriety tests in this case were administered in substantial compliance with the NHTSA

standards, Protsman has not demonstrated that he was prejudiced. Contrary to Protsman’s

position on appeal, an officer’s failure to administer the field sobriety tests in substantial

compliance with the NHTSA standards does not mandate that “all evidence” from the traffic stop
                                                 7


must be suppressed. See State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 11. Instead, in

cases where courts are faced with the question of whether a police officer has probable cause to

arrest an individual for operating a vehicle while under the influence, the totality of the

circumstances can support a finding of probable cause to arrest even where field sobriety test

results must be excluded. State v. Washington, 9th Dist. Lorain No. 11CA010042, 2012-Ohio-

1391, ¶ 10, citing Homan at 427. Officer Slayton testified at the suppression hearing that his

decision to arrest was based on the totality of the circumstances. In this case, a gas station clerk

informed police that Protsman might be driving while impaired. Soon thereafter, Officer Slayton

observed Protsman drive left of center. During the course of the ensuing traffic stop, Officer

Slayton smelled the strong odor of alcohol coming from Protsman’s vehicle and Protsman

admitted that he had been drinking at a concert.        Protsman slurred his speech during his

conversation with Officer Slayton. The officer further observed that Protsman’s eyes were red,

bloodshot, and watery.     Officer Slayton noticed that Protsman was stumbling during the

administration of the walk-and-turn and one-leg-stand tests. See Schmitt at ¶ 15 (noting that an

officer may testify regarding his lay observations made during the administration of the non-

scientific field sobriety tests, regardless of whether the test results are deemed admissible).

Thus, even setting aside the field sobriety test results, a consideration of the totality of the

circumstances supports the conclusion that probable cause existed to place Protsman under arrest

for operating a vehicle while under the influence.

       {¶16} The assignment of error is overruled.

                                                III.

       {¶17} Protsman’s assignment of error is overruled.           The judgment of the Akron

Municipal Court is affirmed.
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                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

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

Court, County of Summit, 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.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT



SCHAFER, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

JONATHAN T. SINN, Attorney at Law, for Appellant.

EVE V. BELFANCE, Director of Law, GERTRUDE E. WILMS, Chief Prosecutor, and BRIAN
D. BREMER, Assistant Director of Law, for Appellee.
