[Cite as State v. Nethers, 2012-Ohio-5198.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Sheila G. Farmer, J.
-vs-
                                                  Case No. 12-CA-30
JERRY NETHERS

        Defendant-Appellant                       OPINION

                                                  NUNC PRO TUNC



CHARACTER OF PROCEEDING:                       Appeal from the Licking County Municipal
                                               Court, Case No. 2011-TRC-09446


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         November 5, 2012


APPEARANCES:


For Defendant-Appellant                        For Plaintiff-Appellee


ROBERT E. CALESARIC                            MARK D. GARDNER
35 South Park Place, Suite 150                 Hebron Prosecutor
Newark, Ohio 43055                             23 South Park Place, Ste. 208
                                               Newark, Ohio 43055
Licking County, Case No. 12-CA-30                                                         2

Hoffman, J.


       {¶1}      Defendant-appellant Jerry Nethers appeals the February 21, 2012

Judgment Entry entered by the Licking County Municipal Court. Plaintiff-appellee is the

state of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}      On May 29, 2011, Appellant was stopped in his motor vehicle for

committing a marked lanes violation. Upon approaching Appellant, the arresting officer

noticed an odor of alcohol on Appellant. When asked, Appellant admitted to consuming

two glasses of wine prior to driving. The officer also noticed Appellant had blood shot

eyes, and had difficulty retrieving his identification and insurance documentation.

       {¶3}      Due to his observations, the officer requested Appellant to perform field

sobriety tests.     Due to a recent hip injury, Appellant performed a non-standardized

procedure in which he touched his fingers to his thumb one way, then the other.

Appellant could not perform the test to the officer's satisfaction. As a result, the officer

asked Appellant if he would agree to a breath test. Appellant consented, and was

transported to the Hebron Police Department.         At the police department, Appellant

tested a .126 on the BAC DataMaster.

       {¶4}      On October 13, 2011, Appellant filed a motion to suppress the field

sobriety tests, his arrest for lack of probable cause, and the BAC DataMaster results.

The trial court excluded the field sobriety tests because the State failed to establish the

testing standard and because the officer had not administered the tests in substantial

compliance with the NHTSA manual.
Licking County, Case No. 12-CA-30                                                         3


       {¶5}   Officer Shanaberg, the officer who performs the calibration checks for the

BAC DataMaster machine, testified the specific machine on which Appellant was tested

was printing incorrect dates and times for a period of four to six weeks prior to

Appellant's test. However, he was not the officer who conducted Appellant's test.

       {¶6}   On March 14, 2012, Appellant entered pleas of no contest to the charges

of operating a vehicle while under the influence, in violation of R.C. 4511.19(A)(1)(a);

operating a vehicle with a prohibited level of alcohol in his breath over .08 but under .17,

in violation of R.C. 4511.19(A)(1)(d), and a marked lanes violation, pursuant to R.C.

4511.33.

       {¶7}   Appellant now appeals, assigning as error:

       {¶8}   “I. APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT

OFFICER MARTIN HAD PROBABLE CAUSE TO ARREST APPELLANT.

       {¶9}   “II. APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT

THE BREATH MACHINE WAS IN SUBSTANTIAL COMPLIANCE.”

                                               I, II.

       {¶10} Appellant's assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

       {¶11} There are three methods of challenging a trial court's ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court's findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (1991). Second, an appellant may argue the trial court failed to apply
Licking County, Case No. 12-CA-30                                                          4


the appropriate test or correct law to the findings of fact. In that case, an appellate court

can reverse the trial court for committing an error of law. See, Williams, supra. Finally,

an appellant may argue the trial court has incorrectly decided the ultimate or final issues

raised in a motion to suppress. When reviewing this type of claim, an appellate court

must independently determine, without deference to the trial court's conclusion, whether

the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio

App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

       {¶12} Appellant maintains the trial court erred in denying his motion to suppress,

and in finding the officer had probable cause to arrest him. Appellant further asserts the

State failed to demonstrate substantial compliance with the ODH regulations governing

the BAC DataMaster results. Appellant maintains the State failed to introduce evidence

the officer checked and used the appropriate hand held radio or whether the solution

utilized was refrigerated and stored properly.      As a result, the State did not prove

substantial compliance.

       {¶13} Appellant further asserts the Ohio Administrative Code Section 3701-53-

09(D) prohibited Officer Martin, who administered the test and has an operator access

card for the Intoxilyzer 8000, from using the BAC DataMaster test. Appellant maintains

pursuant to the code, the officer could only perform those tests for which he holds an

individual permit. Only one breath testing instrument requires an operator access card,

the Intoxilyzer 8000.     Officer Martin had a Senior Operator's Permit to administer

chemical breath tests using the BAC DataMaster, and had also been issued an operator

access card for the Intoxilyzer 8000.
Licking County, Case No. 12-CA-30                                                         5

       {¶14} In State v. Hudepohl, 2011-Ohio-6917, the court considered the issue

raised herein, determining the argument led to absurd results, we agree. Therein, a

police officer held both a senior operator permit for one type of blood-alcohol breath

testing instrument and an operator access card for a second type of breath testing

instrument. The court held merely holding an operator access card for a second type of

instrument did not prohibit the officer from operating the first type of instrument pursuant

to his senior operator permit.

       {¶15} In this case, the trial court heard testimony from two Hebron police officers

regarding the BAC DataMaster at issue. Evidence was presented to demonstrate the

machine was calibrated prior to Appellant’s test and after; the calibration solution was

still within the required use period of time; the calibration solution was properly

refrigerated when not in use; the solution had been certified for use by the Department

of Health, no RFI was present at any time during the test; and the officers both held

valid Senior Officer permits.

       {¶16} In addition, Appellant admitted to the lane violation, but claims mistake as

the road had recently changed. When evaluating probable cause to arrest for OVI, the

totality of the facts and circumstances can support a finding of probable cause to arrest

even when no field sobriety tests are administered.           In this matter, the record

demonstrates Appellant, a seventy-one year old male, admitted to consuming two

glasses of wine prior to driving. The officer detected an odor of alcohol on Appellant,

observed bloodshot eyes, and Appellant had difficulty finding the requested

identification. The BAC DataMaster results demonstrate Appellant was over the legal

limit. Considering the totality of the circumstances, we find the trial court did not err in
Licking County, Case No. 12-CA-30                                                 6


denying Appellant’s motion to suppress the BAC DataMaster results and in finding the

officer had probable cause to arrest Appellant for OVI herein.

      {¶17} Appellant's assigned errors are overruled.

      {¶18} The judgment of the Licking County Municipal Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER
Licking County, Case No. 12-CA-30                                                   7


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
JERRY NETHERS                              :
                                           :
       Defendant-Appellant                 :         Case No. 12-CA-30


       For the reasons stated in our accompanying Opinion, the judgment of the Licking

County Municipal Court is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER
