[Cite as State v. Yost, 2018-Ohio-2873.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-18-03

        v.

JAY C. YOST,                                               OPINION

        DEFENDANT-APPELLANT.




                     Appeal from Tiffin-Fostoria Municipal Court
                            Trial Court No. TRC 1700750

                                       Judgment Affirmed

                               Date of Decision: July 23, 2018




APPEARANCES:

        Kurt A. Dauterman for Appellant

        Charles R. Hall, Jr. for Appellee
Case No. 13-18-03


SHAW, J.

       {¶1} Defendant-Appellant, Jay Yost, appeals the December 4, 2017

judgment of the Tiffin-Fostoria Municipal Court finding him guilty of OVI, after he

entered a plea of no contest, and sentencing him to ninety days in jail, all suspended

upon his compliance with the terms and conditions of a one-year period of

probation. On appeal, Yost claims that the trial court erred in overruling his motion

to suppress.

                      Relevant Facts and Procedural History

       {¶2} On March 4, 2017, Trooper Jason Fowler was travelling eastbound on

U.S. 224 in Seneca County, at approximately 3:00 a.m., when he observed Yost’s

vehicle travel over the white fog line while driving westbound on the same road.

Trooper Fowler determined that Yost had committed a marked lanes violation and

conducted a traffic stop of Yost’s vehicle.

       {¶3} Upon encountering Yost in his vehicle, Trooper Fowler noticed a strong

odor of marijuana and a moderate odor of alcoholic beverage emitting from the

vehicle.   Trooper Fowler placed Yost in the front seat of his patrol cruiser,

performed a search of Yost’s vehicle, and found a cigarillo in the center console,

but no other contraband or alcoholic beverage. He noticed that Yost had slow

movement, and bloodshot, red, glossy eyes. He also observed raised taste buds and




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a green tint on the back of Yost’s tongue. Trooper Fowler detected a strong odor of

marijuana emitting from Yost’s person while he was seated in the patrol cruiser.

       {¶4} Trooper Fowler performed the Horizontal Gaze Nystagmus (“HGN”)

field sobriety test on Yost, and observed six out of six possible clues indicating

impairment. He also noticed that Vertical Gaze Nystagmus (“VGN”) was present

in each eye during testing. He had Yost complete a number of other field sobriety

tests, which included the walk-and-turn, the one-leg stand, lack of convergence eye

test, a recitation of the alphabet from letter C to X, and counting down from numbers

57 to 42, all of which Yost performed satisfactorily. Trooper Fowler made the

determination to arrest Yost for driving a vehicle while impaired. Trooper Fowler

offered Yost a breath test, which Yost refused. He transported Yost to the Tiffin

Police Department and obtained a search warrant to draw Yost’s blood.

       {¶5} On March 6, 2017, Trooper Fowler filed a complaint alleging that Yost

committed the offense of OVI, in violation of R.C. 4511.19(A)(1)(a), a

misdemeanor of the first degree, and a marked lanes violation, in violation of R.C.

4511.33, a minor misdemeanor. Yost appeared, pro se, for arraignment on March

15, 2017, where he entered a plea of not guilty.

       {¶6} On April 27, 2017, the prosecution filed a motion to dismiss the OVI

based upon the blood test results revealing that Yost was under the legal limit for

driving under the influence of alcoholic beverage.


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       {¶7} On May 26, 2017, the trial court held a hearing on the State’s motion to

dismiss, where Yost appeared pro se. The trial court overruled the motion, noting

that the OVI charge could proceed because “there’s lots of ways you can be

impaired. All right. It’s not just booze” and set the case for trial. (Doc. No. 58 at

3).

       {¶8} On June 15, 2017, Yost retained counsel who filed a notice of

appearance, a motion for new trial date, and a request for leave to file a motion to

suppress. The trial court granted a continuance and permitted Yost to file a motion

to suppress.

       {¶9} On August 4, 2017, Yost filed a “Motion to Suppress/Limine,” arguing

that this arrest was unlawful on several grounds, and requesting that the trial court

suppress the evidence obtained as result of the arrest. Specifically, Yost maintained,

inter alia, that Trooper Fowler lacked reasonable, articulable suspicion to initiate

the traffic stop, failed to perform the NHTSA standard field sobriety testing in

substantial compliance pursuant to R.C. 4511.19(D)(4), and lacked probable cause

to arrest him.

       {¶10} On September 26, 2017, the trial court held a hearing on Yost’s motion

to suppress. Trooper Fowler presented testimony for the prosecution and a video

recording of the stop and arrest made from Trooper Fowler’s cruiser camera was

admitted as evidence at the hearing. At the close of the evidence, the trial court


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overruled the motion to suppress finding that Trooper Fowler had reasonable,

articulable suspicion to make the traffic stop of Yost’s vehicle based upon a marked

lanes violation, that Trooper Fowler administered the HGN test in substantial

compliance with the NHTSA standards, and that Trooper Fowler had probable cause

to arrest Yost for OVI.

       {¶11} On December 4, 2017, Yost entered a plea of no contest to the charges

and the trial court sentenced him to 90 days in jail, all suspended upon his

compliance with the terms and conditions of his one-year period of probation. The

trial court also imposed a $375.00 fine, plus court costs, with a one-year license

suspension.

       {¶12} Yost filed this appeal, asserting the following assignments of error.

                          ASSIGNMENT OF ERROR NO. 1

       THE COURT DENIED APPELLANT’S MOTION TO
       SUPPRESS THE HGN DESPITE THE STATE’S FAILURE TO
       SHOW BY CLEAR AND CONVINCING EVIDENCE THAT
       THE STATE CONDUCTED THE HGN TEST IN
       SUBSTANTIAL COMPLIANCE WITH NHTSA STANDARDS.

                          ASSIGNMENT OF ERROR NO. 2

       THE STATE LACKED PROBABLE CAUSE TO ARREST
       APPELLANT.

       {¶13} For ease of discussion, we elect to address the assignments of error out

of order.



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                             Second Assignment of Error

       {¶14} In his second assignment of error, Yost claims that Trooper Fowler

lacked reasonable, articulable suspicion of a traffic infraction to stop Yost’s vehicle.

Specifically, Yost argues that the facts in the instant case are identical to the facts

in State v. Shaffer, where we found that a one-time touching of the white line by the

tire for approximately three seconds, with no evidence concerning the circumstances

of the defendant’s failure to stay in the lane did not constitute reasonable, articulable

suspicion to stop the vehicle for a violation of R.C. 4511.33. Shaffer, 3d Dist.

Paulding No. 11-13-02, 2013-Ohio-3581.

                                 Standard of Review

       {¶15} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as

such, is in the best position to evaluate the evidence and the credibility of witnesses.

Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a

ruling on a motion to suppress, “an appellate court must accept the trial court's

findings of fact if they are supported by competent, credible evidence.” Burnside at

¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s

conclusions of law, however, our standard of review is de novo, and we must




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independently determine whether the facts satisfy the applicable legal standard. Id.,

citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).

                                Relevant Authority

       {¶16} The Supreme Court of Ohio has defined “reasonable articulable

suspicion” as “specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant the intrusion [upon an individual’s

freedom of movement].” State v. Bobo, 37 Ohio St.3d 177, 178 (1988), quoting

Terry v. Ohio, 392 U.S. 1, 21-22 (1968). “The ‘reasonable and articulable suspicion’

analysis is based on the collection of factors, not on the individual factors

themselves.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 12, quoting

State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 11. “A traffic stop is

constitutionally valid when a law-enforcement officer witnesses a motorist drift

over the lane markings in violation of R.C. 4511.33, even without further evidence

of erratic or unsafe driving.” Mays at syllabus.

       {¶17} Yost was convicted of a driving his vehicle outside the marked lanes,

in violation of R.C. 4511.33, which states:

       (A) Whenever any roadway has been divided into two or more
       clearly marked lanes for traffic, or wherever within municipal
       corporations traffic is lawfully moving in two or more
       substantially continuous lines in the same direction, the following
       rules apply:

            (1) A vehicle or trackless trolley shall be driven, as nearly
            as is practicable, entirely within a single lane or line of traffic

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Case No. 13-18-03


            and shall not be moved from such lane or line until the driver
            has first ascertained that such movement can be made with
            safety.

(Emphasis added).

       {¶18} In Shaffer, supra, we concluded that the record did not support a

reasonable, articulable suspicion to justify the traffic stop of Shaffer based on a

marked-lanes violation under the language of R.C. 4511.33(A)(1). This is because

the testimony of the officer established only that the tires of Shaffer’s vehicle

touched the white fog line without any additional testimony or additional evidence

as to whether or not it was “practicable” for Shaffer to remain in her lane of travel,

or whether she may have been compelled to travel outside her lane for safety

purposes. Id. at ¶ 26. It is this latter testimony or evidence as to the “practicability”

of the remaining in the lane of travel that we held in Shaffer is necessary; in addition

to evidence of merely touching the white fog line, in order to establish probable

cause of a violation of R.C. 4511.33(A)(1). In other words, we simply held in

Shaffer that the language of R.C. 4511.33(A)(1) contains a two prong test for a

marked-lane violation. In making that finding, we reasoned as follows.

       In drafting the foregoing subsection [R.C. 4511.33](A)(1), the
       legislature specifically chose the phase “as nearly as is
       practicable” in describing a motorist’s duty to drive within a
       single lane or line of traffic. We believe the language “as nearly
       as is practicable” inherently contemplates some inevitable and
       incidental touching of the lane lines by a motorist’s vehicle during
       routine and lawful driving, without the vehicle being considered
       to have left the lane of travel so as to constitute a marked lanes

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       violation as proscribed by R.C. 4511.33(A)(1), such as to avoid
       debris, obstructions or imperfections in the roadway.

       In the alternative, the same subsection notably does not proscribe
       all movement from the marked lane but expressly links any
       movement from the marked lane directly with the element of
       safety—specifically permitting movement from the lane only
       where “the driver has first ascertained that such movement can
       be made with safety.”

       Accordingly, it is our conclusion that consideration of the
       statutory factors of practicability and safety is integral to any
       determination of a violation of R.C. 4511.33(A)(1).

       {¶19} Moreover, in Shaffer, we went on to discuss the nature of the evidence

in the record that could be sufficient to address the element of practicability set forth

in the statute:

Shaffer, 2013-Ohio-3581 at ¶¶ 21-23.

       We would be inclined to agree that a reasonable, articulable
       suspicion of a violation of R.C. 4511.33(A)(1) could be established
       by almost any evidence in the record addressing either the
       practicability or the safety of the driving circumstances. This
       conclusion stems in part from the fact that a sudden deviation
       from the lane of travel, where there is nothing in the surrounding
       circumstances to indicate why it was not practicable for the driver
       to remain within the lane, could in itself raise a legitimate safety
       concern sufficient to constitute a reasonable, articulable suspicion
       of a violation of R.C. 4511.33(A)(1) in the right case. * * *

       {¶20} Based on the foregoing analysis, we concluded in Shaffer that:

       However, the fact remains that in this case there is no evidence in
       the record from which any legitimate inference can be drawn
       regarding either one of these requisite statutory elements. As
       noted earlier, the only evidence presented to the trial court was
       Trooper Sisco’s testimony that there was a one-time touching of

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       Shaffer’s tires on the white fog line, causing a slight extension of
       the right fender and mirror of the vehicle over the line for
       approximately three seconds. There was no other evidence
       concerning the circumstances surrounding Shaffer’s failure to
       maintain her lane of travel.

              More specifically, there was nothing in Trooper Sisco’s
       testimony as to the traffic, weather or road conditions, or
       anything else in the record to indicate either 1) that there was no
       apparent reason why it was not practicable for Shaffer to remain
       within the lane, or 2) that in this instance, Shaffer’s single and
       brief movement from the lane otherwise presented any apparent
       issue of safety. Accordingly, without some additional evidence in
       the record regarding the surrounding circumstances, traffic and
       road conditions going to the express statutory language regarding
       either practicability or safety, we cannot conclude that the act of
       Shaffer driving onto the white fog line one time for a matter of
       three seconds is alone sufficient to establish the requisite
       reasonable and articulable suspicion to stop Shaffer for a
       violation of R.C. 4511.33(A)(1).

Shaffer, 2013-Ohio-3581 at ¶¶ 24-27 (emphasis added).

                                       Analysis

       {¶21} At the hearing on the suppression motion, Trooper Fowler testified

that he was travelling towards Yost’s vehicle, which was moving in the opposite

direction, at approximately 3:00 a.m., when he observed Yost drive outside of his

lane. Specifically, Trooper Fowler testified that he was watching Yost’s vehicle as

it approached “and as soon as it passed, coming towards me, it went off the, the right

side of the road just a little over the fog line. And I heard the rumble strips going as

he passed me. And that’s what got my attention.” (Doc. No. 59 at 11).



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       {¶22} As in Shaffer, in this case, there was no testimony elicited from

Trooper Fowler at the suppression hearing concerning the circumstances

surrounding Yost’s failure to maintain his lane of travel—i.e., traffic, weather or

road conditions, where the rumble strips were located in relation to the marked lane,

or anything else to indicate why it was not practicable for Yost to remain within the

lane as contemplated by the statute.

       {¶23} However, in this case there was also a video recording made from

Trooper Fowler’s cruiser camera depicting the entire approach of Yost’s vehicle,

weather, traffic, road conditions, and the circumstances giving rise to the stop. Our

review of that video recording, which was introduced into evidence, clearly

constitutes “evidence in the record from which [a] legitimate inference can be

drawn” that there was no apparent reason why it was impracticable for Yost to

remain his lane pursuant to the standard set forth in Shaffer. See Shaffer at ¶¶ 26-

27.

       {¶24} Accordingly, we do not find error in the trial court’s consideration of

all the evidence in the record including the video and the resulting conclusion that

Trooper Fowler’s traffic stop of Yost’s vehicle for a marked lanes violation was

valid under R.C. 4533.11(A)(1). Therefore, we overrule Yost’s second assignment

of error.




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                              First Assignment of Error

       {¶25} In his first assignment of error, Yost argues that the trial court erred in

overruling his motion to suppress based upon its finding that Trooper Fowler

substantially complied with NHTSA standards when he performed the HGN test on

Yost and found that six out of six clues of impairment were indicated. Specifically,

Yost argues that the video evidence of Trooper Fowler’s stop and arrest of Yost

demonstrates that Trooper Fowler failed to substantially comply with the applicable

standards.

                                 Relevant Authority

       {¶26} In State v. Boczar, the Supreme Court of Ohio held, “... HGN test

results are admissible in Ohio without expert testimony so long as the proper

foundation has been shown both as to the administering officer’s training and ability

to administer the test and as to the actual technique used by the officer in

administering the test.” 113 Ohio St.3d 148, 2007-Ohio-1251, ¶ 27. Moreover,

R.C. 4511.19(D)(4)(b) provides that the results of a field sobriety test are

admissible:

             * * * if it 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 * * *.


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       {¶27} Further, the Supreme Court of Ohio has made clear that the 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, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 15.

                                      Analysis

       {¶28} Here, Trooper Fowler testified that upon approaching Yost’s vehicle

he detected a “strong odor of marijuana in the vehicle.” (Doc. No. 59 at 14).

Trooper Fowler also observed Yost to have “slow movement,” and “bloodshot, red,

glossy eyes.” He asked Yost if he had smoked any marijuana, to which Yost replied

no. Trooper Fowler testified that he placed Yost in his cruiser and conducted the

HGN test in accordance with the NHTSA training he received, and that in the course

thereof he looked for six clues of intoxication, namely lack of smooth pursuit,

distinct nystagmus at maximum deviation, and onset of nystagmus prior to forty-

five degrees in each eye. Trooper Fowler stated that he observed all six clues during

the test indicating impairment. Trooper Fowler testified that he also conducted a

Vertical Gaze Nystagmus test, and observed testified vertical nystagmus in both of

Yost’s eyes.

       {¶29} While conducting the field sobriety tests, Trooper Fowler continued to

detect an odor of alcoholic beverage and marijuana on Yost’s person. He checked

Yost’s mouth and noticed “raised taste buds on the back of [Yost’s] tongue and “a


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Case No. 13-18-03


green tint on the back of his tongue as well.” Trooper Fowler testified that based

on his training these are signs “that [Yost had] been smoking marijuana.” (Doc. No.

59 at 19, 22).

       {¶30} On appeal, Yost claims that Trooper Fowler failed to substantially

comply with NHTSA standards. Specifically, Yost contends that HGN and VGN

tests should take a minimum of eighty-four seconds according to the standards, and

the video recording in this case demonstrates that Troop Fowler only took sixty

seconds to complete the tests. At the outset, we note the timing required to complete

the various elements with respect to both eyes of the HGN test as set forth in the

NHTSA manual are approximate.           State v. Lominack, III, 5th Dist. Stark

No.2012CA00213, 2013-Ohio-2678, ¶ 31. Furthermore, we have rejected a similar

argument that a law enforcement officer failed to substantially comply with the

applicable standards based upon an assertion that the HGN test must be performed

in a specific number of seconds. See State v. Fittro, 3d Dist. Marion No. 9-14-19,

2015-Ohio-1884, ¶ 15.

       {¶31} Nevertheless, despite Yost’s contentions on appeal, a review of the

video recording is inconclusive as to whether Trooper Fowler substantially

complied with NHTSA standards due to the fact that only the audio is captured on

the recording, and the manner in which Trooper Fowler conducted the HGN test is

not able to be observed.


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       {¶32} However, 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 (2000), superseded by statute on

other grounds as stated in State v. Boczar, supra.

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

supported by Trooper Fowler’s observations of slow movement, red, bloodshot,

glassy eyes, an odor of alcoholic beverage and marijuana, raised taste buds and

green coating of Yost’s tongue, and a marked lanes traffic violation. Thus, Trooper

Fowler’s testimony in this respect was admissible for purposes of establishing

whether he had probable cause to arrest Yost for OVI. As such, we overrule the

first assignment of error.

       {¶34} Accordingly, for all these reasons, the assignments of error are

overruled and the judgment is affirmed.

                                                                Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr




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