[Cite as State v. Cline, 2013-Ohio-1404.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 12 CA 11
TRISTA CLINE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Mount Vernon
                                               Municipal Court, Case Nos. 11 TRC 3560
                                               and 11 CRB 870

JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        April 8, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

WILLIAM D. SMITH                               J. MATTHEW DAWSON
LAW DIRECTOR                                   35 South Park Place
P. ROBERT BROEREN, JR.                         Suite 10
ASSISTANT PROSECUTOR                           Newark, Ohio 43055
5 North Gay Street, Suite 222
Mount Vernon, Ohio 43050
Knox County, Case No. 12 CA 11                                                          2

Wise, J.

       {¶1}    Defendant-appellant Trista Cline appeals her conviction on one count of

Operating a Motor Vehicle While Under the Influence of Alcohol and/or a Drug of Abuse

and one count of Endangering Children entered in the Mount Vernon Municipal Court

following a jury trial.

       {¶2}    Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶3}    On or about July 23, 2011, sometime after 6 p.m., Appellant Trista Cline

drove to the Loft Bar in St. Louisville, Ohio, which was her mother Jackie Laughman’s

place of business. Appellant had her five year old son, Mason Rine, in the car with her.

(T. at 109-110). While she was at the bar with Mason, Appellant came into contact with

Winter Gleckler, a part-time employee of the bar. Ms. Gleckler testified that Appellant

was "a little disoriented ... she didn't seem in the right state to like even have a full

conversation." (T. at 111). Ms. Gleckler also smelled alcohol coming from Appellant. (T.

at 111). Ms. Gleckler stated that she was concerned about Appellant and her son and

attempted to keep them at the bar until Ms. Laughman arrived. (T. at 112).

       {¶4}    Appellant left the bar before her mother arrived. Once Ms. Laughman did

arrive, Ms. Gleckler expressed her concerns and Ms. Laughman and Ms. Gleckler set

out to find Appellant. (T. at 114). Ms. Laughman and Ms. Gleckler eventually located

Appellant, and while they were following her, they observed Appellant driving erratically,

even driving through a person's yard. (T. at 114-115). Ms. Gleckler was driving and Ms.

Laughman tried to contact several different law enforcement agencies while they were

driving.
Knox County, Case No. 12 CA 11                                                          3


      {¶5}   After driving for a period of time, Appellant entered the City of Mount

Vernon and pulled into the parking lot at Honey Bucket Bar on West High Street. (T. at

154). Ptl. Jessica Butler of the City of Mount Vernon, Ohio, Police Department had

received a BOLO on Appellant, based on Ms. Laughlin's calls, and pulled in behind the

Appellant at Honey Buckets. (T. at 153-154). When Ptl. Butler made contact with

Appellant she initially smelled a strong odor of an alcoholic beverage on her breath,

observed her glassy and blood shot eyes and noticed she appeared to be very

disheveled and unsteady on her feet. (T. at 154). She also observed that her speech

was slurred. Id. Ptl. Butler also observed Mason Rine in the back seat of the car, along

with one opened and one unopened beer in the front seat. (T. at 154). Based on her

observations, Ptl. Butler conducted Standardized Field Sobriety tests on Appellant. Ptl.

Butler observed 6 clues on the horizontal gaze nystagmus test, (T. at 159), 6 clues on

the walk and turn test, (T. at 163), and the one-legged stand test was aborted because

of concerns about Appellant's safety. (T. at 161). Ptl. Butler then arrested Appellant for

Operating a Motor Vehicle Under the Influence of Alcohol and/or a Drug of Abuse, and

transported her to the Office of the Knox County Sheriff so she could request Appellant

to take a chemical breath test.

      {¶6}   At the Office of the Knox County Sheriff, Ptl. Butler read the BMV 2255

form to Appellant and requested that she take a breath test. (T. at 166). When taking

the test, Appellant "attempted to swallow the entire mouthpiece ... and then she began

to blow, but she was actually spitting into the mouthpiece." (T. at 168).       After two

attempts the test was marked as a refusal. (T. at 169).
Knox County, Case No. 12 CA 11                                                         4


      {¶7}   On July 23, 2011, Appellant was arrested for Operating a Motor Vehicle

Under the Influence of Alcohol and/or a Drug of Abuse and Endangering Children.

      {¶8}   On September 16, 2011, Appellant filed a Motion to Suppress but

withdrew said motion on October 18, 2011.

      {¶9}   The case was tried to a jury on April 26, 2012, and the jury returned a

guilty finding on both counts. The trial court ordered a pre-sentence investigation and

the Defendant was sentenced on May 14, 2012.

      {¶10} Appellant now appeals, assigning the following errors for review:

                               ASSIGNMENTS OF ERROR

      {¶11} “I. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT

THE RIGHT TO CROSS-EXAMINE THE COMPLAINING OFFICER ON HOW

STANDARDIZED        FIELD      SOBRIETY   TESTS     WERE     CONDUCTED        ON    THE

DEFENDANT AFTER THE OFFICER HAD GIVEN DIRECT TESTIMONY ON THE

PROCEDURES THAT WERE TAKEN THAT COULD HAVE LEAD [SIC] THE JURY TO

AN ACQUITTAL.

      {¶12} “II. THE TRIAL COURT ERRED IN EXCLUDING MATERIAL TESTIMONY

AND EVIDENCE REGARDING THE MEANING/DEFINITION OF THE PRINTED

RESULTS FROM THE BAC DATAMASTER FROM THE JURY THAT COULD HAVE

LEAD (SIC) THE JURY TO AN ACQUITTAL.”

                                            I.

      {¶13} In her First Assignment of Error, Appellant argues that the trial court erred

in not allowing her to cross-examine the police officer about how she conducted the field

sobriety tests. We disagree.
Knox County, Case No. 12 CA 11                                                            5


       {¶14} At trial, during cross-examination, Appellant attempted to use the National

Highway Traffic Safety Manual to challenge Ptl. Butler’s administration of the

standardized field sobriety tests.

       {¶15} Appellant failed to raise any challenges to Ptl. Butler’s administration of

the tests under the National Highway Traffic Safety Manual via a motion to suppress

prior to trial, having withdrawn said motion prior to a hearing on the issues.

       {¶16} This Court has previously held that failure to timely file a motion to

suppress evidence amounts to a waiver of any such issues for purposes of trial

pursuant to Crim.R. 12(D) and (H). State v. Fornshell, 5th Dist. App. No. 10 CA 48,

2011-Ohio-3560; State v. Montgomery, Licking App.No. 2007 CA 95, 2008–Ohio–6077,

¶ 43, citing State v. Wade (1973), 53 Ohio St.2d 182, 373 N.E.2d 1244.

       {¶17} Here, during the trial, defense counsel attempted to use the NHTSA

manual to impeach Ptl. Butler’s testimony. Impeaching her testimony with the manual

was tantamount to arguing that evidence with respect to Appellant's alleged intoxication

was illegally obtained, and thus, the proper subject of a motion to suppress.

       {¶18} The failure to file a motion to suppress constituted waiver of that issue.

       {¶19} Appellant’s First Assignment of Error is overruled.

                                             II.

       {¶20} In her Second Assignment of Error, Appellant argues the trial court erred

in denying her the right to cross-examine Deputy Wilson on the BAC Datamaster

Supervisor’s guide. We disagree.
Knox County, Case No. 12 CA 11                                                             6


        {¶21} At trial, the trial court sustained the State’s objection to Appellant’s use of

the BAC Datamaster Supervisor’s guide to challenge the officer’s administration of the

tests, including the definitions of certain error codes.

        {¶22} Again, as set forth above, failure to timely file a motion to suppress

evidence amounts to a waiver of any such issues for purposes of trial pursuant to

Crim.R. 12(D) and (H). State v. Fornshell, 5th Dist. App. No. 10 CA 48, 2011-Ohio-

3560.

        {¶23} Additionally, no chemical results were produced in this case because after

two unsuccessful attempts, Appellant’s failure to successfully take the test was marked

as a refusal. It therefore follows that the deputy’s knowledge of error codes is not

relevant to Appellant’s refusal of the chemical test.

        {¶24} Appellant’s Second Assignment of Error is overruled.

        {¶25} For the foregoing reasons, the judgment of the Mount Vernon Municipal

Court, Knox County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, P. J., and

Gwin, J., concur.


                                               ___________________________________


                                               ___________________________________


                                               ___________________________________

                                                                   JUDGES
JWW/d 0326
Knox County, Case No. 12 CA 11                                                  7


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




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
TRISTA CLINE                              :
                                          :
       Defendant-Appellant                :         Case No. 12 CA 11




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Mount Vernon Municipal Court, Knox County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
