[Cite as State v. Salyer, 2013-Ohio-140.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 9-12-29

        v.

STEPHEN M. SALYER,                                         OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Marion Municipal Court
                             Trial Court No. TRC 11 7483

                                       Judgment Affirmed

                            Date of Decision:   January 22, 2013




APPEARANCES:

        J.C. Ratliff and Jeff Ratliff for Appellant

        Steven E. Chaffin for Appellee
Case No. 9-12-29


SHAW, J.

       {¶1} Defendant-appellant Stephen M. Salyer (“Salyer”) appeals the

judgment of the Marion Municipal Court sentencing him to 90 days in jail, with 87

suspended, after Salyer was found guilty of OVI in violation of R.C.

4511.19(A)(1)(a) following Salyer’s plea of no contest to the charge. For the

reasons that follow, we affirm the judgment of the trial court.

       {¶2} On September 17, 2011, at approximately 1:39 a.m., Trooper David

Shockey observed a vehicle make a left turn without signaling and initiated a

traffic stop. Trooper Shockey approached the vehicle and learned that Salyer was

the driver. While speaking with Salyer, Trooper Shockey detected a “moderate

odor” of an alcoholic beverage and Trooper Shockey observed that Salyer’s eyes

were glassy, though not bloodshot. According to Trooper Shockey, Salyer was

very talkative, and Salyer admitted to having a rum and coke approximately three

hours prior to the stop.

       {¶3} Subsequently Trooper Shockey asked Salyer to exit his vehicle in

order to perform field sobriety tests. Trooper Shockey first administered the HGN

test, observing two clues of impairment in each of Salyer’s eyes.        Trooper

Shockey then administered an alphabet test, the one legged Stand test, and the

walk and turn test. Salyer did not complete the one leg stand test. According to

Trooper Shockey, Salyer said of the one leg stand test “well, I couldn’t do that


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so…[.]” (Tr. at 23). Trooper Shockey indicated that Salyer caught himself just

before he said “sober” and said instead later on “well, I couldn’t do that—you can

come and find me at 3:00 tomorrow afternoon I couldn’t do that test.” (Id.)

Trooper Shockey stated that he observed one clue of impairment on the walk and

turn test. Taking into consideration the clues on the tests and his observations of

Salyer, Trooper Shockey then arrested Salyer.

       {¶4} Salyer was taken to the Multi-County jail and asked to submit to a

breath test on the Datamaster. Salyer did so and his BAC registered at .093, in

excess of the legal limit. Salyer was ultimately charged with OVI in violation of

R.C. 4511.19(A)(1)(a), and (A)(1)(d), and making a left turn without the use of a

turn signal in violation of R.C. 4511.39. (Doc. 1).

       {¶5} On September 20, 2011, Salyer pled not guilty to the charges, waived

his speedy trial rights, and demanded a jury trial. (Doc. 4).

       {¶6} On December 8, 2011, Salyer filed a twenty-two page motion to

suppress challenging the stop, his detainment, the field and breath tests, and his

arrest. (Doc. 11).

       {¶7} On December 27, 2011, the State filed a motion to limit or strike

Salyer’s motion to suppress on the grounds that it was untimely. (Doc. 13).




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       {¶8} On December 28, 2011, the trial court denied the State’s motion to

strike, adding that the State’s motion to limit Salyer’s motion to suppress would be

addressed at the hearing on the motion to suppress. (Doc. 14).

       {¶9} On December 29, 2011, the trial court held a hearing on the motion to

suppress. At the hearing, Salyer, through counsel, narrowed the issues from the

motion to suppress that would be challenged in the hearing. Salyer’s counsel

specifically challenged “[c]ompliance with NHTSA on the administration of the

field sobriety testing, reasonable suspicion to detain further after the stop, probable

cause to arrest, lack of Miranda upon arrest and – and the results of the breath test

machine.” (Dec. 29, 2011, Tr. at 4).

       {¶10} The State called Trooper Shockey who testified to his credentials,

experience, and the events as described above. Salyer’s counsel cross-examined

Trooper Shockey, but the hearing was ultimately continued to hear further

testimony.

       {¶11} On February 16, 2012, the hearing resumed. At the hearing, Trooper

Benjamin Addy of the State Highway Patrol in Marion County explained the

calibration procedures for the DataMaster. Trooper Addy also testified that he

was the person that calibrated the breath machine on September 11, 2011, and

September 18, 2011, the week prior to and the day after Salyer’s breath test. (Tr.




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91, 93). At the conclusion of Trooper Addy’s testimony, the State rested. No

witnesses were called by Salyer.

        {¶12} On March 28, 2012, the trial court overruled Salyer’s motion to

suppress. As part of this ruling, the trial court cited the testimony of Trooper

Shockey and Trooper Addy and the video of the stop as support for overruling the

motion.

        {¶13} On April 9, 2012, Salyer changed his plea of not guilty and entered a

plea of no contest, with a stipulated finding of guilty. (Doc. 59). The trial court

accepted this plea and sentenced Salyer to 90 days in jail, with 87 suspended.1

(Id.)

        {¶14} It is from this judgment that Salyer appeals, asserting the following

assignment of error for our review.

                     ASSIGNMENT OF ERROR
        THE TRIAL COURT ERRED IN DENYING DEFENDANT’S
        MOTION TO SUPPRESS EVIDENCE AS (1) THE OFFICER
        DID NOT POSSESS A REASONABLE AND ARTICULABLE
        SUSPICION JUSTIFYING THE CONTINUED DETENTION
        OF THE DEFENDANT BEYOND THE SCOPE OF THE
        INITIAL STOP; (2) THE FIELD SOBRIETY TESTS AND
        CHEMICAL TEST WERE NOT DONE IN SUBSTANTIAL
        COMPLIANCE WITH NHTSA OR ITS EQUIVALENT AND
        THE OHIO DEPARTMENT OF HEALTH RULES AND
        REGULATIONS; (3) THE OFFICER DID NOT POSSESS A
        REASONABLE      AND    ARTICULABLE    SUSPICION
        JUSTIFYING THE ADMINISTRATION OF FIELD
        SOBRIETY TESTS; AND (4) THE OFFICER DID NOT
1
  Salyer was also sentenced to pay a $1,000 fine, with $625.00 suspended, Salyer’s license was suspended
for six months, and Salyer was ordered to attend a driver intervention program. (Doc. 59).

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       POSSESS PROBALE                CAUSE       TO      ARREST        THE
       DEFENDANT.

       {¶15} In his assignment of error, Salyer argues that the trial court erred in

overruling his motion to suppress. Salyer asserts four specific grounds to support

his contention.

       {¶16} Initially, we note that appellate review of a decision on a motion to

suppress evidence presents a mixed question of law and fact. State v. Bressler, 3d

Dist. No. 15–05–13, 2006–Ohio–611. At a suppression hearing, the trial court

assumes the role of trier of fact and is in the best position to resolve factual

questions and evaluate the credibility of witnesses. State v. Carter, 72 Ohio St.3d

545, 552 (1995). When reviewing a trial court’s decision on a motion to suppress,

an appellate court must uphold the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Dunlap, 73 Ohio St.3d 308,

314 (1995). We must defer to “the trial court’s findings of fact and rely on its

ability to evaluate the credibility of the witnesses,” and then independently review

whether the trial court applied the correct legal standard. State v. Anderson, 100

Ohio App.3d 688, 691 (4th Dist.1995).

       {¶17} In Salyer’s first and third grounds for contending the trial court erred

in overruling his motion to suppress, Salyer argues that his continued detention

exceeded the scope and duration of the stop, and that Trooper Shockey did not

have reasonable, articulable suspicion to conduct field sobriety tests. The State

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contends Trooper Shockey had reasonable, articulable suspicion that Salyer was

engaged in criminal activity (OVI) that would justify Salyer’s continued detention

and the administration of the field sobriety tests.

       {¶18} When conducting a stop of a motor vehicle for a traffic violation, an

“officer may detain an automobile for a time sufficient to investigate the

reasonable, articulable suspicion for which the vehicle was initially stopped.” State

v. Smith, 117 Ohio App.3d 278, 285, 690 N.E.2d 567 (1st Dist.1996). However,

the duration of the stop “is limited to ‘effectuate the purpose for which the initial

stop was made.’” Id., quoting State v. Venham, 96 Ohio App.3d 649, 655 (4th

Dist.1994), citing United States v. Brignoni–Ponce, 422 U.S. 873 (1975); State v.

Chatton, 11 Ohio St.3d 59, 63 (1994). “Thus, when detaining a motorist for a

traffic violation, an officer may delay the motorist for a time period sufficient to

issue a ticket or a warning.” Smith at 285, citing State v. Keathley, 55 Ohio

App.3d 130 (2d Dist.1998). This time period also includes the period of time

sufficient to run a computer check on the driver’s license, registration, and vehicle

plates. See Delaware v. Prouse, 440 U.S. 648, 659 (1979).

       {¶19} The detention of a stopped driver may continue beyond the time

frame necessary to conduct the stop for purposes of the traffic violation when

“additional facts are encountered that give rise to a reasonable, articulable

suspicion [of criminal activity] beyond that which prompted the initial stop[.]”


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Smith at 285, citing State v. Myers, 63 Ohio App.3d 765, 771 (2nd Dist.1990);

Venham at 655. Reasonable articulable suspicion exists when there are “‘specific

and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant the intrusion.’” State v. Stephenson, 3d Dist. No. 14-04-

08, 2004-Ohio-5102, ¶ 16, quoting State v. Bobo, 37 Ohio St.3d 177, 178 (1988).

       {¶20} An officer’s request to perform field sobriety tests must be separately

justified by specific, articulable facts showing a reasonable basis for the request.

State v. Evans, 127 Ohio App.3d 56, 62-63 (11th Dist.1998), citing Yemma, supra.

“Although the facts that served as the impetus for the stop may also assist in

providing this separate justification, additional articulable facts are necessary.” Id.

       {¶21} Whether a law enforcement officer possessed reasonable suspicion or

probable cause to continue to detain an individual must also be examined in light

of the “totality of the circumstances.” State v. Cromes, 3d Dist. No. 17-06-07,

2006-Ohio-6924, ¶ 38, citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct.

744 (2002). The totality of the circumstances test “allows officers to draw on their

own experience and specialized training to make inferences from and deductions

about the cumulative information available to them that ‘might well elude an

untrained person.’” Id., citing Arvizu, 534 U.S. at 273, quoting United States v.

Cortez, 449 U.S. 411, 418, 101 S.Ct. 690 (1981).




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       {¶22} Circumstances from which an officer may derive a reasonable,

articulable suspicion that the detained driver was operating the vehicle while under

the influence include, but are not limited to:

       (1) the time and day of the stop (Friday or Saturday night as
       opposed to, e.g., Tuesday morning); (2) the location of the stop
       (e.g., whether near establishments selling alcohol); (3) any
       indicia of erratic driving before the stop that may indicate a lack
       of coordination (speeding, weaving, unusual braking, etc.); (4)
       whether there is a cognizable report that the driver may be
       intoxicated; (5) the condition of the suspect's eyes (bloodshot,
       glassy, glazed, etc.); (6) impairments of the suspect's ability to
       speak (slurred speech, overly deliberate speech, etc.); (7) the
       odor of alcohol coming from the interior of the car, or, more
       significantly, on the suspect's person or breath; (8) the intensity
       of that odor, as described by the officer (“very strong,” “strong,”
       “moderate,” “slight,” etc.); (9) the suspect's demeanor
       (belligerent, uncooperative, etc.); (10) any actions by the suspect
       after the stop that might indicate a lack of coordination
       (dropping keys, falling over, fumbling for a wallet, etc.); and (11)
       the suspect's admission of alcohol consumption, the number of
       drinks had, and the amount of time in which they were
       consumed, if given.

Evans, 127 Ohio App.3d at 63, Fn. 2. “All of these factors, together with the

officer’s previous experience in dealing with [impaired] drivers, may be taken into

account by a reviewing court in determining whether the officer acted reasonably.

No single factor is determinative.” Id.

       {¶23} At the suppression hearing, Trooper Shockey testified that he

stopped Salyer’s vehicle at approximately 1:39 a.m. on September 17, 2011, for

failing to use a left turn signal when turning left. Trooper Shockey testified that


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when he spoke with Salyer, Trooper Shockey detected a “moderate” odor of an

alcoholic beverage. According to Trooper Shockey, Salyer was very talkative and

Salyer admitted to consuming a rum and coke approximately three hours prior to

the stop. Trooper Shockey testified that Salyer’s eyes were glassy, though not

bloodshot.

         {¶24} The trial court cited the time, odor of an alcoholic beverage, glassy

eyes, and admission of the consumption of alcohol as support for Trooper

Shockey’s detainment of Salyer in its entry denying Salyer’s motion to suppress.2

(Doc. 46).

         {¶25} Based on the evidence in the record, we conclude that Trooper

Shockey encountered additional facts to give rise to a reasonable, articulable

suspicion of criminal activity beyond that which prompted the initial stop. We

further conclude that Trooper Shockey’s reasonable, articulable suspicion that

Salyer was driving while impaired justified the prolonged detention to administer

the field sobriety tests.           Accordingly, we find no error with the trial court’s

decision to overrule Salyer’s motion to suppress on either of these bases.

         {¶26} As the next ground for contending that the trial court erred in

overruling his motion to suppress, Salyer argues that the field sobriety tests and

2
  The trial court also cited the fact that Salyer pulled over on the wrong side of the road. (Id.) On appeal,
Salyer argues that he pulled over on the wrong side of the road out of convenience/necessity. The video of
the stop does indicate that Salyer pulled over on the left side of the road; however, the video also illustrates
that cars were parked all along the right side of the road, thus there is no indication as to whether this action
was done out of necessity or convenience.

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the chemical breath test were not administered in substantial compliance with the

applicable guidelines, and therefore the results from these tests should have been

suppressed.

        {¶27} In order for the results of field sobriety tests to be admissible, the

State is not required to show strict compliance with testing standards, but must

instead demonstrate that the officer substantially complied with NHTSA

standards. R.C. 4511.19(D)(4)(b); State v. Clark, 12th Dist. No. CA2009-10-039,

2010-Ohio-4567, ¶ 11.              “A determination of whether the facts satisfy the

substantial compliance standard is made on a case-by-case basis.” State v. Fink,

12th Dist. Nos. CA2008-10-118, CA2008-10-119, 2009-Ohio-3538, ¶ 26. The

State may demonstrate what the NHTSA standards are through competent

testimony and/or by introducing the applicable portions of the NHTSA manual.

State v. Boczar, 113 Ohio St.3d 148, 153, 2007-Ohio-1251, at ¶ 28.

        {¶28} At the suppression hearing and on appeal, Salyer does not identify

specific errors with Trooper Shockey’s administration of the field sobriety tests, in

light of NHTSA or other applicable guidelines, but nevertheless Salyer argues that

suppression of the test results is warranted.3

        {¶29} Regarding the Field Sobriety Tests, the trial court’s entry denying the

motion to suppress stated the following:

3
  At the suppression hearing, Salyer did seem to question the fact that Trooper Shockey administered an
“alphabet test” to Salyer after the HGN and before the other tests, but he does not renew this argument on
appeal.

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             In this case, Defendant Salyer contends that the field
        sobriety tests were not conducted in substantial compliance with
        NHTSA standards.          Trooper Shockey testified that he
        administered standardized field sobriety tests which included
        the HGN, the One-Leg Stand and the Walk and Turn Tests. In
        explaining his administration of the HGN test, Shockey stated
        that he checked for visual or other distractions, and he checked
        for eyeglasses. He further testified as to how he positioned the
        stimulus and that he detected 4 clues while checking for lack of
        smooth pursuit and 4 clues while checking for distinct
        nystagmus at maximum deviation.4 Shockey did not detect any
        clues on the onset of nystagmus prior to 45 degrees. Finally,
        Trooper Shockey stated that he administered the HGN “as
        explained in the manual”.

             On the One-Leg Stand test, Trooper Shockey testified, and
        the video revealed, as to how he set up the test conditions and
        how he instructed and positioned the defendant. When the
        trooper instructed the defendant to begin, he could not perform
        the test and stated, “I couldn’t do this even if I was
        sob…..(sober)[.]” He continually touched the ground with his
        foot. Shockey testified that he found that the defendant could
        not perform the test, but did not offer any number of clues that
        he detected.

              On the Walk and Turn, Trooper Shockey’s testimony and
        the video revealed that he set up the test conditions and that he
        explained and demonstrated the test asking questions as to the
        defendant’s understanding of the instructions. Thereafter,
        Shockey testified that he detected 1 clue, but the video actually
        recorded 2 clues: stepped off the line and used arms to balance,
        lifting them more than six inches from his side.



4
  We note that it is not clear whether the trial court’s characterization directly corresponds to Trooper
Shockey’s testimony. Trooper Shockey testified, “Yes, I observed a total of four clues, two in each eye, I
observed a nystagmus, maximum deviation and lack of smooth pursuit. I did not observe nystagmus prior
to 45 degrees.” (Tr. at 21). However, even if the trial court’s characterization is improper—for example, if
the trial court was stating there were 4 clues in each eye (which is not possible as there are only 6 clues
total, 3 in each eye)—any misstatement would not change the outcome here. The HGN results were not
considered by the trial court.

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             Based on the testimony and evidence presented, the Court is
       unable to find clear and convincing evidence that Trooper
       Shockey administered the HGN test in substantial compliance
       with NHTSA standards. However, the Court finds clear and
       convincing evidence that the One-Leg Stand and Walk and Turn
       tests were administered in substantial compliance.

(Doc. 46).

       {¶30} Thus the trial court found that the HGN test was not done in

compliance with NHTSA standards but the one leg stand and walk and turn test

were conducted in substantial compliance with recognized standards. The record

supports the trial court’s findings. Trooper Shockey testified at the suppression

hearing that he received Alcohol Detection and Prosecution (ADAP) training and

that he administered the tests according to the NHTSA manual. (Tr. at 16, 20, 22-

23).

       {¶31} Even assuming arguendo that we find that Trooper Shockey did not

substantially comply with NHTSA or other applicable standards—which would

require the results of the tests to be excluded—Trooper Shockey’s testimony

regarding Salyer’s performance on nonscientific field sobriety tests is admissible

under Evid.R. 701 and can support a finding of probable cause to arrest under the

totality of the circumstances analysis. See State v. Schmitt, 101 Ohio St.3d 79,

2004-Ohio-37, ¶¶ 14-15. Notwithstanding this fact, we find no error in the trial

court’s conclusion that the State met its burden in demonstrating that Trooper



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Case No. 9-12-29


Shockey’s administration of the one-leg stand and walk and turn tests substantially

complied with NHTSA standards.5

        {¶32} Next, Salyer challenges the admissibility of the results from the

breath analysis test and asserts that the State failed to demonstrate that the test was

conducted in substantial compliance with the regulations prescribed by the

Director of the Ohio Department of Health. Specifically Salyer argues the State

failed to show that Salyer’s test was conducted free of any radio frequency

interference (“RFI”). Salyer also argues that the State did not establish that it had

kept three years of records on the Datamaster as required by the Ohio Department

of Health Rules.

        {¶33} In seeking to suppress the results of a breath analysis test, the

defendant must set forth an adequate basis for the motion. State v. Shindler, 70

Ohio St.3d 54, 58, 1994-Ohio-452. The motion must state the “* * * legal and

factual bases with sufficient particularity to place the prosecutor and court on

notice as to the issues contested.” Id; Crim.R. 47. Once an adequate basis for the

motion has been established, the prosecution then bears the burden of proof to

demonstrate substantial compliance with the Ohio Department of Health

regulations. Xenia v. Wallace, 37 Ohio St.3d 216, 220 (1988). If the prosecution

demonstrates substantial compliance, the burden of proof then shifts to the


5
 As the court found that the HGN test was not done in substantial compliance with recognized guidelines,
we need not conduct a similar analysis regarding this test.

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Case No. 9-12-29


defendant to overcome the presumption of admissibility and demonstrate that he

or she was prejudiced by anything less than strict compliance. State v. Burnside,

100 Ohio St.3d 152, 157, 2003-Ohio-5372, ¶ 24.

      {¶34} The extent of the State’s burden to show substantial compliance

varies with the degree of specificity of the violation alleged by the defendant.

“When a defendant’s motion to suppress raises only general claims, along with the

Ohio Administrative Code sections, the burden imposed on the state is fairly

slight.” State v. Johnson, 137 Ohio App.3d 847, 851 (2000). Specifically, when a

motion fails to allege a fact-specific way in which a violation has occurred, the

state need only offer basic testimony evidencing compliance with the code section.

State v. Bissaillon, 2d Dist. No. 06–CA–130, 2007-Ohio-2349, ¶ 15.

      {¶35} Salyer’s motion to suppress did allege that Trooper Shockey did not

ensure that Salyer’s test was conducted free of any radio transmissions from

within the affected RFI zone.     Salyer’s counsel also raised this issue at the

suppression hearing and questioned Trooper Shockey regarding RFI interference

on cross-examination. On direct-examination at the suppression hearing, Trooper

Shockey testified that he was a Senior Operator with authority to perform testing

on the BAC Datamaster. (Tr. at 17). On cross-examination, Salyer’s counsel

specifically questioned Trooper Shockey regarding potential RFI interference.




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What follows is testimony that was elicited from Trooper Shockey on cross-

examination:

      Q: [Defense on Cross-examination] There are two people at all

      times in the Multi-County booking room, correct?

      A: [Trooper Shockey] No.

      Q: No. It’s not their policy to have two people in the booking

      room?

      A: I’m not – I don’t know what their policy is, but I know what

      the reality of things are.

      Q: Okay. That night in question how many people were in the

      booking room.

      A: I have no clue, I don’t remember.

      Q: Okay. So there could have been two, correct?

      A: There could have been.

      Q: Okay. And they wear radios, correct?

      A: Correct.

      Q: And they – according to their policy they don’t turn those

      radios off because – in case of an emergency at the jail and

      they’re required to respond, correct?

      A: Correct.


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Case No. 9-12-29


       Q: Okay. So upon administering the test you didn’t ask either

       one of them to leave, did you?

       A: No.

       Q: Okay. And upon administering the test I didn’t hear any

       testimony that your radio was off?

       A: I don’t know if it was or wasn’t.

(Tr. 66-67).

       {¶36} The State’s other witness, Trooper Addy, also offered some

testimony regarding RFI related to the Datamaster in question. Trooper Addy

testified that he performed the RFI check on the Datamaster September 11, 2011,

at approximately 7:27, within the weekly range of testing. (Tr. at 107). Trooper

Addy testified that the Datamaster was functioning properly. Trooper Addy also

testified that he performed the weekly check on September 18, 2011, after Salyer’s

test, and that machine was functioning properly.

       {¶37} While Salyer argues on appeal that Trooper Shockey did not insure

that no RFI interference was present during testing, the preceding testimony does

not affirmatively establish that there was RFI interference in Salyer’s test. First,

whereas on appeal Salyer argues that two other officers were in the room when

Salyer took his breath test and that Trooper Shockey’s radio was on, no testimony

affirmatively establishes this fact. Trooper Shockey testified that he could not


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Case No. 9-12-29


remember whether other people were in the room, and that he could not remember

whether his radio was on. This testimony does not, in any way, establish that there

were definitely radios on during Salyer’s test within a range that could disrupt the

Datamaster.

       {¶38} Second, at the hearing, Salyer called no witnesses to testify as to how

these “hypothetical” radios that were potentially on in the room at the time of the

test caused any actual interference with Salyer’s specific test.       There is no

evidence connecting any of the radios that may or may not have been on or present

to any actual RFI interference. Under these circumstances we cannot find that the

trial court erred in overruling Salyer’s motion to suppress the breath test based on

the tenuous connection of RFI interference advocated by Salyer.

       {¶39} Salyer’s argument regarding record keeping is similarly nebulous.

On appeal, Salyer claims that in his motion to suppress and at the suppression

hearing he challenged the record keeping related to the Datamaster. According to

Salyer, the Ohio Department of Health requires three years of records to be

maintained on the testing machine. Salyer contends that the State did not establish

substantial compliance with this rule. It is not clear from Salyer’s motion to

suppress, the testimony at the suppression hearing, or Salyer’s brief to this court

how there was any failure in record keeping or how any alleged failure affected

the results of Salyer’s test.


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           {¶40} Trooper Addy testified that he had performed the required instrument

checks the week prior to Salyer’s test on September 11, 2011, and the week (day)

following Salyer’s test, September 18, 2011.6             According to Trooper Addy’s

testimony, the machine was functioning properly. It is unclear from the record

how any lack of records months or years prior to the date of the test in question

caused an issue warranting suppression of the breath test. Based on the foregoing,

we cannot find that the trial court erred in its ruling not to suppress the breath test

results.

           {¶41} In his final argument, Salyer argues that the court erred in concluding

that probable cause existed to arrest Salyer. The trial court’s entry regarding

probable cause reads as follows:

           In this case, Trooper Shockey took into consideration the fact
           that the defendant stopped his car on the left side of the street
           facing the wrong way; that the defendant had admitted to
           drinking three (sic) rum and cokes prior to the stop; that there
           was an odor of alcohol from the defendant’s breath and person;
           that the defendant’s eyes were glassy; that the defendant
           exhibited an extraordinary amount of talkativeness; the
           observations that he made as Defendant performed the
           standardized field sobriety tests; and the clues presented from
           the Walk and Turn and the defendant’s inability to perform the
           One Leg Stand. These facts and events, given the totality of the
           circumstances, would have warranted a reasonable person such
           as the trooper to believe that Defendant Salyer committed a
           violation of ORC 4511.19.

(Doc. 46).

6
    Calibration checks were conducted every seven days.

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Case No. 9-12-29


        {¶42} We note that the trial court mistakenly characterizes the amount of

alcohol that Salyer admittedly consumed; Salyer admitted to having one rum and

coke three hours prior to the stop, not three drinks. We further note that while

Trooper Shockey may have considered the fact that Salyer’s vehicle was stopped

on the wrong side of the road, and that this fact was clearly displayed in the video

thereby being properly considered by the trial court, Trooper Shockey did not

testify that this was a factor in determining his probable cause.

        {¶43} Despite the trial court’s mischaracterizations, we find that the

remaining facts and circumstances, even without considering the HGN test, still

would give rise to probable cause to arrest Salyer for OVI. In addition to the facts

cited by the trial court that were established in the record, we would also point to

the time being a factor, since it was approximately 1:39 a.m., and we would also

point to Trooper Shockey’s testimony that Salyer had been about to say “well I

couldn’t even do that so[ber].” (Tr. at 23). These facts taken with Salyer’s

admission to drinking, his glassy eyes, his traffic violation, the clue on the walk

and turn, Salyer’s inability to perform the one leg stand test, and the moderate

odor of alcohol could lead to probable cause.7                      Under the totality of the

circumstances, we cannot find that the trial court erred in finding there was

probable cause to arrest Salyer.


7
  As the trial court did not find that the HGN test was done in substantial compliance with recognized
standards, we did not use the HGN clues in our review of probable cause.

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       {¶44} For the foregoing reasons Salyer’s assignment of error is overruled

and the judgment of the Marion Municipal Court is affirmed.

                                                              Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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