         [Cite as State v. Kaczmarek, 2015-Ohio-3852.]
                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :      APPEAL NO. C-140610
                                                         TRIAL NO. C-13TRC-18234-B
        Plaintiff-Appellee,                       :

  vs.                                             :         O P I N I O N.

DAVID C. KACZMAREK,                               :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 23, 2015

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Suhre & Associates, LLC, and Joseph B. Suhre IV for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS



STAUTBERG, Judge.

           {¶1} On April 26, 2013, defendant-appellant David Kaczmarek was pulled

over by the Ohio State Highway Patrol and issued a citation for speeding under R.C.

4511.21(D)(2) and two counts of operating a vehicle while impaired (“OVI”) under

R.C. 4511.19 (A)(1)(a) and 4511.19(A)(1)(d). Kaczmarek filed a pretrial motion to

suppress evidence, which was granted in part and otherwise overruled. After trial to

a jury, Kaczmarek was convicted of OVI in violation of R.C. 4511.19(A)(1)(d), and

acquitted of the charge brought pursuant to R.C. 4511.19(A)(1)(a). Kaczmarek timely

appealed his conviction. We affirm the trial court’s judgment.

           {¶2} Kaczmarek was pulled over on northbound I-71 in northern

Hamilton County at approximately 1:00 a.m. on April 26, 2013, after an Ohio State

Highway Patrol trooper detected him going 87 m.p.h. in a 65 m.p.h. zone. During

the stop, the trooper found that Kaczmarek gave unusual answers to some

preliminary questions, and he detected a moderate odor of alcohol. The trooper then

asked Kaczmarek to exit from his vehicle in order to perform field-sobriety tests,

including the horizontal-gaze-nystagmus (“HGN”), the walk-and-turn (“WAT”), and

the one-leg-stand (“OLS”) tests.      The trooper noticed that Kaczmarek appeared

unsteady on his feet after getting out of his car.

           {¶3} In prescreening Kaczmarek to prepare for the field-sobriety tests, the

trooper asked Kaczmarek whether he wore glasses or contacts and whether he had

any medical conditions, to which Kaczmarek replied that he did not. Kaczmarek

exhibited six clues on the HGN test. Kaczmarek also exhibited three clues on the

WAT test, and “quite a few” clues on the OLS test. Thereafter, Kaczmarek was placed

under arrest and taken to the Lebanon post of the State Highway Patrol. A breath




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test was administered, the result of which was an alcohol concentration of .101 grams

of alcohol per 210 liters of breath.

           {¶4} Kaczmarek filed a pretrial motion to suppress in which he argued a

litany of reasons why the field-sobriety tests should be suppressed. The trial court

conducted a hearing on that motion, during which it heard testimony from the

trooper about the traffic stop, the trooper’s observations, and details regarding the

field-sobriety tests Kaczmarek had been asked to perform. Kaczmarek argued to the

trial court that the field tests were not conducted in substantial compliance with the

National Highway Traffic Safety Administration’s (“NHTSA”) DWI Detection and

Standardized Field Sobriety Testing Manual. Specifically, Kaczmarek argued that the

HGN test was conducted while the trooper’s cruiser lights were in his line of sight,

with the trooper’s pen at incorrect positions, and for an incorrect duration of time.

With respect to the WAT and OLS tests, Kaczmarek argues that his overweight status

should have precluded the trooper from conducting those tests.

           {¶5} The trial court agreed with Kaczmarek regarding the administration

of the HGN test, and suppressed evidence of that test because it was not given in

substantial compliance with the NHTSA manual. The trial court found that the WAT

and OLS tests were administered in substantial compliance with the NHTSA manual,

and overruled Kaczmarek’s motion with respect to those tests. The trial court further

found that the trooper had probable cause to detain Kaczmarek beyond the initial

stop for speeding and to arrest Kaczmarek for OVI at the conclusion of the field-

sobriety tests.

           {¶6} Kaczmarek then proceeded to a jury trial on the OVI charges. After a

two-day trial, the jury returned a verdict of not guilty on the charge brought under

R.C. 4511.19(A)(1)(a), and guilty on the charge brought under R.C. 4511.19(A)(1)(d).




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           {¶7} In his sole assignment of error, Kaczmarek argues that the trial court

erred by overruling his motion to suppress. “The motion to suppress is critically

important in OVI cases. As a practical matter, this stage of the proceeding often

disposes of the case or, at the very least, has a significant impact on its outcome.”

Weiler and Weiler, Ohio Driving Under the Influence Law, Section 9:3, at 311 (2014-

2015 Ed.). In support of his assignment of error, Kaczmarek argues the trial court

erred in finding that the WAT and OLS tests were administered in substantial

compliance with the NHTSA manual. He further argues that the trooper did not have

probable cause to arrest him.

           {¶8} Kaczmarek was cited for OVI under R.C. 4511.19(A)(1)(a) and

4511.19(A)(1)(d). Although Kaczmarek conceded the propriety of the initial stop for

speeding, he argues that the WAT and OLS tests were not properly conducted and

should have been suppressed. With evidence of the WAT and OLS tests suppressed,

Kaczmarek argues, the trooper would not have had probable cause for the arrest and

use of the breathalyzer. We disagree.

           {¶9} Review of a trial court’s decision on a motion to suppress presents a

mixed question of law and fact. State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-

1574, 10 N.E.3d 691, ¶ 7, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. In deciding a motion to suppress, the trial court assumes

the role of the trier of fact, and the trial court’s findings of fact must be accepted by

the appellate court if they are supported by competent, credible evidence. Id. If the

findings of fact are properly supported, the appellate court then independently

determines whether the facts satisfy the applicable legal standard. Id.

           {¶10} We turn first to the question of the administration of the WAT and

OLS tests. The trooper detected three clues on the WAT test, and detected multiple




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clues in the OLS test. Kaczmarek argues that the trooper failed to do an appropriate

prescreening for the tests and that because he was more than 50 pounds overweight,1

the tests should not have been conducted at all. Kaczmarek points to a section in the

NHTSA Manual that states, “The original research indicated that certain individuals

over 65 years of age, [individuals with] back, leg, or inner ear problems, or people

who are overweight by 50 or more pounds had difficulty performing this test.” This

statement was included in the section addressing the administration of the OLS.

Contrary to Kaczmarek’s argument, this statement is not contained within the

section concerning the WAT test.          Nevertheless, while the statement may be

cautionary, there is nothing in the manual that excludes or excuses overweight

people from being asked to complete the OLS test. See State v. Tyner, 2d Dist.

Montgomery No. 25405, 2014-Ohio-2809, ¶ 10. Being within 50 pounds of an

appropriate weight is not a prerequisite for the administration of the standardized

OLS test. We therefore agree with the trial court that the WAT and OLS tests were

administered in substantial compliance with the NHTSA manual.

           {¶11} In determining whether the trooper had probable cause to arrest

Kaczmarek, we look to the totality of the circumstances. See State v. Vonalt, 9th

Dist. Medina No. 10CA0103-M, 2011-Ohio-3883, ¶ 10. In addition, even though the

results of the HGN test were suppressed, the trooper’s observations regarding

Kaczmarek’s performance on that test can be considered in determining probable

cause for an arrest. State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d

446, ¶ 14-16.    Upon consideration of the trooper’s observations of Kaczmarek—

including the moderate odor of alcohol and unusual responses to questions—and the



1 There is no evidence of record regarding Kaczmarek’s weight other than the trooper agreeing
that he was more than 50 pounds overweight at the time of the arrest.




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                      OHIO FIRST DISTRICT COURT OF APPEALS

results and clues detected on the WAT and OLS tests, we find there was probable

cause to arrest Kaczmarek for operating a vehicle while impaired.

           {¶12} Kaczmarek’s sole assignment of error is overruled. We affirm the

trial court’s judgment.

                                                                    Judgment affirmed.

CUNNINGHAM, P.J., and FISCHER, J., concur.



Please note:

       This court has recorded its own entry this date.




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