[Cite as State v. Murray, 2020-Ohio-45.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :
         Plaintiff-Appellee                     :   Appellate Case No. 28373
                                                :
 v.                                             :   Trial Court Case No. 2018-CR-2799
                                                :
 KEVIN M. MURRAY                                :   (Criminal Appeal from
                                                :   Common Pleas Court)
         Defendant-Appellant                    :
                                                :

                                           ...........

                                           OPINION

                           Rendered on the 10th day of January, 2020.

                                           ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
     Attorney for Defendant-Appellant

                                           .............




TUCKER, J.
                                                                                            -2-


       {¶ 1} Defendant-appellant Kevin Murray appeals his conviction for operating a

motor vehicle while under the influence. He contends that the arresting officer had no

basis for conducting a field sobriety test. He further contends that the officer lacked

probable cause to arrest him because the officer improperly administered the horizontal

gaze nystagmus (HGN) test. For the reasons that follow, we affirm.



                           I.     Facts and Procedural Background

       {¶ 2} On May 18, 2018, Ohio State Trooper Jason Hutchinson was on routine

patrol driving northbound on Interstate 75. His dashboard camera was activated. At

approximately 5:00 p.m., Hutchinson was traveling behind a dark pickup truck.               As

Hutchinson began to drive onto an exit ramp, he noticed a vehicle in front of the truck

enter the exit ramp “a little late” without signaling. Tr. p. 12. Hutchinson then observed

the vehicle cross over the lane line onto the shoulder of the exit ramp. The vehicle then

quickly moved to the left, through the right lane, and entered the middle lane of the ramp

directly in front of Hutchinson’s cruiser. The vehicle proceeded to make a slow left turn

off the ramp and onto the right shoulder of National Road. The vehicle then came back

into the lane of travel directly in front of the cruiser. At this point, Hutchinson initiated a

traffic stop.

       {¶ 3} As Hutchinson approached the passenger side window of the vehicle, he saw

the driver, later identified as Murray, fumbling through some papers.            Without any

prompting, Murray gave Hutchinson a document that he claimed was his registration.

Hutchinson informed him that the document was his insurance card. Hutchinson noted

the smell of alcohol emanating from the vehicle. He also noted that Murray’s speech
                                                                                        -3-


was slow and slurred. When asked, Murray denied having ingested alcohol. Murray

then indicated that he had just been released from the hospital and stated that “they had

IV’s all over me.” State’s Exh. 1 (dashboard camera video). Hutchinson asked Murray

if he was on any medications, and Murray stated that he was taking medications.

Hutchinson then asked Murray whether he was permitted to drive while taking the

medications. Murray again indicated that he had been in the hospital and that a new

medication had been prescribed.          Hutchinson again asked whether Murray was

permitted to drive while on the medication, and Murray stated that he was. Murray then

stated that he was instructed to determine the medication’s effect upon him before driving.

At this point, Hutchinson asked Murray to step out of his vehicle and stand by the front of

the cruiser. Hutchinson noted that Murray’s eyes were “glossy.” Tr. p. 20.

       {¶ 4} Once removed from the vehicle, Hutchinson detected an odor of alcohol

emanating from Murray.         Murray again denied ingesting alcohol that day.    He then

stated that he had consumed alcohol the previous day, when, supposedly, he had been

hospitalized, and that he was on his way to purchase more alcohol. Hutchinson asked

Murray to remove his glasses and asked Murray whether he had any problems with his

eyes. Murray denied any issues with his eyes and acknowledged that he had no difficulty

following objects with his eyes.       Hutchinson then administered the HGN test and

determined that Murray had six points, or clues, which is the maximum number for the

test, indicating impairment.

       {¶ 5} Thereafter, Hutchinson observed that Murray had bruising on his body and

that he was shaking. Hutchinson asked Murray if he had anything wrong with his legs,

and Murray replied that he was shaky and had just been released from a ten-day
                                                                                         -4-


hospital/rehab stay.     Based upon Murray’s condition, Hutchinson decided not to

administer the walk-and turn or the one-leg stand test, because he did not think Murray

could perform them. Murray was then placed under arrest. Hutchinson transported

Murray to the State Highway Post where a blood alcohol content (BAC) test was

administered. The test, which was conducted at 6:15 p.m., indicated a blood alcohol

content of .151.

         {¶ 6} On November 8, 2018, Murray was indicted as follows: Count I, operating

a vehicle under the influence (OVI) (prior felony) in violation of R.C. 4511.19(A)(1)(d) and

(G)(1)(e); Count II, operating a vehicle under the influence (prior felony) in violation of

R.C. 4511.19(A)(1)(a) and (G)(1)(e); Count III, operating a motor vehicle while under the

influence in violation of R.C. 4511.09(A)(1)(d) and (G)(1)(d); and Count IV, operating a

vehicle while under the influence in violation of 4511.19(A)(1)(a) and (G)(1)(d).       On

December 14, 2018, Murray filed a motion to suppress and a motion to dismiss counts I

and II. In support of the motion to dismiss, Murray noted that the State, in charging him

with OVI with a prior felony, had mistakenly relied upon a prior conviction in Montgomery

C.P. No. 2004 CR 3792, which involved Kevin L. Murray rather than this defendant Kevin

M. Murray. The State acknowledged the mistake and the trial court dismissed counts I

and II. The matter proceeded to a hearing on the motion to suppress. Following the

hearing, the trial court overruled the motion.

         {¶ 7} On April 4, 2019, Murray entered a plea of no contest to Count III, and as

part of the plea agreement, the State dismissed Count IV. However, the trial court later

vacated the plea upon learning that Murray had been intoxicated at the time of the plea.1


1
    According to the record, approximately 20 minutes after entering his plea, Murray met
                                                                                            -5-


Thereafter, a second plea hearing was conducted and Murray again entered a plea of no

contest to Count III; Count IV was dismissed. Murray was found guilty and sentenced to

community control, including 90 days in jail.        Murray appeals from his conviction,

challenging the denial of his motion to suppress.



                            II.     Reasonable Suspicion Analysis

       {¶ 8} Murray’s first assignment of error states:

       THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY FOR OVI

       WHEN THE TROOPER LACKED REASONABLE SUSPICION TO

       PERFORM FIELD SOBRIETY TESTS ON APPELLANT.

       {¶ 9} Murray contends that the trial court erred in concluding that the arresting

officer had a reasonable, articulable suspicion to justify conducting the HGN field test.

       {¶ 10} Although not stated as such, Murray’s argument necessarily implies that the

trial court erred by failing to grant his motion to suppress. Thus, we begin with the

standard of review regarding a motion to suppress. An appellate court’s review of a

suppression decision involves a mixed question of law and fact. State v. Lennon, 8th

Dist. Cuyahoga No. 104344, 2017-Ohio-2753, ¶ 45, 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 trier of fact and is in the best position to resolve questions

of fact and evaluate witness credibility.” (Citation omitted.) Burnside, ¶ 8. Thus, a



with his pretrial services officer, who noted that he had a strong odor of alcohol. The
officer conducted a blood alcohol content test which showed he “tested at .307.” Tr. p.
86. The trial court noted that Murray “seemed quite functional” at the time of the plea.
Id.
                                                                                              -6-


reviewing court “must accept the trial court's findings of fact in ruling on a motion to

suppress if the findings are supported by competent, credible evidence. * * * Accepting

the facts as true, the appellate court then must independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the applicable legal

standard.”     Id.   See also State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74

N.E.3d 319, ¶ 100. With this standard in mind, we now turn to the issue of the propriety

of the initial traffic stop.

        {¶ 11} “The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution guarantee the right to be free from unreasonable

searches and seizures.” (Citation omitted.) State v. Mays, 119 Ohio St.3d 406, 2008-

Ohio-4539, 894 N.E.2d 1204, ¶ 7-8. “The United States Supreme Court has stated that

a traffic stop is constitutionally valid if an officer has a reasonable and articulable suspicion

that a motorist has committed, is committing, or is about to commit a crime.” (Citations

omitted.) Id. “Further, ‘[t]he propriety of an investigative stop by a police officer must

be viewed in light of the totality of the surrounding circumstances.’ ” Id., quoting State v.

Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), at paragraph one of the syllabus.

“Therefore, if an officer's decision to stop a motorist for a criminal violation, including a

traffic violation, is prompted by a reasonable and articulable suspicion considering all the

circumstances, then the stop is constitutionally valid.” Id.

        {¶ 12} In Ohio, it is well established that an officer may stop a motorist upon his or

her observation of a traffic violation. Dayton v. Erickson, 76 Ohio St.3d 3, 11-12, 665

N.E.2d 1091 (1996). “[E]ven a de minimis traffic violation provides probable cause for a

traffic stop.” Id. at 9. Specific to this case, “a traffic stop is constitutionally valid when a
                                                                                        -7-


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 ¶ 25.

Here, Hutchinson testified and the dashboard video confirmed that he observed Murray

enter the exit ramp late and without a signal. Hutchinson then observed Murray cross

onto the right shoulder as he traveled up the exit ramp. Murray then shifted back into

the right-hand lane before switching into the middle lane immediately in front of

Hutchinson’s cruiser. After making a slow left turn off the ramp, Murray’s entire vehicle

entered the right shoulder of National Road. The vehicle then moved left and entered

the right-hand lane immediately in front of the cruiser. We agree with the trial court’s

determination that Hutchinson made a constitutionally valid stop under these

circumstances.

       {¶ 13} However, the mere fact that a driver has been lawfully stopped does not

permit an officer to administer field sobriety tests unless this invasion of privacy is

separately justified by a reasonable suspicion based upon articulable facts that the driver

is impaired. State v. Santiago, 195 Ohio App.3d 649, 2011-Ohio-5292, 961 N.E.2d 264,

¶ 11 (2d Dist.). “Thus, an analysis of an investigatory stop leading to an arrest requires

careful attention to each stage of the detention in order to make sure that the extent of

the intrusion represented by each stage is warranted by the officer's reasonable and

articulable suspicion at that point.” State v. Spillers, 2d Dist. Darke No. 1504, 2000 WL

299550, *3 (Mar. 24, 2000).

       {¶ 14} Following the stop, Hutchinson observed Murray fumbling with papers

before voluntarily offering a document he identified as his registration. Hutchinson noted

the document was actually Murray’s proof of insurance. Hutchinson also noted the odor
                                                                                            -8-


of alcohol coming from the vehicle and then, after Murray’s removal from the vehicle, from

Murray.    Hutchinson noted that Murray’s speech was slow and slurred.                 Murray

additionally admitted that he was taking a new medication and that he was instructed to

determine its effect upon him before driving.

       {¶ 15} In light of this admission, Murray’s traffic violations, the smell of alcohol

emanating from the vehicle and later from Murray’s person, his slurred speech, his lack

of dexterity, and the misidentification of his insurance card, we cannot find that the trial

court erred in concluding that Hutchinson had a reasonable, articulable suspicion of an

OVI offense justifying the administration of the field sobriety test.

       {¶ 16} Accordingly, the first assignment of error is overruled.



                                III.    Probable Cause Analysis

       {¶ 17} Murray’s second assignment of error is as follows:

       THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY FOR OVI

       BECAUSE THE TROOPER LACKED PROBABLE CAUSE TO ARREST

       APPELLANT AFTER FAILING TO PROPERLY ADMINISTER ONLY ONE

       FIELD SOBRIETY TEST, THE HGN.

       {¶ 18} Murray contends that the trial court erred in finding that Hutchinson had

probable cause to place him under arrest. In support, Murray claims Hutchinson did not

perform the HGN test in substantial compliance with the 2013 National Highway Traffic

Safety Administration (“NHTSA”) standards.

       {¶ 19} The results of field sobriety tests are admissible at trial if the State presents

clear and convincing evidence that the officer administered the tests in substantial
                                                                                         -9-


compliance with the NHTSA standards. R.C. 4511.19(D)(4)(b).          The State may satisfy

its burden without explicit testimony from the officer that he or she substantially complied

with NHTSA standards in administering the tests. State v. Reed, 2d Dist. Montgomery

No. 23357, 2010-Ohio-299, ¶ 53. The State is also not required to actually introduce the

NHTSA manual or testimony concerning the standards as long as the record

demonstrates, if only by inference, that the court took judicial notice of the NHTSA

standards.2 Id. Evidence showing that the pertinent rules and regulations have been

followed in conducting field sobriety tests, if unchallenged, constitutes a sufficient

foundation for admission of the test results. State v. Murray, 2d Dist. Greene No. 2002-

CA-10, 2002-Ohio-4809, ¶ 11.        But, when a defendant sufficiently challenges the

evidence, the State is required to present more particular evidence of compliance. Id.

       {¶ 20} The NHTSA manual sets forth guidelines and mandates for performing the

HGN test. To perform the HGN test, an officer holds a stimulus (generally a pen) 12 to

15 inches away from an individual's face, and the individual is directed to follow the

stimulus with his or her eyes. The first portion of the test determines if the eyes have a

lack of smooth pursuit, i.e., do not follow the stimulus or bounce around. The second

part of the test measures sustained nystagmus, bouncing or jerking of the eyes, at

maximum deviation, and the third is onset of nystagmus prior to 45 degrees. The NHTSA

protocol articulates certain approximate and required time requirements for the three

phases of the exam. Specifically, when checking for distinct nystagmus at maximum

deviation, the examiner must hold the stimulus at maximum deviation for a minimum of



2
 The parties submitted an electronic version of the NHTSA’s HGN standards as a Joint
Exhibit.
                                                                                         -10-


four seconds. But when checking for smooth pursuit, the time to complete the tracking of

one eye should take approximately four seconds, and when checking for the onset of

nystagmus prior to 45 degrees, the tracking time left to right should also be approximately

four seconds.

       {¶ 21} At the suppression hearing, Hutchinson testified that he received alcohol

detection training by the Ohio State Highway Patrol Academy. He also testified that as

a State Highway Patrol Officer, he receives alcohol detection training updates.

Hutchinson explained that the HGN test training is conducted pursuant to the NHTSA

standards and described how to conduct the test and the clues that indicate intoxication.

The administration of the test can be seen on the dashboard camera video. Hutchinson

testified that in conducting the test on Murray, he first ensured that both of Murray's eyes

were equally tracking a stimulus in order to rule out any type of head injury. Hutchinson

then explained in detail how he administered the HGN test to Murray, including a

description of the six clues that indicate whether a person is impaired and how appellant

displayed all six indicators of intoxication.3 Hutchinson testified that he observed in both

eyes lack of smooth pursuit, nystagmus at maximum deviation, and onset of nystagmus

before 45 degrees. He testified that he performed each test twice on each eye, and that

conducting the test took approximately 60 seconds. This testimony, in most respects, is

corroborated by Exhibit I.

       {¶ 22} Murray’s challenges to the HGN test on appeal are as follows: (1) that

Hutchinson “failed to demonstrate * * * he gave the proper instructions to Murray prior to



3
  Under the HGN protocol, four out of six clues indicates impairment, and, thus, a failed
test.
                                                                                        -11-


commencement of the HGN test”; (2) Hutchinson “performed the entire HGN test 11

seconds faster than the minimum time required pursuant to NHTSA guidelines”; and (3)

Hutchinson’s “testimony indicates that he moved too quickly in the administration of the

three individual portions of the HGN test.” On the whole, we disagree.

      {¶ 23} The HGN protocol advises the test administrator to instruct the subject to

keep his or her head still and to follow the stimulus with his or her eyes only. Murray

suggests Hutchinson did not provide this instruction, but our review of the video indicates

otherwise. Hutchinson adequately instructed Murray concerning the testing procedure,

and the record does not indicate that Murray was unable to perform the test. Further,

Hutchinson testified that Murray’s “equal pupil size and equal [stimulus] tracking rule[d]

out any type of head injury” that could compromise the test. In short, there is nothing in

the record to suggest that the HGN test results were affected by Murray’s physical

condition or inadequate instruction.

      {¶ 24} Without any case citations, Murray asserts that “case law” establishes the

minimum time to conduct the HGN test is 68 seconds. Murray asserts that Hutchinson

completed the test in 57 seconds, and, from this, argues a failure of substantial

compliance.    But, as noted by the State, the full testing protocol includes the

discretionary vertical gage nystagmus (VGN) test,4 which Hutchinson did not perform.

The record does not establish how long it takes to perform the VGN test, which makes it

impossible to conclude that the 11 second difference between 68 seconds and 57

seconds indicates a failure of substantial compliance. Further, and more importantly, the



4
  Assuming impairment has otherwise been demonstrated, the VGN test is administered
to determine the extent of the impairment.
                                                                                     -12-


HGN standard does not include a time of completion guideline or mandate. Instead,

there are guidelines or mandates regarding how long the stimulus needs to be held during

each portion of the test. Based upon our review of the video, we conclude that the time

it took Hutchinson to complete the test (approximately 60 seconds) did not demonstrate

a lack of substantial compliance.

      {¶ 25} The HGN standards articulate time guidelines for the “smooth pursuit” and

“nystagmus onset before 45 degrees” testing.           These guidelines set forth the

approximate speed at which the stimulus should be moved and the approximate amount

of time the stimulus should be held. The video reveals substantial compliance with these

guidelines.

      {¶ 26} Turning to the “nystagmus at maximum deviation” test, the HGN standard

dictates that the stimulus must be held for at least four seconds at maximum deviation.

Hutchinson arguably did not hold the stimulus for the mandated 4 seconds. But even if

the maximum deviation result were removed from the analysis, the record reflects 4

impairment clues, which was sufficient to establish probable cause to arrest for an OVI

violation. State v. Taylor, 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, ¶ 8, fn. 3.

Thus, assuming Hutchinson did not substantially comply with the “nystagmus at maximum

deviation” test, the record nonetheless allows a substantial compliance determination.

      {¶ 27} We conclude that the HGN test, in conjunction with Murray’s driving, his

slow and slurred speech, the odor of alcohol, his glossy eyes, the fumbled with and

misidentified insurance card, and his admission to taking a medication that might affect

his driving ability provided probable cause to arrest Murray for an OVI offense.

      {¶ 28} The trial court did not err in denying Murray’s motion to suppress. Thus,
                                                                                     -13-


the second assignment of error is overruled.



                                     IV.       Conclusion

       {¶ 29} Both of Murray’s assignments of error being overruled, the judgment of the

trial court is affirmed.



                                    .............



FROELICH, J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Michael P. Allen
Thomas M. Kollin
Hon. Mary Katherine Huffman
