[Cite as Rocky River v. Brenner, 2015-Ohio-103.]




                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 101253



                                      CITY OF ROCKY RIVER

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                      NICHOLAS A. BRENNER

                                                                DEFENDANT-APPELLANT




                                       JUDGMENT:
                         AFFIRMED IN PART AND REVERSED IN PART



                                      Criminal Appeal from the
                                     Rocky River Municipal Court
                                       Case No. 13 TRC 03465

        BEFORE:          Jones, P.J., Keough, J., and Stewart, J.

        RELEASED AND JOURNALIZED: January 15, 2015
ATTORNEY FOR APPELLANT

John T. Forristal
P.O. Box 16832
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Andrew D. Bemer
Rocky River Law Director

BY: Michael J. O’Shea
Assistant Law Director - Prosecutor
Rocky River Law Department
21012 Hilliard Boulevard
Rocky River, Ohio 44116

Michael J. O’Shea
O’Shea & Associates Co., L.P.A.
19300 Detroit Road, Suite 202
Rocky River, Ohio 44116




LARRY A. JONES, SR., P.J.:
          {¶1} Defendant-appellant, Nicholas Brenner, appeals the trial court’s decision to deny his

motion to suppress. We affirm in part and reverse in part.

          {¶2} In 2013, Brenner was charged with speeding, operating a vehicle while intoxicated

(“OVI”), and driving under an OVI suspension.             He was later charged with driving an

automobile with a prohibited blood alcohol level (“BAC violation”). He filed two motions to

suppress, and the trial court held two hearings on the motions. The trial court subsequently

denied both motions.

          {¶3} The following apposite facts were adduced at the motion hearings and from the

record.

          {¶4} On April 7, 2013, at approximately 2:20 a.m., Rocky River Police Officer Matthew

Rancourt observed a vehicle traveling at a speed that appeared to be higher than the posted speed

limit of 25 m.p.h. on Detroit Road in Rocky River. The officer positioned his cruiser behind the

car and paced the car traveling 35 m.p.h. in the 25 m.p.h. zone. Patrolman Rancourt ran the

license plate and determined that the vehicle owner had a suspended license due to a previous

OVI conviction.

          {¶5} Patrolman Rancourt initiated a traffic stop of the vehicle for the speed violation and

driving under an OVI suspension. The officer testified that after he activated his overhead

lights, the driver took an unusually long time to pull over. The dashcam in the crusier was

activated when the officer turned on his overhead lights, but the audio on the dashcam was not

working.

          {¶6} Patrolman Rancourt identified the driver as Brenner, who was also the registered

owner of the car. While speaking to Brenner, Patrolman Rancourt could smell an odor of

alcoholic beverage “on or around” him and noticed that Brenner’s eyes were bloodshot and
glassy. Brenner told the officer he had just come from a bar and was aware that his driving

privileges were suspended. Brenner admitted to drinking three beers while at the bar.

       {¶7} Patrolman Rancourt suspected that Brenner might be under the influence of alcohol,

so he requested backup and asked Brenner to exit his vehicle for field sobriety testing.       The

dashcam video did not capture most of the field sobriety testing.

       {¶8} Patrolman Rancourt testified that he began by administering the horizontal gaze

nystagmus (“HGN”) test. Patrolman Rancourt testified how he had been trained to administer

the test. Based on the results of the HGN test, Brenner displayed six out of a possible six

indicators that his level of intoxication was above the legal limit.       Patrolman Rancourt next

administered the one-leg stand test.    At first, Brenner had difficulty maintaining his balance so

he asked to move to another location and was then able to pass the test.

       {¶9} Patrolman Rancourt then had Brenner perform the walk-and-turn test.         Patrolman

Rancourt testified that it takes two mistakes to fail the walk-and-turn test, which Brenner failed

when he took 10 steps forward, instead of nine, and made an incorrect turn.             Patrolman

Rancourt placed Brenner under arrest.

       {¶10} Patrolman Rancourt transported Brenner back to the station for processing and

breath alcohol testing.   An officer prepared the Intoxilyzer 8000 alcohol breath testing machine

while Patrolman Rancourt went over the standard form, the BMV-2255, with Brenner.

Patrolman Rancourt was not certified to administer breath alcohol tests on the Intoxilyzer 8000

machine. Patrolman Pavia performed the breath test and the machine registered Brenner’s

blood alcohol level above the legal limit.

       {¶11} Patrolman Rancourt testified that in addition to the blood alcohol reading that the

officer administering the test can see on the screen of the Intoxilyzer 8000, the machine
usually prints out the BMV- 2255 form with the BAC results filled in. The machine also sends

an electronic copy of the results to the Ohio Department of Health (“ODH”), and the police

department can access those results within a few days to weeks after the test is administered.

           {¶12} On the evening of Brenner’s test, the printer attached to the Intoxilyzer 8000 was

not working and was not able to print out the results of the test.      Patrolman Rancourt manually

filled out the BMV-2255 form, but wrote “malfunction” on the line designated for the BAC test

results.     He testified that just the printer, not the machine itself, malfunctioned, so he indicated

on the original charging ticket “malfunction of Intoxilyzer” and did not cite Brenner with a BAC

violation.     According to Patrolman Rancourt, although the machine’s screen indicated that

Brenner’s BAC was above the legal limit, “without the actual printout, I didn’t feel comfortable

writing the citation until I had the * * * results from the machine.” Patrolman Rancourt did not

see the BAC results himself on the machine’s screen, and testified that he remembered them

being above the legal limit, but did not remember the exact number.

           {¶13} The police report, which was part of the trial court record, indicated:

           Brenner provided a sample at that time voluntarily, however, the Intoxilyzer 8000

           malfunctioned, and the results of the breath test were not printed. * * * Ptl Pavia

           advised me [Pt. Rancourt] that he observed that both breath samples that Brenner

           provided were measured above a .130 BAC, however he could not recall the exact

           numbers.

           {¶14} Lieutenant Craters testified that he was the head of the detective bureau and “took

care of the technology portion of the department’s internal network.” He explained that the

printer attached to the Intoxilyzer 8000’s printer was installed by the ODH but was the same as a

standard printer used by the police department for their network.          Lieutenant Craters testified
that although he was not a certified operator on the Intoxilyzer 8000 and was off-duty when

Brenner was arrested, based on his knowledge, the results of the tests were transmitted to the

ODH. He further testified that the results from the state indicated that the machine performed a

proper test.

        {¶15} Sergeant Kirk Bunner testified that he is certified to operate the Intoxilyzer 8000,

but did not take part in Brenner’s testing.   He came into the testing room after he found out the

printer was not functioning properly, but was not able to get the printer to work.     The printer

was taken out of service until the ODH fixed it and the next OVI suspect, arrested the same day,

was taken to another city for alcohol breath testing.

        {¶16} The police received the results of the breath test from ODH on June 17, 2013,

which showed that Brenner’s BAC was .132. The police then cited Brenner with a BAC

violation.

        {¶17} Brenner filed two motions to suppress. The first one challenged his OVI charge.

The second motion to suppress challenged whether the malfunctioning printer rendered the

results from the Intoxilyzer 8000 inadmissible.

        {¶18} The trial court issued a written opinion with findings of fact and conclusions of

law, denying both motions to suppress.          Brenner subsequently entered a plea of no contest

to the charges and the trial court sentenced him to 180 days in jail, with 170 days suspended,

suspended his license, placed him on three years of probation, and issued fines. The trial court

stayed his sentence pending appeal.

        {¶19} Brenner raises the following assignments of error for our review:

        I. The trial court erred when it denied defendant’s first motion to suppress * * *
        that challenged, inter alia, the officer’s probable cause for the arrest.

        II.    The trial court erred when it denied defendant’s second motion to suppress *
       * * that challenged the breath test results from the Rocky River police

       department’s Intoxilyzer 8000.



                                        Standard of Review

       {¶20} Appellate review of a trial court’s decision regarding a motion to suppress evidence

involves mixed questions of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d

1 (4th Dist.1998). When ruling on a motion to suppress evidence, a trial court assumes the role

of trier of fact and is in the best position to resolve questions of fact and to evaluate the

credibility of witnesses. State v. Treesh, 90 Ohio St.3d 460, 472, 739 N.E.2d 749 (2001).

Accordingly, reviewing courts must defer to the trial court findings of fact if competent, credible

evidence exists to support the findings.   State v. Dunlap, 73 Ohio St.3d 308, 314, 652 N.E.2d

988 (1995). A reviewing court then must independently determine, without deference to the

trial court, whether the trial court properly applied the substantive law to the facts of the case.

Long at 332.

                                   Traffic Stop and OVI Arrest

       {¶21} In the first assignment of error, Brenner argues that the police officer did not have

reasonable suspicion to pull him over or probable cause to arrest him.

       {¶22} It is well-settled that “[w]here an officer has an articulable reasonable suspicion or

probable cause to stop a motorist for any criminal violation, including a minor traffic violation,

the stop is constitutionally valid * * *.” Dayton v. Erickson, 76 Ohio St.3d 3, 11,    665 N.E.2d

1091 (1996).

       {¶23} Patrolman Rancourt testified that he first observed Brenner speeding and paced

him going 35 m.p.h. in a 25 m.p.h. zone. He also ran his “LEADS” report, which showed that
he had a suspended license.

        {¶24} Brenner challenges the police officer’s visual estimation of his speed, calling it

unreliable. In Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, the

Ohio Supreme Court held:

        A police officer’s unaided visual estimation of a vehicle’s speed is sufficient
        evidence to support a conviction for speeding in violation of R.C. 4511.21(D)
        without independent verification of the vehicle’s speed if the officer is trained, is
        certified by the Ohio Peace Officer Training Academy or a similar organization
        that develops and implements training programs to meet the needs of
        law-enforcement professionals and the communities they serve, and is
        experienced in visually estimating vehicle speed.

Id. at syllabus.

        {¶25} In State v. Woods, 2012-Ohio-5509, 982 N.E.2d 1305 (8th Dist.), this court,

relying on Jenney, upheld a motion to suppress when the testifying officers, who paced the

defendant’s car for a couple of blocks before pulling him over for speeding, never testified about

their training, certification, and experience in visually estimating vehicle speed. The trial court

had found, in part, that the police officers did not have sufficient time or distance to use pacing as

a reasonable means to determine the speed of the defendant’s vehicle because they followed him

for such a short distance. Id. at ¶ 22-25.

        {¶26} Likewise, in this case, Patrolman Rancourt testified about his general training but

did not testify about his training, certification, or experience in visually estimating vehicle speed.

 He also paced Brenner for only “about 20 seconds.” Therefore, Patrolman Rancourt’s visual

estimation of Brenner’s speed does not meet the Jenney standard.

        {¶27} Our analysis does not end here, however, because Patrolman Rancourt also testified

that he pulled Brenner over because he was driving under a suspended license. The trial court

found that Patrolman Rancourt ran Brenner’s LEADS, which showed Brenner’s license
suspension, before he initiated the traffic stop.      Although Brenner argues that Patrolman

Rancourt’s testimony “casts doubt” on the conclusion that he got the results of the LEADS

printout before pulling Brenner over, the court was in the best position to evaluate the credibility

of the officer’s testimony on this point, and we decline to substitute our judgment for that of the

trial court. See State v. Mills, 62 Ohio St.3d 357, 582 N.E.2d 972 (1992); State v. Fanning, 1

Ohio St.3d 19, 437 N.E.2d 583 (1982). Therefore, we find that the initial stop was lawful.

       {¶28} Brenner also argues that the police did not have probable cause to arrest him for

OVI.    As an initial matter, Brenner claims the officer did not have enough            reasonable

suspicion that he was impaired to conduct field sobriety tests and the tests the officer conducted

did not comport with the National Highway Traffic Safety Administration’s (“NHTSA”)

guidelines. We disagree with both claims.

       {¶29} Once a police officer has stopped a vehicle for even a minor traffic offense and

begins the process of obtaining the offender’s license and registration, the officer may then

proceed to investigate the detainee for driving under the influence if the officer ‘“has a

reasonable suspicion that the detainee may be intoxicated based on specific and articulable facts,

such as where there were clear symptoms that the detainee is intoxicated.”’         State v. Evans,

127 Ohio App.3d 56, 63, 711 N.E.2d 761 (11th Dist.1998), quoting State v. Yemma, 11th Dist.

Portage No. 95-P-0156, 1996 Ohio App. LEXIS 3361, *8 (Aug. 9, 1996).

       {¶30} In this case, Patrolman Rancourt testified that Brenner had glassy and bloodshot

eyes and he could smell alcohol emanating from “on or around” him. Brenner was driving over

the speed limit, around closing time for bars and under a suspended license. He admitted to

being at a bar and consuming three beers. Therefore, we agree with the trial court’s assessment

that the officer had adequate reasonable suspicion to require Brenner to perform field sobriety
tests.

         {¶31}   Next, a prosecutor must show by clear and convincing evidence that a law

enforcement officer has administered a field sobriety test in “substantial compliance” with the

testing standards in order for the test to be admitted into evidence. R.C. 4511.19(D)(4)(b).

“The state may demonstrate substantial compliance with the NHTSA standards ‘through

competent testimony and/or introducing the applicable portions of the NHTSA manual.”’        State

v. Maloney, 11th Dist. Geauga No. 2007-G-2788, 2008-Ohio-1492, ¶ 39, quoting State v.

Barnett, 11th Dist. Portage No. 2006-P-0117, 2007-Ohio-4954, ¶ 22.

         {¶32} Brenner claims that the city was unable to show that Patrolman Rancourt was in

compliance because the dashcam videotape of the stop did not show that the officer was in

compliance with the guidelines and because there was no audio on the tape. We disagree.

         {¶33} As previously noted, the dashcam video did not capture most of the field sobriety

tests.   Therefore, the court had to rely on Patrolman Rancourt’s testimony.          The officer

testified that he had been trained on the NHTSA guidelines, had conducted between 50 and 100

field sobriety tests in the past, and had Brenner perform the HGN, one-leg stand, and

walk-and-turn tests within the NHTSA guidelines. We find no evidence that he conducted the

tests outside of NHTSA guidelines, other than Brenner’s self-serving interpretation of a small

portion of the dashcam video.       Therefore, the court was correct in finding that Patrolman

Rancourt was in substantial compliance with NHTSA guidelines.

         {¶34} Moreover, the trial court was in the best position to evaluate the evidence and we

will not usurp its role.   The trial court found the following supported a probable cause finding:

Brenner was slow to stop his vehicle; he admitted he was coming from a bar and had consumed

three beers; the time of night (2:20 a.m.); driving under an OVI suspension; bloodshot and glassy
eyes; the smell of alcohol emanating from his car; and in light of the results of his field sobriety

test.1

         {¶35} We agree with the trial court and find that the officer had probable cause to arrest

Brenner for OVI and the trial court did not err in overruling Brenner’s first motion to suppress.

         {¶36} The first assignment of error is overruled.

                                               Intoxilyzer 8000

         {¶37} In the second assignment of error, Brenner argues that the trial court erred when it

denied his second motion to suppress, which challenged the Intoxilyzer 8000 breath test results.

In this motion to suppress, Brenner raised three issues specific to the Intoxilyzer 8000: (1) the

police were not in strict compliance with ODH regulations; (2) the testing officer was not

authorized to perform the test;2 and (3) the Intoxilyzer 8000 is not reasonably reliable and/or the

specific machine used in his test was not working properly.

Background

         {¶38} An accused defending a charge that he or she operated a motor vehicle with a

prohibited level of alcohol in his or her breath may not attack the general scientific reliability of

breath-alcohol tests that have been conducted in accordance with methods approved by the

director of ODH. See generally State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984).

But, recently, in Cincinnati v. Ilg, 141 Ohio St.3d 22, 2014-Ohio-4258, 21 N.E.3d 378, the Ohio

Supreme Court clarified that while a generalized attack is not allowed, an accused is not

precluded from attacking the reliability of the specific breath-testing machine that measured his

or her blood-alcohol concentration. Id. at ¶ 31.

1
The trial court also found that Brenner’s speed supported a probable cause finding.
2
 Although Brenner raised the issue of whether the operator of the Intoxilyzer 8000 had the proper permit or access
card at the second motion hearing, he does not raise it on appeal; therefore, we will not address this issue.
        {¶39} In Ilg, the court explained that challenges to specific machines or specific test

results, including the manner the test was conducted, the timing of the test, and the proper

operation of the specific machine that was used in the testing are not precluded.        Id. at ¶ 32.

Thus, an accused may challenge “the accuracy, competence, admissibility, relevance,

authenticity, or credibility of specific test results or whether the specific machine used to test the

accused operated properly at the time of the test.”   Id. at the syllabus.

        {¶40} The ODH has approved the Intoxilyzer 8000 as a reliable testing device for

determining the breath-alcohol concentration of an individual suspected of driving while under

the influence of alcohol.   See R.C. 4511.19(D)(1)(b); Ilg at ¶ 18. “As a result, breath tests

are given presumptive validity.”       Cleveland v. Evans, 8th Dist. Cuyahoga No. 100721,

2014-Ohio-4567, quoting State v. Hill, 4th Dist. Gallia No. 92 CA 30, 1993 Ohio App. LEXIS

2726, *5 (May 21, 1993).        But the testing itself must be conducted in accordance with

procedures adopted by the ODH.            State v. Butler, 5th Dist. Stark No. 2013CA00053,

2013-Ohio-4451, ¶ 16. The Ohio Supreme Court has held that absent a showing of prejudice by

the defendant, substantial, not rigid, compliance with ODH regulations is sufficient.        State v.

Plummer, 22 Ohio St.3d 292, 490 N.E.2d 902 (1986), syllabus. Every person accused of an

offense involving an Intoxilyzer 8000 machine may challenge the accuracy and credibility of a

breath test by showing that the breath-analyzer machine failed to operate properly at the time of

testing or that the results had not been analyzed in accordance with methods approved by the

director of ODH.

Ilg at ¶ 7.

        {¶41} Whether “[t]he bodily substance withdrawn [was] analyzed in accordance with

methods approved by the director of health,” is not a jury question and is to be decided by the
court prior to trial. State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752, ¶

20. To make that determination, a trial court may rely on hearsay and other evidence, even

though that evidence would not be admissible at trial. Edwards at ¶ 14, citing Maumee v.

Weisner, 87 Ohio St.3d 295, 298, 720 N.E.2d 507 (1999); Evid.R. 101(C). Thus, a trial court

may rely on hearsay and other evidence to determine whether alcohol test results were obtained

in compliance with methods approved by the director of health.          Edwards at ¶ 21.     For

example, in Edwards, the Ohio Supreme Court found that the magistrate at a suppression hearing

was not precluded from considering the test-solution certificate in photocopy form to determine

whether the state’s chemical results complied with ODH regulations even though the photocopy

did not comply with the rules of evidence.

Application to Case at Bar

       {¶42} The crux of Brenner’s argument is that the city had the burden to demonstrate that

Patrolman Pavia substantially complied with ODH regulations in testing the concentration of

alcohol on his breath and the trial court erred in finding that the city had made such a showing.

Brenner bases his claim on the following: (1) evidence of noncompliance with ODH regulations;

(2) the officer who performed the test did not testify at the hearing; and (3) Patrolman Rancourt

wrote “Intoxilyzer malfunction” on the ticket and did not charge Brenner with a BAC violation.

We will deal with each of these concerns in turn.

       {¶43} Brenner claims that he was able to show evidence of noncompliance with

applicable ODH regulations; therefore, evidence that he sought to offer for the purpose of

showing that the machine was not in good working order on the date of his test was relevant to

the admissibility of the test result. According to Brenner, the ODH’s testing manual, titled

“Intoxilyzer 8000 ODH Proficiency Test OH-5,” defines a “complete, successful subject test” as

one where the BAC results are printed. Because, Brenner argues, the printer in this case failed
to function, the methods approved by the director of health were not followed. We disagree.

According to the testimony given at the hearing, the proficiency manual is a testing manual used

by ODH to train operators of the Intoxilyzer 8000. The manual does not list a printed test result

as an ODH regulation.

       {¶44} That said, we do not find that the city showed that it was in substantial compliance

with ODH regulations. Patrolman Pavia was subpoenaed to testify at the suppression hearing,

but he did not appear to testify about the procedures he followed in performing the breath alcohol

test. Instead, the city relied on the testimony of three officers, none of whom were involved in

the actual testing and two of whom were not even certified to operate the machine.

       {¶45} Patrolman Rancourt testified that the test was performed correctly and it was the

printer, not the machine, that malfunctioned.   He stated that Brenner’s BAC results appeared on

the Intoxilyzer 8000’s screen but admitted he did not personally see the results and could not

remember the exact number, .132, that the machine displayed.       He also testified that the breath

test went through and the test itself was valid and done correctly, but he was not certified to

operate the machine.

       {¶46} Lieutenant Craters testified that the machine sent the results of Brenner’s test to

ODH and the results from ODH “indicated that the machine performed a proper test.” Lt.

Craters was also not a certified operator, nor did he explain how he knew that the results from

ODH “indicated that the machine performed a proper test.” We are further concerned with the

city’s reliance on the fact that the machine displays the test results on its screen when Patrolman

Pavia himself could not relay the exact number, .132, to Patrolman Rancourt.

       {¶47} We are cognizant of the latitude allowed in suppression hearings with regard to

reliance on hearsay and other evidence, but, in this case, the officers’ testimonies were lacking.
No officer testified as to how the city was in substantial compliance with ODH regulations in

performing the breath alcohol test. Patrolman Pavia, who was subpoenaed to appear, could

have testified as to the testing procedures to show that the city was in compliance with ODH

regulations. A representative from ODH could have testified with regard to concerns with that

specific machine’s and printer’s performance, test results transmission, and how the machine

“performed a proper test.”

       {¶48} Here, because Brenner offered evidence that raised the issue whether the specific

machine was operating properly, the city had the burden to show that it complied with ODH

regulations in conducting his breath alcohol test.   It failed to do so.

       {¶49} This case, however, does not stand for the proposition that every time a breath

alcohol testing device’s printer “malfunctions,” the test results are per se inadmissible as

evidence against an accused.      Under the unique circumstances presented by this case, the

testimony offered by the city did not establish that the police acted in substantial compliance with

ODH regulations in performing Brenner’s breath alcohol test. Therefore, the results of the

alcohol breath test should have been suppressed and the trial court erred in overruling Brenner’s

second motion to suppress.

       {¶50} The second assignment of error is sustained.

       {¶51} Judgment affirmed in part and reversed in part. Case remanded.         It is ordered

that appellant and appellee split the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Rocky River

Municipal Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR
