[Cite as State v. White, 2014-Ohio-555.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-13-27

        v.

LARRY L. WHITE,                                           OPINION

        DEFENDANT-APPELLANT.




                            Appeal from Lima Municipal Court
                              Trial Court No. 12 TRC 01916

                                      Judgment Affirmed

                           Date of Decision: February 18, 2014




APPEARANCES:

        Andrew R. Bucher for Appellant

        E. Richard Eddy, II for Appellee
Case No. 1-13-27


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Larry L. White brings this appeal from the

judgment of the Lima Municipal Court in Allen County, Ohio, denying in part his

motion to suppress evidence collected at an OVI (operation of a vehicle while

under the influence of alcohol) roadblock, on March 16, 2012. For the reasons

that follow we affirm the judgment of the trial court.

       {¶2} On March 16, 2012, between 9 p.m. and midnight, the Ohio State

Highway Patrol operated an OVI checkpoint in Allen County, Ohio. At around

10:14 p.m., White drove into the checkpoint and was approached by Trooper

Matthew Geer of the Ohio State Highway Patrol, Findlay post. Upon talking to

White, Trooper Geer noticed a strong odor of alcoholic beverage coming from

inside White’s vehicle and noticed that White’s face was flushed and his eyes

were bloodshot. (Mot. Hr’g Tr. at 8, July 13, 2012 and Sept. 4, 2012.) Trooper

Geer also recognized White to have slurred speech. (Id.) White admitted that he

had had about three beers that night. He was then asked to pull into the parking lot

and perform three field sobriety tests.        (Id. at 8-22.)   Based on White’s

performance on those tests, Trooper Geer believed that White was operating under

the influence of alcohol and placed him under arrest. (Id. at 22-24.)

       {¶3} Initially, White was placed in a police cruiser, but he was later moved

to a command center vehicle, “a trailer wherein a portable Intoxilyzer 8000 breath-


                                         -2-
Case No. 1-13-27


testing machine was located.” (Id. at 24; R. 24, J. Entry at 3.) Trooper Geer asked

White for his consent to submit to a chemical test and then read him the “BMV

2255” form. (Tr. at 24-25.) After this test showed that White was driving with a

prohibited concentration of alcohol in his system, he was issued a citation for

operating a vehicle under the influence of alcohol. (R. at 24, at 4.) White was

then released. (Id.)

       {¶4} White pled not guilty to the charges against him and filed a motion to

suppress, requesting that the trial court exclude the evidence obtained during his

warrantless seizure. (R. at 12.) White requested suppression of the following: (1)

coordination and/or sobriety tests; (2) alcohol and/or drug level tests; (3)

statements taken from or made by White; (4) White’s exercise of his right to

remain silent; (5) observations and opinions of the police officer(s) who stopped

and/or arrested and/or tested White; (6) results of the field sobriety tests performed

by White and/or video or audio recordings of the stop and tests. (R. at 12.) As

one of the reasons for his motion, White contended that the OVI roadblock was

unauthorized and therefore, the stop of his vehicle at the roadblock was

unconstitutional, violating his protection against unreasonable searches and

seizures. He further argued that even if the initial stop was valid, his arrest was

unconstitutional because the field sobriety tests that gave Trooper Geer probable

cause for the arrest did not comply with statutory requirements of R.C.


                                         -3-
Case No. 1-13-27


4511.19(D)(4)(B).     White also argued that the breath test was coerced and

improperly performed. He requested an oral hearing on the motion.

       {¶5} After conducting a two-day motion hearing, the trial court suppressed

evidence of one of the three field sobriety tests, but it overruled the motion to

suppress in all other respects. (R. at 24.) Subsequently, White entered a plea of

no contest and was found guilty of operating a vehicle while impaired and/or

operating a vehicle with a prohibited blood alcohol content in violation of R.C.

4511.19(A)(1)(a) and (A)(1)(d). (R. at 28, J. Entry OVI Sentence.) He was

subsequently sentenced but the sentence was stayed pending this appeal.

       {¶6} White now appeals the trial court’s denial of his motion to suppress

raising five assignments of error.

       I.    THE TRIAL COURT ERRED WHEN IT DETERMINED
             THE OVI ROADBLOCK USED TO STOP APPELLANT
             WAS CONSTITUTIONAL

       II.   THE TRIAL COURT ERRED WHEN IT DETERMINIEND
             [sic] THAT APPELLANT'S SUBMISSION TO THE
             BREATH TEST WAS NOT A PRODUCT OF COERCION

       III. THE TRIAL COURT ERRED WHEN IT DETERMINED
            THAT THE 20 MINUTE OBSERVATION PERIOD WAS
            SUBSTANTIALLY COMPLIED WITH

       IV. THE TRIAL COURT ERRED IN DETERMINING THAT
           THE BREATH TEST WAS PROPERLY ADMINISTERED
           AND ADMISSABLE [sic] AS THE DRY GAZ WAS
           EXPIRED



                                       -4-
Case No. 1-13-27


       V.   THE TRIAL COURT ERRED IN FINDING THERE WAS
            PROBABLE CAUSE TO ARREST MR. WHITE

                                 Standard of Review

       {¶7} Before addressing White’s assignments of error we note the applicable

standard of review. An appellate review of the trial court’s decision on a motion

to suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio

App.3d 46, 51, 735 N.E.2d 953 (3d Dist.). We will accept the trial court’s factual

findings if they are supported by competent, credible evidence because the

“evaluation of evidence and the credibility of witnesses” at the suppression

hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582

N.E.2d 972 (1992); Burnside, 2003-Ohio-5372, at ¶ 8; Norman, 136 Ohio App.3d

at 51. But we must independently determine, without deference to the trial court,

whether these factual findings satisfy the legal standard as a matter of law because

“the application of the law to the trial court’s findings of fact is subject to a de

novo standard of review.” Norman, 136 Ohio App.3d at 52; Burnside, 2003-Ohio-

5372, at ¶ 8.

       {¶8} With this standard in mind, we proceed to review the issues raised by

White as they pertain to the trial court’s denial of his motion to suppress.




                                         -5-
Case No. 1-13-27


      1. First Assignment of Error— Constitutionality of the OVI Roadblock

      {¶9} White contends that the OVI roadblock at issue was unconstitutional

because it was based on the request that was “supported only by a conclusory

statement, devoid of facts or empirical data, then approved by a higher divisions

[sic] of the highway patrol.” (App’t Br. at vi.) Therefore, White alleges that his

stop at the checkpoint and the subsequent arrest were in violation of the United

States Constitution and the Ohio Constitution.

      {¶10} The Ohio Supreme Court held that the constitutional provisions

affording protection against “unreasonable searches and seizures” are implicated

in cases involving a vehicle stop at a checkpoint “because a vehicle stop at a

highway checkpoint constitutes a ‘seizure’ within the meaning of the Ohio and

United States Constitutions.” State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d

1036 (2001); accord Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450,

110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (“a Fourth Amendment ‘seizure’ occurs

when a vehicle is stopped at a checkpoint”).       Yet, highway checkpoints or

roadblocks are not per se unconstitutional and they have been upheld by the

United States Supreme Court and the Ohio Supreme Court. See Sitz, 496 U.S.

444; Orr, 91 Ohio St.3d 389.

      {¶11} In 1990, the Supreme Court of the United States established a three-

pronged balancing test by which to determine the constitutionality of the sobriety


                                        -6-
Case No. 1-13-27


checkpoints. See Sitz, 496 U.S. 444. In 2001, the Ohio Supreme Court followed

the Supreme Court of the United States and other federal and state courts, and

applied the three-prong balancing test to a driver’s license checkpoint in Ohio,

noting that the same test is used for sobriety checkpoints and immigration

checkpoints. Orr, 91 Ohio St.3d at 392-393, following Sitz, 496 U.S. 444, United

States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976),

United States v. McFayden, 865 F.2d 1306 (D.C.Cir.1989), and State v. Cloukey,

486 A.2d 143 (Me.1985).                  Therefore based on Orr, the Ohio standard for

determining the constitutionality of a roadblock, requires a case-by-case

evaluation of “[1] the checkpoint’s intrusion on privacy, [2] the state’s interest in

maintaining the checkpoint, and [3] the extent to which the checkpoint advances

the state interest.” Id. at syllabus, 392-393.

         {¶12} In spite of this well-established standard, White claims in his brief

that “[a]n OVI Roadblock is tested for constitutionality in Ohio through the second

district four part test,” established in a 1984 Second Appellate District case, State

v. Goines, 16 Ohio App.3d 168, 474 N.E.2d 1219 (2d Dist.1984).1 (App’t Br. At

5.) The court in Goines quoted the Iowa Supreme Court’s holding:



1
  Attempting to boost the authority of Goines, White incorrectly states in his brief that this case, decided in
1984, utilized Sitz, the United States Supreme Court decision that was not decided until six years later, in
1990. (App’t Br. At 5.) He further misstates in his brief that the four-prong test quoted in Goines was
“recently outlined” in the Ohio Supreme Court’s decision State v. Orr, although Orr did not mention the
four-prong standard or the Goines opinion but rather, used the three-prong standard of Sitz, as discussed
above. (Id.)

                                                     -7-
Case No. 1-13-27


         Where there is no consent, probable cause, or Terry-type reasonable
         and articulable suspicion, a vehicle stop may be made only where
         there minimally exists (1) a checkpoint or roadblock location
         selected for its safety and visibility to oncoming motorists; (2)
         adequate advance warning signs, illuminated at night, timely
         informing approaching motorists of the nature of the impending
         intrusion; (3) uniformed officers and official vehicles in sufficient
         quantity and visibility to “show * * * the police power of the
         community;” and (4) a predetermination by policy-making
         administrative officers of the roadblock location, time, and
         procedures to be employed, pursuant to carefully formulated
         standards and neutral criteria.2

Id. at 170-171, quoting State v. Hilleshiem, 291 N.W.2d 314, 318 (Iowa 1980).

Alleging that the fourth element of the above standard is not satisfied in the

current case, White urges us to find the roadblock at issue unconstitutional.

         {¶13} We recognize that some Ohio courts have used the four-prong

analysis quoted in Goines to determine constitutionality of roadblocks or

checkpoints. For example, the First Appellate District expressly adopted the four-

prong test stating, albeit incorrectly, that it had been “adopted in Ohio by the

Second Appellate District,”3 and classifying it as “a more particular analysis to


2
  We note that the Second Appellate District in Goines did not expressly adopt the four-prong standard and
did not analyze the case under the four elements dictated therein although it did quote the Iowa Supreme
Court’s standard. Indeed, the facts, as stated in the Goines opinion, did not support the elements of the
four-prong test; yet, the appellate court affirmed the “designated checkpoint” in the case on the basis that
“[p]rivacy interests of all citizens must at times be surrendered to reasonable demands of society, e.g.,
public safety.” Goines, 16 Ohio App.3d at 172, citing United States v. Villamonte-Marquez, 462 U.S. 579,
103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). Therefore, this standard has not been “adopted” or “established,”
but merely quoted in Goines. Nevertheless, for ease of discussion, we will refer to the four-prong test
throughout this opinion as the “Goines test.”
3
  As explained in fn. 2, the Second Appellate District in Goines merely quoted and did not expressly adopt
or apply the four-prong Iowa Supreme Court’s standard from Hilleshiem. See Goines, 16 Ohio App.3d at
170-171, 172 (affirming the checkpoint in the case on the basis that “[p]rivacy interests of all citizens must
at times be surrendered to reasonable demands of society, e.g., public safety”).

                                                     -8-
Case No. 1-13-27


determine the constitutionality of sobriety checkpoints” than the three-part test

established by the United States Supreme Court in Sitz. State v. Williams, 181

Ohio App.3d 472, 2009-Ohio-970, 909 N.E.2d 667, ¶ 18 (1st Dist.). See also State

v. Park, 5th Dist. Licking No. 12-CA-25, 2012-Ohio-4069, ¶¶ 11-23; State v. Hall,

5th Dist. Ashland No. 03-COA-064, 2004-Ohio-3302, ¶¶ 18-25.

       {¶14} Conversely, other Ohio courts recognized the four-prong test from

Goines as an elaboration of the Orr test, or a useful tool for analyzing the intrusion

element in the three-prong balancing test, without holding that a failure to satisfy

the test is a constitutional violation. For example, the Tenth District Court of

Appeals held that “[i]n measuring the potential subjective impact upon motorists

of the checkpoint, we find useful the first three elements of the test set forth by the

Iowa Supreme Court and relied upon in Goines.” State v. Bauer, 99 Ohio App.3d

505, 512, 651 N.E.2d 46 (10th Dist.1994) (rejecting an idea that a checkpoint must

be publicized with information including “all the specifics of the checkpoint

locations and duration” in order to be constitutional). That district court also

stated that the Goines test provided “guidelines for determining interference with

personal liberties.” (Emphasis added.) State v. Nelson, 10th Dist. Franklin No.

01AP-699, 2002 WL 356317, *3.

       {¶15} Nevertheless, neither the United States Supreme Court nor the Ohio

Supreme Court adopted a similar analysis although they addressed the issue of


                                         -9-
Case No. 1-13-27


constitutionality of roadblocks after Goines and Hilleshiem. Therefore, we hold

that the proper test to be applied in this case is the three-prong case-by-case

balancing standard established in Orr and Sitz. Hence, the trial court was required

to evaluate the following three elements to determine whether the checkpoint

established by the Ohio State Highway Patrol was constitutional: (1) the

checkpoint’s intrusion on privacy, (2) the state’s interest in maintaining the

checkpoint, and (3) the extent to which the checkpoint advanced the state interest.

Orr, 91 Ohio St.3d 389, at syllabus, 392-393, citing Sitz, 496 U.S. 444. The trial

court applied this balancing standard to the case at issue and found that “the

stopping of an individual at the sobriety checkpoint in question constituted a

minimal intrusion into the privacy of the individual”; “[t]he State’s interest in

maintaining such a checkpoint is * * * the safety of the motoring public by taking

those persons operating vehicles under the influence of alcohol and/or drugs off

the roadway [and it] is a very important interest”; and that “[t]he interests of the

State of Ohio were met by this checkpoint.”4 (R. at 24, at 5.)

         {¶16} Under the applicable standard, we must review de novo whether the

three elements of the Orr balancing test weigh in favor of upholding the

constitutionality of the roadblock at issue. White does not dispute the trial court’s

4
  The trial court then recognized that the standard quoted in Goines had not been adopted in this appellate
district. Yet, the trial court found the standard persuasive and therefore, analyzed the current case under the
four-prong test as well, concluding that each of its elements was satisfied. (R. at 24, at 5-6.) Even though
we do not find the trial court’s analysis under Goines to be erroneous, we refuse to adopt the four-prong
test in a way suggested by White, as a means of testing constitutionality of an OVI roadblock in Ohio.

                                                    -10-
Case No. 1-13-27


conclusion as to the state’s important interest in maintaining an OVI checkpoint

and such interest has previously been found to satisfy the second prong of the

Orr/Sitz analysis. See Sitz, 496 U.S. at 451; Nelson, 2002 WL 356317, at *3; State

v. Eggleston, 109 Ohio App.3d 217, 224, 671 N.E.2d 1325 (2d Dist.1996).

Therefore, we also hold that the first prong weighs in favor of the checkpoint’s

validity.

       {¶17} Next, we address the third prong, which is the extent to which the

checkpoint advances the state interest, “determined by the effectiveness of the

roadblock.” Nelson, 2002 WL 356317, at *3; Orr, 91 Ohio St.3d at 394. The trial

court found that in support of this element was the fact that “more than just the

defendant were shepherded to the holding area after showing signs of impairment

for further testing in just a brief time that the defendant was being questioned and

tested.” (R. at 24, at 5.) This factual finding is supported by the record. (See

State’s Ex. B.)    Furthermore, checkpoints as a “system” have been found to

reasonably advance “the State’s interest in preventing drunken driving.” Sitz, 496

U.S. at 444-455 (recognizing expert testimony stating “that experience in other

States demonstrated that, on the whole, sobriety checkpoints resulted in drunken

driving arrests of around 1 percent of all motorists stopped”). Accordingly, the

third prong of the Orr analysis weighs in favor of the roadblock.




                                       -11-
Case No. 1-13-27


       {¶18} White’s main contention seems to go to the second prong of the Orr

test, the checkpoint’s intrusion on privacy, since the issue addressed by the four-

prong Goines test, and challenged by White, is the validity of the checkpoint

procedures as they limit the checkpoint’s intrusion on privacy. The United States

Supreme Court in Sitz “did not establish precise limits to the length and procedure

employed at an initial checkpoint stop.” Bauer, 99 Ohio App.3d at 511. Neither

did the Ohio Supreme Court in Orr adopt a precise standard for determining

whether the checkpoint was procedurally proper, even though the Goines opinion

and its four-prong standard predated Orr. Instead, the Sitz court evaluated the

guidelines governing checkpoint operation that minimized the discretion of the

officers on the scene, the brief duration of the stop, and the fact that uniformed

police officers stopped every approaching vehicle. Sitz, 496 U.S. at 451-453. The

court then concluded that the intrusion caused by the checkpoint was not

unreasonable. Id. at 451-453; see also Eggleston, 109 Ohio App.3d at 226-227

(“When evaluating the lawfulness of the checkpoint, we are most concerned with

the guidelines, duration, and intrusiveness of the initial stop. Sitz, supra.”). The

Ohio Supreme Court in Orr analyzed the specific procedures employed by the city

of Dayton without reference to “a predetermination by policy-making

administrative officers of the roadblock location, time, and procedures to be

employed, pursuant to carefully formulated standards and neutral criteria,” as


                                       -12-
Case No. 1-13-27


would be required under Goines and as White would like us to apply. See Orr, 91

Ohio St.3d at 393. Therefore, rather than adopting a rigid standard for analyzing

the intrusion on privacy in OVI roadblock cases, we will review the specific

procedures used by the Ohio State Highway Patrol and weigh them against the

state’s interest in preventing operating a vehicle under the influence.

       {¶19} The trial court made the following findings of fact regarding

procedures employed by the Ohio State Highway Patrol at their roadblock:

       The Court would find from the credible testimony presented that an
       OVI check point was set up under the direction of the Ohio State
       Highway Patrol on March 16, 2012 on State Route 309, between
       Robb Avenue, and Cole Street in American Township, Allen
       County, Ohio. It was operational from 9:00 P .M. to midnight on that
       date. Officers from several agencies assisted in the running of such
       checkpoint, including Trooper Mathew Geer of the Findlay post. All
       were under the direction of Lieutenant Brant Zemelka, post
       commander of the Lima post.

       Lieutenant Zemelka, as post commander, requested permission from
       District Headquarters of the Ohio State Highway Patrol in Findlay,
       Ohio to conduct such an OVI checkpoint and was ultimately granted
       permission from, not only the District, but also the State
       headquarters in Columbus, Ohio. His reasoning for such request and
       his procedural outline for the checkpoint’s operation were admitted
       as State’s “Exhibit H”. While part of that form was generated by the
       Lieutenant specifically for this particular checkpoint, much of the
       form was preprinted and generic in nature. It is the form used by the
       Ohio State Highway Patrol when seeking permission to run such an
       operation. It contained no statistical data regarding why the
       checkpoint was placed where it was placed but merely generalities
       concerning the heavy traffic pattern in the area, the traffic accidents
       in the area and arrests for OVI in the area.



                                        -13-
Case No. 1-13-27


      Prior to the operation of the checkpoint, motorists and the general
      public were alerted that such an operation was to take place. By
      press releases to local media on March 12, 2012, March 14, 2012
      and March 16, 2012 (State’s “Exhibit I”), the checkpoint was
      announced for release to the public with the last one identifying
      State Route 309, along with the time. Albeit, the exact location on
      State Route 309 was not given, it is well known that said highway
      traverses almost the entire width of Allen County from east to west.
      The exact location where the checkpoint was set up is a heavily
      traveled roadway between Lima’s city limit and the Lima Mall.
      Advanced warning signs alerting motorists of the OVI checkpoint
      were located at the intersections of State Route 309 and Robb Ave.,
      affording those traveling eastbound to exit onto Robb Avenue and
      avoid the checkpoint, and State Route 309 and Cole Street, affording
      those traveling westbound the opportunity to turn onto that street,
      and, also, avoid the checkpoint. In either event, motorists were not
      required to enter the checkpoint area.

      ***

      The checkpoint location, west of Cole Street and east of Robb
      Avenue, was easily visible to oncoming motorists and in a safe area,
      and that it is a straight stretch of road easily navigable to the
      motoring public. The area was extremely well lit and had adequate
      signage informing the public of what was taking place at access for
      them to avoid the area by turning onto either Cole Street, or Robb
      Avenue prior to entering the restricted zone. The numerous police
      cars and over a dozen officers from various departments could be
      seen easily by the public and showed a sufficient police power of the
      community.

      Lt. Zemelka testified that the criteria used to select the checkpoint
      location included the fact that it was a high traffic area with a history
      of alcohol-related crashes and OVI arrests. * * * He also testified as
      to the procedure to be used on vehicles stopped within the
      checkpoint (State’s "Exhibit H”). * * * On cross-examination, it was
      admitted that no statistics were submitted in the request to support
      the assertions made about the particular area of the alcohol
      checkpoint.


                                        -14-
Case No. 1-13-27


       * * * As was testified by Trooper Geer, the driver was approached
       and explained the purpose of the checkpoint, given a pamphlet on
       the dangers of operating a vehicle under the influence, and, if no
       odor of alcohol was detected or any other sign of impairment noted,
       the driver was sent on his or her way. Although no testimony was
       given as to the exact time of such stop, the Court can reasonably
       conclude that it was minimal.

(R. at 24, at 1-2, 4-5.)

       {¶20} Accepting the trial court’s unchallenged factual findings, which are

supported by evidence in this case (see, e.g., Tr. at 78-88), we hold that the

procedures described above were reasonably sufficient to satisfy the constitutional

protections against unreasonable searches and seizures. These procedures include

all of the elements found sufficient by the Ohio Supreme Court in Orr: advance

warning of the checkpoint’s presence, “[v]isible signs of the officers’ authority,”

“at least eleven officers, with police cruisers present,” immediate advice of the

purpose of the stop, brief duration of the stop, and an explanatory pamphlet given

to the driver.    See Orr, 91 Ohio St.3d at 393.     We note that this particular

checkpoint had additional elements, not noted by the Orr court: approval of the

checkpoint by the district and state headquarters of the Ohio State Highway Patrol,

press releases announcing the checkpoint ahead of time, and an opportunity to

avoid the checkpoint area. Furthermore, a challenge very similar to the one White

advances, based on allegedly insufficient data to support the roadblock’s location,

time, and procedures, was rejected by the Tenth District Court of Appeals, which


                                       -15-
Case No. 1-13-27


utilized the four prongs of the Goines test in Nelson, 2002 WL 356317, at *4.

Therefore, we are inclined to hold that “[c]learly, [this checkpoint] constituted a

very limited intrusion into travelers’ privacy and sense of security.” See Orr, 91

Ohio St.3d at 393.

       {¶21} In sum, we hold that the trial court did not err when it determined

that the OVI roadblock used to stop White was constitutional, because “the

balance of the State’s interest in preventing [operation of a vehicle while under the

influence of alcohol], the extent to which this system can reasonably be said to

advance that interest, and the degree of intrusion upon individual motorists who

are briefly stopped, weighs in favor of the state program.” See Sitz, 496 U.S. at

455.

       {¶22} Based upon the foregoing, White’s first assignment of error is

overruled.

       2. Fifth Assignment of Error—Probable Cause to Arrest

       {¶23} We opt to take this assignment of error out of order as it has bearing

on our resolution of the second assignment of error. White argues that the single

“failed” field sobriety test was insufficient to create probable cause for his arrest

and therefore, his arrest was unconstitutional.     If White’s arrest was in fact

unconstitutional, all evidence derived from the arrest must be suppressed as

illegally obtained. See State v. Flanagan, 4th Dist. No. 03CA11, 2003-Ohio-6512,


                                        -16-
Case No. 1-13-27


¶ 7, citing State v. Daily, 4th Dist. No. 97CA25, 1998 WL 18139, *2 (Jan. 15,

1998), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      {¶24} We begin by recognizing that the arrest at issue was conducted

without a warrant and as such, it required Trooper Geer to have probable cause to

believe that a criminal offense had been committed or was being committed by

White. See State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858,

¶ 66, citing Gerstein v. Pugh, 420 U.S. 103, 111-112, 95 S.Ct. 854, 43 L.Ed.2d 54

(1975).   “In determining whether the police had probable cause to arrest an

individual for [OVI], we must consider whether, at the moment of arrest, the

police had information, derived from a reasonably trustworthy source of facts and

circumstances, sufficient to cause a prudent person to believe that the suspect was

driving under the influence.” State v. Dillehay, 3d Dist. Shelby No. 17-12-07,

2013-Ohio-327, ¶ 19, quoting State v. Thompson, 3d Dist. No. 14-04-34, 2005-

Ohio-2053, ¶ 18; State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000),

superseded by statute on other grounds as stated in State v. Boczar, 113 Ohio

St.3d 148, 863 N.E.2d 155, 2007-Ohio-1251, ¶ 10. We will evaluate the existence

of probable cause in this case under the totality of the circumstances approach.

Id., citing State v. Cromes, 3d Dist. Shelby No. 17-06-07, 2006-Ohio-6924, ¶ 38.

Under this approach, an arresting officer may “draw on their own experience and

specialized training to make inferences from and deductions about the cumulative


                                       -17-
Case No. 1-13-27


information available to them that ‘might well elude an untrained person.’ ”

Cromes, 2006-Ohio-6924, at ¶ 38, quoting United States v. Arvizu, 534 U.S. 266,

273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and United States v. Cortez, 449 U.S.

411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

       {¶25} Trooper Geer testified that he was a certified peace officer who had

worked for the Highway Patrol in traffic enforcement for over six years. (Tr. at 3,

5.) He had been trained in investigation and detection of operating under the

influence offenses and had participated in arrests for impaired drivers between 800

to 1000 times. (Tr. at 4-5, 10-12.) The trial court found credible Trooper Geer’s

testimony that there was “a strong odor of alcoholic beverage emanating from

inside [White’s] vehicle,” as well as his observation that White had “flushed face,

bloodshot eyes, and somewhat slurred speech.” (R. at 24, at 2.) The trial court

considered Geer’s testimony that he had observed “a ‘strong’ odor of alcoholic

beverage coming from the defendant’s breath, even after separating him from the

vehicle and its two other passengers.” (Id. at 6.) The trial court acknowledged

White’s admission that he had consumed three beers prior to driving, but it also

recognized that White did not demonstrate “ ‘bad’ driving.” (Id. at 2, 6.)

       {¶26} With respect to the field sobriety tests, Geer testified that during the




                                         -18-
Case No. 1-13-27


administration of the Horizontal Gaze Nystagmus (HGN)5 test he had observed

White’s eyes still being bloodshot and glassy. (Tr. at 16.) He further observed a

positive result on six out of six clues present in the test, which included a lack of

smooth pursuit, nystagmus at maximum deviation, and onset nystagmus prior to

forty-five degrees. (Tr. at 15-17.) Geer stated that, based on his training and

experience, the more of the above described clues that are observed during the

administration of the test, the more the subject had to drink. (Id. at 17.) Geer

testified that he had never seen anyone test below the legal limit on alcohol

content after exhibiting six out of six clues. (Id.) The trial court excluded the

results of the HGN test for failure to substantially comply with National Highway

Traffic Safety Administration (NHTSA) standards.

        {¶27} The trial court admitted “the heel-to-toe test,” and concluded that

White “flunked” it because he started it “prior to being instructed to do so, he

moved his feet to maintain balance during the instructional phase and * * * he


5
 For the purpose of this opinion we find it necessary to quote the explanation of the HGN test, provided in
State v. Homan, 89 Ohio St.3d 421, 422, 732 N.E.2d 952 (2000), fn. 1:
          The HGN test is one of several field sobriety tests used by police officers in detecting
          whether a driver is intoxicated. “Nystagmus” is an involuntary jerking of the eyeball.
          “Horizontal gaze nystagmus” refers to a jerking of the eyes as they gaze to one side. The
          position of the eye as it gazes to one side is called “maximum deviation.” In
          administering the test, an officer takes some object, a pen for example, and places it
          approximately twelve to fifteen inches in front of the suspect's nose. The officer then
          observes the suspect's eyes as they follow the object to determine at what angle
          nystagmus occurs. The more intoxicated a person becomes, the less the eyes have to
          move toward to the side before nystagmus begins. Cohen & Green, Apprehending and
          Prosecuting the Drunk Driver: A Manual for Police and Prosecution (1997), Section 4.04
          [2][a]. Other signs of intoxication include distinct nystagmus at maximum deviation and
          the inability of the suspect's eyes to smoothly follow the object. See 1 Erwin, Defense of
          Drunk Driving Cases (3 Ed.1997), Sections 10.04[5] and 10.06[1].

                                                  -19-
Case No. 1-13-27


failed to touch heel to toe on six of these steps going forward and back.” (R. at 24,

at 2.) The trial court also admitted “the one-leg stand test,” concluding that White

“did not flunk [it] under NHTSA standards” although he “put his foot down one

time at approximately count 23, and * * * swayed for balance while taking the

test.”6 (Id.) Because of the trial court’s exclusion of the HGN test and its finding

that White did not “flunk” the one-leg stand test, White now argues that the trial

court’s finding of probable cause was based on one “failed” field sobriety test

only.

         {¶28} We have previously held that factors that may be taken into account

in probable cause determination are not limited to the field sobriety tests:

         While field sobriety tests must be administered in strict compliance7
         with standardized procedures, probable cause to arrest does not
         necessarily have to be based, in whole or in part, upon a suspect’s
         poor performance on one or more of these tests. The totality of the
         facts and circumstances can support a finding of probable cause to
         arrest even where no field sobriety tests were administered or where,
         as here, the test results must be excluded for lack of strict
         compliance.

State v. Ferguson, 3d Dist. Defiance No. 4-01-34, 2002 WL 596115, *3, citing

Homan, 89 Ohio St.3d at 427.                   Furthermore, even when the test results are

excluded, the testimony about the defendant’s performance during the

6
  Although the trial court used the term “flunk” when referring to the field sobriety tests, we recognize that
the field sobriety tests are not “passed” or “failed” but rather, they are considered by the number of clues
that are exhibited by the suspect.
7
  Although the above quote uses “strict compliance,” later cases clarified that strict compliance is no longer
required and substantial compliance with the testing procedures is sufficient. See State v. Plummer, 22
Ohio St.3d 292, 490 N.E.2d 902 (1986), syllabus.


                                                    -20-
Case No. 1-13-27


administration of the excluded tests is admissible for the purpose of determining

probable cause under the totality of the circumstances approach:

           We see no reason to treat an officer’s testimony regarding the
           defendant’s performance on a nonscientific field sobriety test any
           differently from his testimony addressing other indicia of
           intoxication, such as slurred speech, bloodshot eyes, and odor of
           alcohol. In all of these cases, the officer is testifying about his
           perceptions of the witness, and such testimony helps resolve the
           issue of whether the defendant was driving while intoxicated.

           Unlike the actual test results, which may be tainted, the officer’s
           testimony is based upon his or her firsthand observation of the
           defendant’s conduct and appearance.

State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶¶ 14-15;

State v. Griffin, 12th Dist. Butler No. CA2005-05-118, 2006-Ohio-2399, ¶ 11

(“Regardless of a challenge to field sobriety tests, a police officer may testify

regarding his observations made during administration of the tests.”). Therefore,

Trooper Geer’s observations about all administered field sobriety tests, “the failed

one”, “the passed one,”8 and the excluded one, are admissible for the purpose of

determining whether the trial court erred when it found there was probable cause

to arrest White on March 16, 2012.

           {¶29} Under the totality of the circumstances we cannot conclude that the

trial court erred in its finding that it was reasonable for Trooper Geer to believe

that White was under the influence of alcohol, based on his experience and



8
    See fn. 6, supra, regarding the terminology applicable to the field sobriety tests.

                                                       -21-
Case No. 1-13-27


specialized training. At the moment of the arrest, Trooper Geer had reasonably

trustworthy information indicating that White had had three beers prior to driving.

He observed White’s flushed face, bloodshot eyes, and slurred speech, as well as

an odor of alcoholic beverage coming from his breath. In addition to exhibiting a

number of clues during one field sobriety test, White swayed for balance and put

his foot down during the one-leg stand test. All these cumulative clues could

sufficiently cause a prudent person to believe that White was operating a vehicle

under the influence.

        {¶30} Accordingly, White’s fifth assignment of error is overruled.

        3. Second Assignment of Error—Consent to Take the Breath Test and

        Coercion

        {¶31} In the second assignment of error, White contends that his consent to

the breath test was a product of coercion because “the clear meaning of the

officers [sic] words were [sic] that further cooperation would prevent appellant

from being jailed and the immediate request after that coercive language was to

request a breath test.”9 (App’t Br. at vi.) White takes issue with a few of the

statements made by Trooper Geer during the stop. In particular, after informing

White that he was being placed under arrest for OVI, Trooper Geer stated, “As


9
  We note that the record shows that the request for a breath test was not made immediately after the
statements regarding cooperation. See State’s Ex. B; Tr. at 24, 36 (testifying that the request to submit to
the breath test was made in the command center vehicle, while the statements regarding cooperation were
made prior to going to the command center, when White was still in the police cruiser).

                                                   -22-
Case No. 1-13-27


long as you remain cool and cooperative with me you are going to go home

tonight * * * I'll just issue you a ticket and I’ll not have to take you to jail.” (Tr. at

36.) White asserts that these statements were coercive and that his consent to the

breath test, given later that night,10 was the result of these allegedly coercive

statements. Of note, at no point in these proceedings has White alleged or proved

that he actually felt coerced or felt that his free will was overborne. He seems to

rely on the assumption that Trooper Geer’s statements were coercive on their face,

and on Geer’s admission, on cross-examination, that he “could see” “someone

believing that they needed to take the breath test or they’re going to jail,” even

though he did not mean it that way. (Tr. at 37-38.)

            {¶32} A chemical test, such as a breath test, is a search under the Fourth

Amendment to the United States Constitution. See Schmerber v. California, 384

U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Groszewski, 183

Ohio App.3d 718, 2009-Ohio-4062, 918 N.E.2d 547 (6th Dist.), citing Schmerber;

Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1449 (9th Cir.1986). A

warrantless search is per se unreasonable unless certain “specifically established

and well delineated exceptions” exist. City of Xenia v. Wallace, 37 Ohio St.3d

216, 218, 524 N.E.2d 889 (1988), quoting Coolidge v. New Hampshire, 403 U.S.

443, 454–455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389



10
     See fn. 9.

                                           -23-
Case No. 1-13-27


U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The burden is on the state to

establish that a warrantless search is valid under one of those exceptions. Id.

       {¶33} In this case, the exception at issue is consent. Under the implied

consent statute in Ohio, the State’s burden is satisfied because

       [a]ny person who operates a vehicle * * * upon a highway * * * shall
       be deemed to have given consent to a chemical test or tests of the
       person’s whole blood, blood serum or plasma, breath, or urine to
       determine the alcohol * * * content of the person’s whole blood,
       blood serum or plasma, breath, or urine if arrested for [operating a
       vehicle under the influence].

R.C. 4511.191; State v. Turner, 11th Dist. Portage No. 2007-P-0090, 2008-Ohio-

3898, ¶ 44 (holding that under R.C. 4511.191 “an OVI suspect is already deemed

to have consented to the breath test”).

       {¶34} White first contends that the implied consent statute does not apply

“unless the Defendant was validly arrested by an officer having reasonable

grounds to believe the Defendant was operating a vehicle while under the

influence of alcohol and/or drugs of abuse and was properly advised of the Ohio

Implied Consent Provisions.” (App’t Br. at 10.) As we have already established

in our analysis of the fifth assignment of error, White was validly arrested.

Further, the trial court found that White was read the BMV 2255 form, which

explained his right to request his own chemical test and advised him of the

consequences of taking or refusing to take the test. (R. at 24, at 3; Tr. State’s Ex.

C (including White’s acknowledgment of the form having been read to him).)

                                          -24-
Case No. 1-13-27


This factual finding is supported by the record and therefore, the implied consent

statute, R.C. 4511.191, applies in this case.

       {¶35} White next contends that the implied consent warnings in this case

were misstatements of law and therefore, they resulted in the consent being

involuntary and thus, evidence of breath alcohol content was unconstitutionally

obtained. (App’t Br. at 10.) There is no evidence to support an allegation that the

implied consent warnings, as read from BMV Form 2255, were read improperly or

misstated. In addition to Trooper Geer’s testimony regarding the reading of the

form, White and a witness signed an acknowledgment that the advice was shown

and read to White. (Tr. State’s Ex. C and D.)

       {¶36} White attempts to argue, however, that Trooper Geer’s statements

constituted warnings related to the implied consent and they were misstatements

of law because they indicated that refusal to take the breath test is an arrestable

offense.   White’s argument is misplaced because there is no reason to treat

Trooper Geer’s statements as implied consent warnings where actual warnings

were properly given in accordance with the statute.         See R.C. 4511.192(B)

(prescribing the language contained in BMV Form 2255). Furthermore, there is

no link between those statements and the later request for breath test. Trooper

Geer merely asked White for cooperation and denied indicating that the lack of

corporation or refusal to take the breath test would result in an arrest. (See Tr. at


                                         -25-
Case No. 1-13-27


37-38.) Thus, White’s argument that these comments implied that he would be

imprisoned if he did not take the breath test is based on a number of much

attenuated inferences, unsupported by any evidence in the record. Trooper Geer

made no misstatements of law as they relate to the implied consent warnings.

       {¶37} Moreover, the argument fails because

       arguments that an officer’s misinformation or other statements
       coerced a suspect’s consent to submit to a chemical test have been
       consistently rejected by courts of appeal. See e.g. Columbus v.
       Dixon, 10th Dist. No. 07AP-536, 2008-Ohio-2018, at ¶ 7 (“despite
       the fact that the police officers informed appellant that if she refused
       the test she would be held in custody for 12 to 24 hours, we find that
       the officers did not coerce appellant into taking the Breathalyzer
       test”); Wickliffe v. Hromulak, 11th Dist. No.2000-L-069, 2001 Ohio
       App. LEXIS 1835, at *13 (“[t]he fact that appellant * * * failed to
       recognize that he would be subject to penalties beyond the ninety-
       day administrative suspension * * * does not call into question the
       validity of his consent in submitting to the BAC test”); State v. Tino,
       1st Dist Nos. C-960393, C960394, and C-960395, 1997 Ohio App.
       LEXIS 747, at *6 (“[t]he results of the [chemical] test * * * were
       admissible in the disposition of appellant’s criminal case regardless
       of whether the ALS provisions were properly communicated”).

State v. Morgan, 11th Dist. Portage No. 2008-P-0098, 2009-Ohio-2795, ¶ 67; see

also State v. Eaton, 3d Dist. Auglaize No. 2-10-10, 2010-Ohio-6065, ¶ 15-17, fn. 2

(citing the above authorities and rejecting an argument that an officer’s

“misstatement regarding the per se blood-alcohol limit for commercial drivers”

rendered “involuntary” the defendant’s refusal to submit to a chemical test).

       {¶38} Since there were no irregularities in either White’s arrest or the

implied consent warnings read to him, the implied consent was valid and the State

                                        -26-
Case No. 1-13-27


was not required to demonstrate “by ‘clear and positive’ evidence that consent was

freely and voluntarily given,” as White contends. (App’t Br. at 8.)

       {¶39} Nevertheless, the trial court addressed White’s argument regarding

the consent being improperly coerced and determined that the consent was not a

result of coercion. (R. at 24, at 3, 9.) “The question of whether consent to a

search was voluntary or the product of duress or coercion, express or implied, is a

question of fact to be determined from the totality of the circumstances.” State v.

Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 99, citing

Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854

(1973). The State established by unopposed testimony of Trooper Geer that White

was asked to submit to a breath test. (See Tr. at 24, 26.) Trooper Geer testified

that White “considered whether or not to take the test for a period of time before

consenting to take it.” (R. at 24, at 9.) There was no testimony to contradict the

State’s version of events and no evidence that White felt coerced. Looking at all

the circumstances, the trial court found that White consented and that the test was

taken voluntarily. (R. at 24, at 3, 9.) We hold that, under the totality of the

circumstances, the record supports the trial court’s conclusion.

       {¶40} Based upon the foregoing discussion, White’s second assignment of

error is overruled.




                                        -27-
Case No. 1-13-27


       4. Third Assignment of Error—Twenty-Minute Wait Period Prior to Breath
       Test

       {¶41} The third assignment of error challenges the admissibility of the

breath test results due to an alleged failure to comply with the prescribed

procedural requirement of the twenty-minute observation period prior to testing.

This challenge is based on the regulation that breath samples “shall be analyzed

according to the operational checklist for the instrument being used.”           Ohio

Adm.Code 3701-53-02(D); R.C. 4511.19(D)(1). It has been recognized that one

of the elements on the checklist is “that the person being tested be observed for

twenty minutes before the test to prevent the oral intake of any material.” State v.

Siegel, 138 Ohio App.3d 562, 566-567, 741 N.E.2d 938 (3d Dist.).                  This

requirement operates “to eliminate the possibility that the test result is a product of

anything other than the subject’s deep lung breath.” State v. McAuley, 8th Dist.

Cuyahoga No. 76720, 2000 WL 1038186, *4 (July 27, 2000); accord State v.

Steele, 52 Ohio St.2d 187, 191, 370 N.E.2d 740 (1977); State v. Camden, 7th Dist.

Monroe No. 04 MO 12, 2005-Ohio-2718, ¶ 13, quoting Bolivar v. Dick, 76 Ohio

St.3d 216, 218, 667 N.E.2d 18 (1996). Strict compliance with the twenty-minute

observation period is not required, however, as the courts require substantial

compliance. See Bolivar, 76 Ohio St.3d at 218; Camden, 2005-Ohio-2718, at ¶

14; McAuley, 2000 WL 1038186, at *4; State v. Holly, 135 Ohio App.3d 512, 515,

734 N.E.2d 869 (12th Dist.1999).

                                         -28-
Case No. 1-13-27


         {¶42} The trial court made the following factual findings relevant to this

assignment of error:

         At the checkpoint diversion area, there was a “command center”
         trailer wherein a portable Intoxilyzer 8000 breath-testing machine
         was located. This allowed the arresting officers to give a BAC test
         on scene without transporting defendants to the Ohio Highway
         Patrol post. From the time stamp of the video, the Court would find
         that the defendant was under surveillance from 10:14 P.M. until the
         test was begun at 10:47 P.M. with the exception of a total of
         approximately 55 seconds when Trooper Geer exited the command
         center to briefly speak with another trooper. When the defendant was
         inside the patrol car prior to going to the command center, the
         trooper was just outside and able to keep the defendant in view
         through the windshield and side windows. There is no evidence that
         defendant ingested anything during any time that the troopers were
         not physically with him.

(R. at 24, at 3.)

         The first attempt to give the defendant a breath test was begun at
         10:41 P .M.11 but was terminated one minute later when an
         interference was detected, which automatically shut down the
         machine (Defendant’s “Exhibit l”).12

         Thereafter, a second test was begun at 10:43 P.M. that was
         completed at 10:54 P.M..

(Id.)

         In the instant case, defendant was placed in the patrol vehicle and
         then the command center of the alcohol checkpoint, where the
         Intoxilyzer 8000 was located. The video, by use of the time stamp
         thereon, shows that he was out of direct observation by Trooper

11
   Although this finding is not challenged here, we note that Trooper Geer testified that the first test was
started at 10:37 p.m., but the first air blank was blown at 10:41 p.m. (Tr. at 45; see also R. at 22, Def.’s
Proposed Findings of Facts and Conclusions of Law, Ex. 1.)
12
   It appears that the trial court refers to an exhibit that was attached to R. at 22, Def.’s Proposed Findings
of Facts and Conclusions of Law, as there is no “Defendant’s ‘Exhibit 1’” attached to the Transcript.

                                                    -29-
Case No. 1-13-27


       Geer for 52 seconds of the [20-minute] period he was to be watched
       prior to the test being administered. While in the cruiser, defendant
       is not on camera, but he was on camera while in the command center
       and he could not be seen to put anything in his mouth during that
       period. As to the period of time in the cruiser, there was no evidence
       submitted that would lead a reasonable person to believe that he had
       ingested anything that would have affected the test. The Court would
       find that the defendant was personally observed for 95.67% of the
       time required by the rule and no evidence was submitted giving any
       indication that during the time he was not personally observed that
       he did ingest anything that would have affected the test. Therefore,
       the Court would conclude that the State of Ohio, substantially
       complied with the requirement of the administrative rule concerning
       the 20-minute observation period in this particular case.

(Id. at 10.)

       In the instant case, the defendant was stopped at the sobriety
       checkpoint at 10:14 P.M. on March 16, 2012. The Intoxilyzer 8000
       (OH-5) breath test was administered at 10:43 P.M. * * *.

(Id. at 11.)

       In this particular test, Trooper Geer followed the operational
       checklist as shown on the machine's screen. It ran an air blank
       showing clear and performed its diagnostic check and a second air
       blank run at 10:47 P.M. on March 16, 2012, and then performed a
       dry gas control test within standard. It then ran an air blank test
       showing clear and the defendant’s sample of breath gave a BAC
       result of .120 at 10:49 P.M .. Two more air blanks were run showing
       the machine clear of any residual alcohol and a second sample of the
       defendant’s breath was given at 10:53 P.M., showing a BAC result
       of .120. The machine again cleared itself of any residual alcohol and
       a second dry gas control was run showing it to be within standard at
       10:54 P.M .. The machine then cleared itself again, of residual
       alcohol and the test was concluded.

(Id. at 12.)



                                       -30-
Case No. 1-13-27


       {¶43} We first note that there seems to be some discrepancy in the above

quoted sections of the trial court’s findings with respect to the time that the breath

tests were administered. After reviewing the evidence, we clarify that according

to the first Subject Test Report, although the administration of the first test began

at 10:37:25 p.m., the first air blank was blown at 10:41 p.m. and the second air

blank was blown at 10:42 p.m. (See R. at 22, Def.’s Proposed Findings of Facts

and Conclusions of Law, Ex. 1; see also Tr. at 45.) This Report is marked with

words “Interferent Detect.” (Id.) The second Subject Test Report offered in

evidence shows that the administration of the second test was begun at 10:43 p.m.,

the first air blank was blown at 10:47 p.m., the first subject sample was received at

10:49 p.m., and the second subject sample was received at 10:53 p.m. (State’s Ex.

F.) This test was concluded with a dry gas control and an air blank at 10:54 p.m.

(Id.) Therefore, we recognize that although the administration of the second test

began at 10:43 p.m., White did not actually start performing this test until 10:47

p.m. Therefore, the trial court’s finding on page 3 of the Judgment Entry, that “the

test was begun at 10:47 P.M.” is correct and is supported by the record.

       {¶44} White challenges the trial court’s finding that the break in the

observation period was only about fifty seconds. (App’t Br. at 13.) In this

respect, the trial court found that the break in the observation period occurred after

White had been placed in the command center, “when Trooper Geer exited the


                                        -31-
Case No. 1-13-27


command center to briefly speak with another trooper,” which the video evidence

shows to be after 10:30 PM. (R. at 24, at 3; State’s Ex. B.) The trial court found

that White “was on camera while in the command center and he could not be seen

to put anything in his mouth during that period.” (R. at 24, at 10.) This finding is

not challenged on appeal. White asserts, however, that there was a separate three-

minute period when he was not observed, immediately after being placed in the

police cruiser, between 10:25:30 p.m. and 10:28:30 p.m. (App’t Br. at 13.)

       {¶45} The record includes a video from a camera that was installed in the

police cruiser in which White was kept prior to being moved to the command

center. (State’s Ex. B.) After reviewing the video evidence, we recognize that

Trooper Geer left the vehicle’s immediate vicinity at 10:25:34 p.m. and he can be

seen returning at 10:27:26 p.m., which is less than two minutes later. (Id.; see also

Tr. at 34-35.) During that time, Trooper Geer can be seen leaning into another car

and talking on the phone, but there are also moments when he is out of the

camera’s reach. (Id.) Although we cannot say that White was out of Trooper

Geer’s sight for the entire two minutes, it is clear that there were moments when

Trooper Geer was not watching him. Furthermore, Trooper Geer admitted that he

did not personally monitor White all the time. (Tr. at 34, 41.) Therefore, the trial

court’s finding on page 3, stating that “[w]hen the defendant was inside the patrol

car prior to going to the command center, the trooper was just outside and able to


                                        -32-
Case No. 1-13-27


keep the defendant in view through the windshield and side windows,” is not

supported by the record.

       {¶46} Nevertheless, even if we accept White’s suggestion that the two-

minute interruption in observation mandated a “restart in the required 20 minute

observation period,” there was at least nineteen and a half minutes of monitoring

from 10:27:26 p.m., when Trooper Geer returned, until 10:47 p.m. when the first

air blank was blown, and at least twenty-one and a half minutes until the first

breath sample was received at 10:49 p.m.        Therefore, the State substantially

complied with the requirement of a twenty-minute observation when it proved that

White was watched between 10:27:26 p.m. and 10:49 p.m.

       {¶47} White next argues that a separate twenty-minute observation period

was required after the first attempt to administer the test detected interference.

Similar suggestions have been consistently rejected by the courts in Ohio. See

State v. Householder, 181 Ohio App.3d 269, 2009-Ohio-826, 908 N.E.2d 987, ¶¶

11, 22 (5th Dist.) (citing decisions by other Ohio courts that rejected a suggestion

that the observation period restarts after an invalid sample); State v. Reiger, 5th

Dist. Fairfield No. 02CA30, 2002-Ohio-6673, ¶¶ 8-16; State v. Gigliotti, 6th Dist.

Erie No. E-99-081, 2000 WL 1867265, *6 (Dec. 22, 2000) (holding that a

memorandum from the Ohio Department of Health that required the observation

period to be restarted after an invalid sample did not constitute a regulation and


                                       -33-
Case No. 1-13-27


was not enforceable); State v. Bosier, 12th Dist. Clinton No. CA99-11-036, 2000

WL 1050976, *2 (July 24, 2000); City of Rocky River v. Papandreas, 8th Dist.

Cuyahoga No. 76132, 2000 WL 301080 (Mar. 23, 2000); McAuley, 2000 WL

1038186, at *5, quoting Papandreas, id. (holding that where the evidence

demonstrated that the defendant did not ingest anything between the first and

subsequent testings, “the police ‘had no reason to wait another twenty minutes

before administering the breath test.’ ”); State v. Matlack, 4th Dist. Athens No.

95CA1658, 1995 WL 646355, *4 (Nov. 2, 1995). Following our sister districts,

we reject White’s contention that a new twenty-minute observation period was

required after the breathalyzer displayed the message “Interferent Detect.”

       {¶48} Therefore, we hold that the State substantially complied with the

Ohio Department of Health regulations and, lacking any prejudice shown or

alleged by White, the breath test results are admissible. See State v. Plummer, 22

Ohio St.3d 292, 490 N.E.2d 902 (1986), syllabus; Holly, 135 Ohio App.3d at 515,

citing Plummer id. (“Once the prosecution demonstrates substantial compliance,

the defendant must show that he would be prejudiced by failure to strictly comply

with the regulations. If the defendant is unable to show prejudice, then the results

of the breath-test are admissible.”).

       {¶49} Accordingly, White’s third assignment of error is overruled.




                                        -34-
Case No. 1-13-27


       5. Fourth Assignment of Error—Administration of the Breath Test with the
       Use of the Allegedly Expired Dry Gas

       {¶50} The final point we need to address is White’s assertion that his breath

test was improperly administered because the dry gas used in “the wet bath

certification,” in the certification of the breath testing device, and in his test was

expired. In support of his contention that the dry gas was expired, White points

out that there are two expiration dates on one of the pages in State’s Exhibit G,

“Instrument Certification Report, Certificate of Analysis EBS - Ethanol Breath

Standard.” He argues that the ambiguity regarding the expiration dates should

have been resolved in his favor and, as a result, the trial court should have held

that his breath test was not properly administered.

       {¶51} The trial court reviewed all the requirements of the administrative

rules promulgated by the Ohio Director of Health, including rules related to

certifications and testing of the dry gas and the instrument. (R. at 24, at 11.) After

reciting the standards, the trial court found that the machine used in White’s test,

Intoxilyzer 8000, “was tested on December 28, 2011 by Robert Norbeck, the

Director of Alcohol and Drug Testing’s field representative for such matters.” (Id.

at 3.) The trial court further found that there were no irregularities with the

machine, the “dry gas” or the “wet bath solution;” and that “the chemical test

administered on the defendant was analyzed in accordance with methods approved

by the director of health.” (Id. at 3, 11, 12.) Hence, the trial court concluded that

                                        -35-
Case No. 1-13-27


the Intoxilyzer 8000 used in this test “was working properly when the test was

administered” and that “the defendant’s breath was analyzed according to the

requirements of Ohio Administrative Code Chapter 3701-53-02(E) and admissible

by the State of Ohio.” (Id. at 12.)

         {¶52} We acknowledge that there are multiple dates on the dry gas

certification page in the report at issue. There is a printed phrase, “Product

Expiration: 26 May 2014” and, several lines below, there is a handwritten note,

“Adam S. Kelly 6/28/2011 expires 11/14/2011.”        (State’s Ex. G.) There is no

link between the product expiration date and the handwritten note by Adam S.

Kelly.    The person who prepared the Instrument Certification Report, Robert

Norbeck, testified that he did not know who Adam Kelly was.           (Tr. at 67.)

Norbeck attested that the expiration date for the dry gas was May 26, 2014, and

that the Intoxilyzer at issue was properly certified. (Tr. at 60, 63, 65-66.) White

did not proffer any evidence to contradict this testimony or the clear meaning of

the phrase on the dry gas certification, which stated that the dry gas expired on

May 26, 2014.

         {¶53} Therefore, we cannot conclude that the note, possibly made by Mr.

Kelly, referred to the dry gas expiration date, rather than Mr. Kelly’s commission

expiration date, anything else’s expiration, or whether it was merely a note put

there in error by one Adam S. Kelly.       There is no explanation for why the


                                       -36-
Case No. 1-13-27


handwritten note appears on the document, but the trial court relied on the

uncontradicted expert testimony and the documents in evidence in determining

that there were no issues with the dry gas, the wet bath certification, or the

instrument certification.

       {¶54} There is no evidence to contradict the trial court’s factual finding that

the Intoxilyzer was working properly in all respects, that there were no issues with

the dry gas used, and that White’s breath test was administered properly. We thus

defer to the trial court’s “evaluation of evidence and the credibility of witnesses”

because it is supported by competent and credible evidence. See Mills, 62 Ohio

St.3d at 366; Burnside, 2003-Ohio-5372, ¶ 8; Norman, 136 Ohio App.3d at 51.

       {¶55} As a result, the State has satisfied its burden of showing that the

breath test was administered in substantial compliance with the administrative

regulations and the trial court did not err in finding that the breath test was

properly administered and admissible.       See Plummer, 22 Ohio St.3d 292, at

syllabus; Defiance v. Kretz, 60 Ohio St.3d 1, 3, 573 N.E.2d 32 (1991) (holding

that “admissibility of test results to establish alcoholic concentration under R.C.

4511.19 turns on substantial compliance with ODH regulations”).

       {¶56} For the foregoing reasons, White’s fourth assignment of error is

overruled.




                                        -37-
Case No. 1-13-27


                                  Conclusion

      {¶57} Having found no error prejudicial to Appellant, in the particulars

assigned and argued, we affirm the judgment of the Lima Municipal Court.

                                                            Judgment Affirmed

ROGERS, J., concurs, concurs in Judgment Only
     as to Assignment of Error I
PRESTON, J., concurs.
/jlr




                                     -38-
