         [Cite as State v. Richards, 2016-Ohio-3518.]




                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :    APPEAL NOS. C-150356
                                                                    C-150357
        Plaintiff-Appellant,                       :    TRIAL NOS. C-14TRC-58167A
                                                                   C-14TRC-58167B
  vs.                                              :
                                                                O P I N I O N.
JONATHON RICHARDS,                                 :

    Defendant-Appellee.                            :



Criminal Appeals From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: June 22, 2016

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

James S. Arnold, for Defendant-Appellee.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

        {¶1}    This is an appeal by the state from a trial court’s decision that granted a

motion to suppress in a drunk-driving case. The court suppressed evidence concerning

field-sobriety tests that were performed by the suspected drunk driver following an

accident. Having suppressed the test results, the court found that the arresting officer

lacked probable cause to arrest the driver.         The court also suppressed certain

admissions that were made by the driver following his arrest. We conclude that one of

the field-sobriety tests was properly suppressed, but the remaining tests and the

driver’s statements are admissible. We conclude further that the trooper had probable

cause to arrest the driver. Thus we reverse the trial court’s decision in part and remand

the matter to the trial court.

                                    I.   Background

       {¶2}     Around 2:30 in the morning, Jonathon Richards drove his car off the

interstate and crashed into a tree. A tow truck had to be called to pull the car from the

tree. Three state troopers responded to the scene. According to testimony provided at

the suppression hearing, Trooper Anthony Filak detected the odor of alcohol when he

approached Richards. He noted that his eyes were watery and bloodshot and his speech

was slow and deliberate. Mr. Richards claimed that he had fallen asleep while driving

and said that he had had two beers earlier that night. He stated that his leg was the only

thing that hurt, but repeatedly indicated that he did not want medical attention. He

admitted to having one prior conviction for operating a vehicle while under the influence

of alcohol (“OVI”).

       {¶3}     Trooper Filak then administered field-sobriety tests to Richards. He

testified that Richards exhibited two of six clues on the horizontal-gaze-nystagmus




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(“HGN”) test. Richards’s performance went downhill from there. He exhibited five of

eight clues on the walk-and-turn test. The one-leg-stand test resulted in two of four

clues. As a result, Trooper Filak placed Richards under arrest. In the police car, Mr.

Richards elaborated on the two beers that he had consumed: according to Trooper

Filak, he said that he had consumed two 24-ounce Stone IPAs.1

        {¶4}      Mr. Richards was charged with OVI, failure to maintain reasonable

control of his vehicle and refusal to submit to a chemical test.           He filed a motion to

suppress the field-sobriety tests, his statements and the observations and opinions of the

officers.

        {¶5}     At the suppression hearing, Trooper Filak testified as to his observations

at the time of the arrest. In addition, video taken from cameras in both of the police

cruisers that responded to the scene was admitted into evidence. The trial court granted

the motion to suppress regarding each of the field-sobriety tests, concluding that the

state had failed to meet its burden to show that the tests were performed in substantial

compliance with National Highway Traffic Safety Administration (“NHTSA”) standards.

The court determined further that the troopers lacked probable cause to arrest and that

statements made by Richards following his arrest were not admissible.

        {¶6}     This appeal followed. The state’s sole assignment of error is that the

court erred when it granted the motion to suppress.

                           II.    Shotgun Motion to Suppress

        {¶7}     As an initial matter, the state takes issue with the trial court’s conclusion

that it was required to provide specific evidence of substantial compliance with the



1 He was likely a couple of ounces off. According to the Stone Brewing Company website, Stone
IPA is sold in 22-0unce bottles (as well as traditional 12-ounce).                              See
http://www.stonebrewing.com/beer/year-round-releases (accessed June 5, 2016).                As is
characteristic of the India pale ale (IPA) style, the Stone IPA contains significantly more alcohol
per volume (6.9 percent) than a typical American lager or pilsner. Id.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



testing standards for field-sobriety tests.       It argues that because Richards filed a

“shotgun” motion to suppress that failed to include particularized allegations relating to

his arrest, its burden to demonstrate substantial compliance was “general and slight."

       {¶8}     This court has repeatedly discussed the problem of shotgun motions to

suppress in which “the defendant essentially regurgitates the administrative code and

then waits for the police officer to forget to testify about one of the aspects of

compliance.” Norwood v. Kahn, 1st Dist. Hamilton Nos. C-060497, C-060498 and C-

060499, 2007-Ohio-2799, ¶ 7; see State v. Fisher, 1st Dist. Hamilton No. C-080497,

2009-Ohio-2258, ¶ 19. We have held that in order to require the state to respond

specifically and particularly to the issues raised in the motion to suppress, the accused

must raise issues that can be supported by facts that are specific to those issues raised.

Kahn at ¶ 8. If the accused fails to point to facts to support his allegations that specific

regulations have been violated in a specific way, the burden on the state to establish

substantial compliance with those regulations is general and slight. Id.

       {¶9}      Richards’s motion plainly falls into the “shotgun” category. It consists

primarily of a regurgitation of the instructions required for each of the four tests and a

blanket assertion that the officer did not provide any of the required instructions. It

additionally provides a laundry list of citations to NHTSA regulations and a similar

blanket assertion that the arresting officer failed to substantially comply with each of the

regulations. There is nothing in Richards’s motion that suggests it was prepared for this

case in particular. It does not include even the most basic description of his accident or

arrest. As a result, we find the motion insufficient to elevate the state’s burden to prove

substantial compliance from general and slight. See Kahn at ¶ 8; see also State v. Fink,

12th Dist. Warren Nos. CA2008-10-118 and CA2008-10-119, 2009-Ohio-3538, ¶ 28.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶10}    The accused, however, may shift the burden from general to specific by

identifying facts that support his allegations on cross-examination. Kahn at ¶ 8. That is

what happened here. Mr. Richards raised several factual matters on cross-examination

that required the state to respond specifically and particularly to demonstrate

substantial compliance as to those issues.

                             III.    Field-Sobriety Tests

        {¶11}    Trooper Filak administered three field-sobriety tests—an HGN test, a

walk-and-turn test and a one-leg-stand test. The trial court found the results of all three

to be inadmissible because the state failed to prove the officers substantially complied

with the NHTSA standards. We agree that there was insufficient evidence of substantial

compliance as to the HGN test, but conclude that the court erred in suppressing the

results of the other tests

        {¶12}    Review of a motion to suppress is a mixed question of law and fact.

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We defer to

the trial court’s findings of historical facts unless the findings are clearly erroneous.

Cincinnati v. Bryant, 1st Dist. Hamilton No. C-090546, 2010-Ohio-4474, ¶ 20.             A

finding is clearly erroneous when, as the reviewing court, we are left with the definite

and firm conviction that a mistake has been committed after examining all the evidence.

State v. Luckett, 1st Dist. Hamilton Nos. C-070359, C-070360 and C-070361, 2008-

Ohio-1441, ¶ 11, citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68

S.Ct. 525, 92 L.Ed. 746 (1947).

                                     A. HGN Test

        {¶13}    First, Trooper Filak administered the HGN test. Trooper Filak moved a

pen in front of Richards’s eyes smoothly, making seven total passes from left to right.

The passes varied from one to six seconds per side. Trooper Filak estimated that, based



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                       OHIO FIRST DISTRICT COURT OF APPEALS



upon his common practice, he held the pen eight to ten inches from Richards’s eyes

during the test. He testified that Richards exhibited two of six possible clues on the

HGN test—the test revealed a lack of “smooth pursuit” for each eye.

        {¶14}    At the conclusion of the test, Trooper Filak stepped back, shrugged and

said, “You look all right.” A nearby officer told him to “do them all.” Trooper Filak then

proceeded to administer the other tests. There is some dispute as to what should be

made of Trooper Filak's statement. At the conclusion of the hearing, the judge said,

“The impression I got from that statement was I don’t think he was saying he looks all

right, let’s quit.” Rather, “[i]t’s like he looks all right, let’s continue.” The court added, “I

can go either way with that so, I won’t hang too much on that.” In its written opinion,

however, the court characterized the comment as reflecting the trooper's opinion that

Richards had performed satisfactorily on the test and that his detention should end.

        {¶15}    In determining to suppress the HGN test, the court pointed to Trooper

Filak’s statement as well as evidence of failure to comply with various NHTSA standards.

Because the basis of suppression was a failure to comply with NHTSA standards, we do

not believe that Trooper Filak’s statement—however one takes it—was particularly

relevant.   (Though of course, it could be relevant to the ultimate probable-cause

determination). Nonetheless, we agree with the court’s ultimate conclusion that the

state failed to demonstrate substantial compliance with NHTSA standards in regards to

the HGN test.

        {¶16}    It was the state’s burden to show by clear and convincing evidence that

the HGN test was performed in substantial compliance with the NHTSA standards. R.C.

4511.19(D)(4)(b); see State v. Henry, 12th Dist. Preble No. CA2008-05-008, 2009-

Ohio-10, ¶ 10. The trial court found that the state failed to demonstrate substantial

compliance in regards to several issues that had been brought out by the defense on



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                       OHIO FIRST DISTRICT COURT OF APPEALS



cross-examination. Specifically, it found that the arresting officer had failed to comply

with standards requiring that he move the stimulus (the pen) in an even manner, hold

the stimulus 12-15 inches from the suspect’s face and face the suspect away from nearby

traffic. It also concluded that on one of the passes, the officer had moved the stimulus

too quickly. Giving deference to the trial court’s factual findings, we conclude that the

court did not err in determining that the state had failed to meet its burden to show

substantial compliance. Thus, the HGN test was properly suppressed.

                                 B. Walk-and-Turn Test

       {¶17}      Following the HGN test, Trooper Filak conducted the walk-and-turn

test. He testified that Richards displayed five out of eight possible clues: he (1) failed to

hold position during instruction, (2) took ten steps instead of nine, (3) failed to take his

steps heel-to-toe, (4) stepped off the line and (5) conducted an improper turn.

       {¶18}      In deciding to suppress the test, the court cited several ways in which the

test did not meet the NHTSA standards. As an initial matter, the court found that the

arresting officer had failed to ask Richards if he understood the test instructions. With

respect to the five clues that Trooper Filak claimed Richards had displayed, the court

agreed that one clue was clearly present: the video showed Richards taking ten steps

rather than the requisite nine. But the remaining clues were found lacking. Contrary to

Trooper Filak’s testimony, the court determined that Richards had executed the turn

during the test properly. Further, the video did not show Richards’s feet during the test,

and the court did not credit Trooper Filak’s testimony that the defendant had not taken

heel-to-toe steps as instructed. Finally, the court discounted Richards’s failure to hold

his position during instruction and his stepping off the line, suggesting that his

performance could have been due to a leg or head injury or wind and noise caused by

passing trucks.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19}    Our review of the cruiser video confirms the court’s finding that

Richards performed the turn properly. Thus, the court was correct to disregard Trooper

Filak’s testimony as to that clue. And absent contrary evidence on the video, we must

defer to the court’s credibility determination regarding Trooper Filak’s testimony about

the heel-to-toe steps. See State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804

N.E.2d 433, ¶ 116; State v. Williams, 1st Dist. Hamilton Nos. C-060631 and C-

060668, 2007-Ohio-5577, ¶ 45.          But we cannot conclude that Trooper Filak’s

uncorroborated testimony about the missed heel-to-toe step and confusion on the

turn rendered all of the evidence concerning the test inadmissible.

       {¶20}    The video confirms that Richards lost his balance more than once,

including during the instructions and that he stepped off the line. In its decision, the

court opined that Richards’s performance may have been impacted by prevalent wind,

noise and road dirt or “a constant flow of tractor trailers traveling at a high rate of

speed.” But Mr. Richards did not ask any questions regarding the wind, noise, dirt or

traffic at the motion-to-suppress hearing. “[T]he state must have the opportunity to

intelligently respond in an informed manner to the specific claims.” State v. Plunkett,

12th Dist. Warren No. CA2007-01-012, 2008-Ohio-1014, ¶ 22. Indeed, while the video

does demonstrate a few passing tractor trailers, there is no evidence at all in the record

about wind or dirt. As a result, the state had no reason to address the potential wind,

noise, dirt or traffic at the hearing. And the state’s burden to demonstrate substantial

compliance with NHTSA standards relating to such conditions was “general and slight.”

See Kahn, 1st Dist. Hamilton Nos. C-060497, C-060498 and C-060499, 2007-Ohio-

2799, at ¶ 8. Following our review of the record, we conclude that the court’s finding

with respect to traffic, wind, noise and road dirt was clearly erroneous.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21}    The court also concluded that Richards’s leg or head injury “could” have

caused him to lose his balance or step off the imaginary line. Trooper Filak testified that

pursuant to NHTSA standards the walk-and-turn test should not be performed if the

subject is injured or cannot perform the test. However, throughout the stop, Mr.

Richards had no difficulty walking or standing, other than when he lost his balance

during the test. In the video, Mr. Richards repeatedly refuses medical attention and

insists that he is okay. When Richards’s counsel suggested in his closing that Richards

may have had a leg injury, the court pointed out that Richards told the officers he was

not injured and did not want to go to the hospital. Thus, we will disregard the court’s

unsupported speculation about a possible leg or head injury impacting the test results.

       {¶22}    Once we set aside the court’s reliance on the effect of traffic, wind, dirt

and noise and its reliance on the hypothetical injury, we do not believe that there was a

sufficient basis to suppress the walk-and-turn-test evidence. The state demonstrated

substantial compliance with the NHTSA standards. The court’s finding to the contrary

was in error.

                               C. One-Leg-Stand Test

       {¶23}    The final test implemented by Trooper Filak was the one-leg-stand test.

In its decision, the court noted that the video shows that Richards swayed and put his

foot down during the test.      In fact, Mr. Richards put his foot down five times.

Nonetheless, the court chose to suppress the results of this test as well. In doing so the

court again concluded that traffic, wind, noise and road dirt affected the test results. It

discounted Richards’s inability to complete the test without repeatedly putting his foot

down, explaining that “it is not clear if the proximity to the interstate traffic was a

contributing factor.” It also once again relied upon the possibility that some injury

might have affected Richards’s performance.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24}      Here, again, Mr. Richards did not include the proximity to traffic, noise,

wind and road dirt in his cross-examination, and thus the state’s burden to establish

substantial compliance with NHTSA standards relating to these conditions was “general

and slight.”     See Kahn 1st Dist. Hamilton Nos. C-060497, C-060498 and C-060499,

2007-Ohio-2799, at ¶ 8. As we did with the walk-and-turn test, we conclude that the

court’s reliance upon these matters was clearly erroneous. Similarly, it was error for the

court to rely upon unsupported speculation about a possible injury when Richards had

repeatedly said that he was not injured.

       {¶25}      The court also noted the requirement that the test be conducted on a

level surface.     During cross-examination, Trooper Filak was asked whether the

emergency lane where the test was conducted was “kind of sloped.” He responded, “It

might be slightly.” The video does not demonstrate that the surface was unreasonably

sloped. Based on Trooper Filak’s testimony and the video evidence, we conclude that

the state established substantial compliance in regard to this matter.

       {¶26}      Once we take out the matters upon which the trial court improperly

relied, we conclude that the state met its burden to demonstrate substantial compliance

with NHTSA standards relating to the one-leg-stand test.              The court erred in

suppressing the results of this test.

                                  IV.    Probable Cause

       {¶27}      The trial court found that, because the field-sobriety tests were

inadmissible, the troopers lacked probable cause to arrest Richards. Having determined

that the court erred in suppressing two of the three tests, we also conclude that the court

erred in finding that there was no probable cause to arrest.

       {¶28}      The standard for probable cause is whether “at the moment of the arrest,

the police had sufficient information, derived from a reasonably trustworthy source of



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                      OHIO FIRST DISTRICT COURT OF APPEALS



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

was driving under the influence.” State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d

952 (2000), superseded by statue on other grounds as recognized in State v. Boczar,

113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155. The test is objective. State v.

Deters, 128 Ohio App.3d 329, 333, 714 N.E.2d 972 (1st Dist.1998). We apply de novo

review to determine if the undisputed facts are sufficient to satisfy the legal standard of

probable cause to arrest. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

at ¶ 8; see Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

       {¶29}    A minor traffic violation coupled with the odor of alcohol alone is

insufficient to establish probable cause. Bryant, 1st Dist. Hamilton No. C-090546,

2010-Ohio-4474, at ¶ 25. But evidence of a minor traffic violation, the odor of alcohol,

plus “some reasonable indicia” of impairment is sufficient to establish probable cause.

Id.   Here, the accident that Richards was involved in was more than a minor traffic

violation: the vehicle was partially stuck in a tree and had to be removed by a tow truck,

and the vehicle sustained significant damage. Trooper Filak detected the odor of alcohol

when he approached Richards. His eyes were watery and bloodshot, and his speech was

slow and deliberate. Mr. Richard admitted to having consumed alcohol. Further, Mr.

Richards volunteered that he had a previous OVI.            An officer’s knowledge of a

defendant’s previous arrests is material to a probable-cause determination. See Beck v.

Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Craig, 110 Ohio St.3d

306, 312, 853 N.E.2d 621 (2006); State v. Kessler, 53 Ohio St.2d 204, 373 N.E.2d 1252

(1978); State v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-1816.

       {¶30}    On these facts we have little difficulty concluding that sufficient indicia

of impairment existed to cause a prudent officer to conclude that Richards was

impaired. Richards’s single-car accident at 2:30 a.m.; red and watery eyes; odor of



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                      OHIO FIRST DISTRICT COURT OF APPEALS



alcohol; slow and deliberate speech; prior OVI; admission to consuming alcohol; and

performance on the field-sobriety tests, taken together, established probable cause to

believe that Mr. Richards was driving under the influence. See State v. Sanders, 1st Dist.

Hamilton Nos. C-130193 and C-130194, 2014-Ohio-511, ¶ 11-12, (finding speeding and

weaving; glassy, bloodshot eyes; moderate odor of alcohol on the driver’s breath; and

admission to drinking, but no slurred speech, motor difficulty or clues on the one-leg-

stand test, was sufficient evidence to establish probable cause).

                             V.     Richards’s Statements

       {¶31}    After the court found that Trooper Filak lacked probable cause to arrest,

the trial court suppressed statements made by Richards following the arrest, including

his admissions concerning consumption of the Stone IPAs. The court did not specify the

basis for its ruling. One possible basis for the court’s ruling was that it considered the

statements to be the fruits of an illegal arrest. Another possible basis was Richards’s

contention that he had not been read his Miranda rights in the car. We have already

determined that there was probable cause to arrest so we are left with the question as to

whether Richards was properly “Mirandized.” See Miranda v. Arizona, 384 U.S. 436,

444, 86 S.Ct. 1602, 16 L.Ed.2d 692 (1966).

       {¶32}    Trooper Filak testified that immediately after placing Richards under

arrest he read him his Miranda rights. The defense argues that we should disregard

Trooper Filak’s testimony because there is no video evidence of Trooper Filak reading

Richards his rights. Trooper Filak testified that he forgot to hit the record button

initially and only hit the button as he was finishing reading Richards his rights. Trooper

Filak’s testimony was corroborated by a statement that is on the video. Mr. Richards

can be heard to say, “Aren’t you guys a little late on the Miranda thing?” Based on

Trooper Filak’s uncontroverted testimony, and Richards’s statement, we conclude that



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Trooper Filak did properly read Richards his Miranda rights. Thus, it was error for the

court to suppress statements made following the arrest.

                                  VI.    Conclusion

       {¶33}   The state’s sole assignment of error is sustained in part and overruled in

part. We therefore affirm the trial court’s judgment to the extent it suppressed the

results of the HGN test. The remainder of the judgment—the suppression of the results

of the walk-and-turn and one-leg-stand tests and Richards’s statements and the finding

that there was no probable cause to arrest—is reversed.      The case is remanded for

proceedings consistent with the law and this opinion.

                                                                 Judgment accordingly.

C UNNINGHAM , P.J., and M OCK , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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