[Cite as State v. Garber, 2011-Ohio-5459.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
v.
                                                   Case No. 2011 CA 0004
BRIAN GARBER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 2009 TRC 5900


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 21, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

                                               PAUL MANCINO, JR.
PROSECUTING ATTORNEY                           75 Public Square, Suite 1016
60 East High Street                            Cleveland, Ohio 44113-2098
Mt. Gilead, Ohio 43338
                                               JACEDA BLAZEFF
                                               480 Park Avenue West
                                               Mansfield, Ohio 44906
Morrow County, Case No. 2011 CA 0004                                                    2

Wise, J.

       {¶1}   Defendant-Appellant Brian M. Garber appeals the October 26, 2010,

Judgment Entry of the Morrow County Municipal Court overruling his motion to

suppress.

       {¶2}   Plaintiff-Appellee State of Ohio did not file a brief in this matter.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   On December 12, 2009, State Highway Patrol Officer Morris Johnson was

working the 11:00 p.m. to 7:00 a.m. shift on Interstate 71. At or about 3:00 a.m. he

observed a vehicle that "appeared to be traveling over the posted speed limit." (T. at

20). After the vehicle passed the location where the Trooper was parked he turned

around at the nearest crossover and pursued the vehicle northbound. Trooper Johnson

stated that he observed the vehicle drift over the right of the fog line, and he proceeded

to stop Appellant’s vehicle. (T. at 21-22).

       {¶4}   Trooper Johnson testified that while he was talking to Appellant, he

noticed that his eyes were red and glassy, his speech was slurred and his body motions

were slow. (T. at 22). He further observed a moderate odor of alcohol coming from

Appellant’s breath as he spoke. (T. at 22).

       {¶5}   Based on these observations, Trooper Johnson stated that he thought

Appellant "might have been impaired" and that he asked Appellant to perform field

sobriety tests which included the one-legged stand, the walk and turn and also the

horizontal gaze nystagmus test. (HGN). (T. at 24).

       {¶6}    Appellant scored six clues on the HGN test. (T. at 29-34). On the one-

leg-stand test, Appellant swayed, raised his arms for balance, hopped and failed to look
Morrow County, Case No. 2011 CA 0004                                                      3


at his raised foot as instructed. (T. at 34-37). During the walk and turn test, Appellant

failed to touch heel to toe on a couple of steps, raised his arm approximately six inches

for balance, stepped off the line while walking and turned in the wrong direction. (T. at

38-40)

         {¶7}   Based on his observation and Appellant’s performance on the tests,

Trooper Johnson arrested Appellant and transported him to the Morrow County jail

where he submitted to a breathalyzer test which indicated Appellant had a BAC of .118.

         {¶8}   Appellant was charged with OVI, in violation of R.C. §4511.19(A)(1)(a)

and (A)(1)(d) and with Speeding, in violation of R.C. §4511.21(D)(2).

         {¶9}   On June 7, 2010, following a number of trial continuances, Appellant filed

a Motion to Suppress.

         {¶10} On August 9, 2010, the trial court held a hearing on Appellant’s motion.

         {¶11} At the hearing, the trial court heard testimony from Trooper Johnson.

         {¶12} On October 26, 2010, the trial court filed a detailed eleven-page Judgment

Entry denying Appellant’s motion to suppress.

         {¶13} On January 18, 2011, Appellant entered a plea of no contest.

         {¶14} By Judgment Entry filed January 18, 2011, the trial court sentenced

Appellant to 60 days in jail and a $1,000 fine, with 57 days and $600 suspended upon

certain conditions.

         {¶15} Appellant now appeals, assigning the following errors for review:
Morrow County, Case No. 2011 CA 0004                                                        4



                               ASSIGNMENTS OF ERROR

       {¶16} “I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE

COURT RULE [SIC] THAT DEFENDANT WAS STOPPED BASED UPON A

REASONABLE AND ARTICULABLE SUSPICION.

       {¶17} “II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS

CONSENT WAS NOT OBTAINED PRIOR TO DOING ANY FIELD SOBRIETY TEST.

       {¶18} “III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE

COURT OVERRULED THE MOTION TO SUPPRESS.”

                                                  I.

       {¶19} Appellant, in his first assignment of error, claims that the trial court erred in

finding reasonable, articulable suspicion for the traffic stop. We disagree.

       {¶20} Appellant argues that his stop and detention was unlawful and that such

constituted a “seizure” within the meaning of the Fourth Amendment

       {¶21}   In Whren v. United States (1996), 517 U.S. 806, the United States

Supreme Court held:

       {¶22} “The temporary detention of a motorist upon probable cause to believe

that he has violated the traffic laws does not violate the Fourth Amendment's prohibition

against unreasonable seizures, even if a reasonable officer would not have stopped the

motorist absent some additional law enforcement objective.” Whren at 1771. Less than

one month later, the Ohio Supreme Court reached a similar decision in City of Dayton v.

Erickson (1996), 76 Ohio St.3d 3, 665 N.E.2d 1091. In Erickson, the Court stated:

       {¶23} “Where a police officer stops a vehicle based on probable cause that a

traffic violation has occurred or was occurring, the stop is not unreasonable under the
Morrow County, Case No. 2011 CA 0004                                                         5


Fourth Amendment to the United States Constitution even if the officer had some

ulterior motive for making the stop, such as a suspicion that the violator was engaging in

more nefarious criminal activity.” Id. at syllabus. However, the Ohio Supreme Court has

emphasized that probable cause is not required to make a traffic stop; rather the

standard is reasonable and articulable suspicion. State v. Mays, 119 Ohio St.3d 406,

894 N.E.2d 1204, 2008-Ohio-4538 at ¶ 23.

       {¶24} Based on the above, neither the United States Supreme Court nor the

Ohio Supreme Court considered the severity of the offense as a factor in determining

whether the law enforcement official had a reasonable, articulable suspicion to stop a

motorist. In fact, the Ohio Supreme Court stated that “ * * * we conclude that where an

officer has an articulable reasonable suspicion or probable cause to stop a motorist for

any criminal violation, including a minor traffic violation, the stop is constitutionally valid

regardless of the officer's underlying subjective intent or motivation for stopping the

vehicle in question.” (Emphasis added.) City of Dayton v. Erickson, supra at 11–12, 665

N.E.2d 1091. See, also, State v. Rice, Fifth Dist. No. 2005CA00242, 2006–Ohio–3703

at ¶ 33–34; State v. Rice (Dec. 23, 1999), 5th Dist. No. 99CA48. If an officer's decision

to stop a motorist for a criminal violation, including a traffic violation, is prompted by a

reasonable and articulable suspicion considering all the circumstances, then the stop is

constitutionally valid. State v. Mays, supra at ¶ 8.

       {¶25} In Mays, supra, the defendant argued that his actions in that case - twice

driving across the white edge line - were not enough to constitute a violation of the

driving within marked lanes statute, R.C. 4511.33. Id. at ¶ 15. Appellant further argued

that the stop was unjustified because there was no reason to suspect that he had failed
Morrow County, Case No. 2011 CA 0004                                                        6


to first ascertain that leaving the lane could be done safely or that he had not stayed

within his lane “as nearly as [was] practicable,” within the meaning of R.C.

4511.33(A)(1). In rejecting these arguments, the Supreme Court noted, “the question of

whether appellant might have a possible defense to a charge of violating R.C. 4511.33

is irrelevant in our analysis of whether an officer has a reasonable and articulable

suspicion to initiate a traffic stop. An officer is not required to determine whether

someone who has been observed committing a crime might have a legal defense to the

charge.” Id. at ¶ 17.

       {¶26} In the case at bar, Trooper Johnson first made a visual estimate of the

speed of appellant's vehicle. He then substantiated that the vehicle was in fact traveling

at 82 miles per hour, a speed greater than the posted speed limit by use of the Python

radar unit.

       {¶27} The judge is in the best position to determine the credibility of witnesses,

and his conclusion in this case is supported by competent facts. See State v. Burnside

(2003), 100 Ohio St.3d 152, 154–55, 797 N.E.2d 71, 74. The fundamental rule that

weight of evidence and credibility of witnesses are primarily for the trier of fact applies to

suppression hearings as well as trials. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437

N.E.2d 583, 584. The officer's testimony represents competent, credible evidence that

Appellant was speeding. Therefore, the factual finding of the trial court that Appellant

was exceeding the speed limit is clearly not erroneous.

       {¶28} Reviewing courts should accord deference to the trial court's decision

concerning the credibility of the witnesses because the trial court has had the

opportunity to observe the witnesses' demeanor, gestures, and voice inflections that
Morrow County, Case No. 2011 CA 0004                                                     7

cannot be conveyed to us through the written record, Miller v. Miller (1988), 37 Ohio

St.3d 71. In Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d

1273, the Ohio Supreme Court explained: “[a] reviewing court should not reverse a

decision simply because it holds a different opinion concerning the credibility of the

witnesses and evidence submitted before the trial court. A finding of an error in law is a

legitimate ground for reversal, but a difference of opinion on credibility of witnesses and

evidence is not.” See also State v. DeHass (1967), 10 Ohio St.2d 230, syllabus 1.

       {¶29} We accept the trial court's conclusion that Appellant's violation of the

traffic laws gave Trooper Johnson reasonable suspicion to stop Appellant's vehicle

because the factual findings made by the trial court are supported by competent and

credible evidence. Thus, the trial court did not err when it denied Appellant's motion to

suppress on the basis that the initial stop of his vehicle was valid.

       {¶30} Appellant’s first assignment of error is overruled.

                                                 II.

       {¶31} In his second assignment of error, Appellant argues that he was denied

due process because his consent was not obtained prior to his performing the field

sobriety tests. We disagree.

       {¶32} It has been held that a person has been seized for purposes of the Fourth

Amendment when an officer conducts an investigative stop and detains the person in

order to administer field sobriety tests. State v. Robinette, 80 Ohio St.3d 234, 241,

1997-Ohio-343; State v. Cominsky, 11th Dist. No.2001-L-023, 2001-Ohio-8734, appeal

not allowed (2002), 95 Ohio St.3d 1421; State v. Litteral (June 14, 1994), 4th Dist. No.
Morrow County, Case No. 2011 CA 0004                                                        8


93CA510 (determining roadside sobriety tests are a “search” within the meaning of the

Fourth Amendment).

       {¶33} A warrantless search or seizure is presumptively unreasonable unless it

falls within one of the established exceptions to the warrant requirement. Katz v. United

States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514.

       {¶34} One exception permits police to conduct warrantless searches with the

voluntary consent of the individual. Schneckloth v. Bustamonte (1973), 412 U.S. 218,

222, 93 S.Ct. 2041, 2045 (stating “a search conducted pursuant to a valid consent is

constitutionally permissible”).

       {¶35} Another exception allows a police officer to stop and detain an individual

without a warrant when the officer has a reasonable suspicion based upon specific,

articulable facts that criminal activity has just occurred or is about to take place. Terry v.

Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868.

       {¶36} After making a valid investigatory stop, an officer who has reasonable and

articulable suspicion that a driver is intoxicated may conduct field sobriety tests. State v.

Perkins, 10th Dist. No. 07AP-924, 2008-Ohio-5060, ¶ 8; State v. George, 5th Dist. No.

07-CA-2, 2008-Ohio-2773, ¶ 22.

       {¶37} Even if we assume for purposes of our analysis, without so deciding, that

a field sobriety test is a “search” within the meaning of the Fourth Amendment, Trooper

Johnson had reasonable and articulable suspicion that Appellant was under the

influence of alcohol based on his observations that Appellant’s eyes were glassy and

bloodshot, his speech was slurred, and there was a moderate odor of alcohol.
Morrow County, Case No. 2011 CA 0004                                                       9


       {¶38} Based on the uncontradicted testimony of Trooper Johnson, we find the

above observations to be sufficient to administer the field sobriety tests.

       {¶39} Appellant’s second assignment of error is overruled.

                                                III.

       {¶40} In his third assignment of error, Appellant argues that the trial court erred

in overruling his motion to suppress. We disagree.

       {¶41} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning (1982),

1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993),

86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to apply the

appropriate test or correct law to the findings of fact. In that case, an appellate court can

reverse the trial court for committing an error of law. State v. Williams (1993), 86 Ohio

App.3d 37. Finally, assuming the trial court's findings of fact are not against the manifest

weight of the evidence and it has properly identified the law to be applied, an appellant

may argue the trial court has incorrectly decided the ultimate or final issue raised in the

motion to suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95

Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; Guysinger. As the United

States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, 1663, "…as a
Morrow County, Case No. 2011 CA 0004                                                       10


general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal."

       {¶42} In State v. Homan (2000), 89 Ohio St.3d 421, 732 N.E.2d 952, the

Supreme Court of Ohio held that in order for the field sobriety tests to serve as evidence

of probable cause to arrest, such tests must be performed in strict compliance with the

procedures promulgated by the NHTSA.

       {¶43} However, R.C. § 4511.19(D)(4)(b), effective April 9, 2003, provides in

pertinent part:

       {¶44} “(b) In any criminal prosecution or juvenile court proceeding for a violation

of division (A) or (B) of this section, of a municipal ordinance relating to operating a

vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of

abuse, or of a municipal ordinance relating to operating a vehicle with a prohibited

concentration of alcohol, a controlled substance, or a metabolite of a controlled

substance in the whole blood, blood serum or plasma, breath, or urine, if a law

enforcement officer has administered a field sobriety test to the operator of the vehicle

involved in the violation and if it is shown by clear and convincing evidence that the

officer administered the test in substantial compliance with the testing standards for any

reliable, credible, and generally accepted field sobriety tests that were in effect at the

time the tests were administered, including, but not limited to, any testing standards

then in effect that were set by the national highway traffic safety administration, all of the

following apply:

       {¶45} “(i) The officer may testify concerning the results of the field sobriety test

so administered.
Morrow County, Case No. 2011 CA 0004                                                      11


       {¶46} “(ii) The prosecution may introduce the results of the field sobriety test so

administered as evidence in any proceedings in the criminal prosecution or juvenile

court proceeding.

       {¶47} “(iii) If testimony is presented or evidence is introduced under division

(D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the

Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact

shall give it whatever weight the trier of fact considers to be appropriate.”

       {¶48} The Supreme Court of Ohio recognized that under this amended version

of R.C. §4511.19(D)(4)(b), “the arresting officer no longer needs to have administered

field sobriety tests in strict compliance with testing standards for the test results to be

admissible at trial.” State v. Schmitt, 101 Ohio St.3d 79, 801 N.E.2d 446, 2004-Ohio-37,

at ¶ 9. Rather, an officer may now testify concerning the results of a field sobriety test

administered in substantial compliance with the testing standards. Id. Additionally, “HGN

test results are admissible in Ohio without expert testimony so long as the proper

foundation has been shown both as to the administering officer's training and ability to

administer the test and as to the actual technique used by the officer in administering

the test.” State v. Boczar, 113 Ohio St.3d 148, 863 N.E.2d 155, 2007-Ohio-1251, at ¶

27.

       {¶49} This Court has previously held that field sobriety tests must be

administered in substantial compliance 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
Morrow County, Case No. 2011 CA 0004                                                12

administered. Homan, supra. Further, the Ohio Supreme Court has made clear that the

officer may testify regarding observations made during a defendant's performance of

standardized field sobriety tests even absent proof of “strict compliance.” State v.

Schmitt (2004), 101 Ohio St.3d 79, 84, 2004-Ohio-37 at ¶ 15, 801 N.E.2d 446, 450.

       {¶50} Appellant herein argues that Trooper Johnson failed to substantially

comply with the Ohio Administrative Code 3701-53-01 in administering the breathalyzer

test and the field sobriety tests.

       {¶51} With regard to the breathalyzer test, Appellant argues that Trooper

Johnson did not have sufficient knowledge as to whether the OAC requires that the

DataMaster breathalyzer machine be tested both before and after use.

       {¶52} Upon review of Trooper Johnson’s testimony, we find that when posed

with the question as to whether the Data Master machine’s instrument check procedure

was different than the Intoxilyzer 8000 machine, Trooper Johnson responded by saying

“[a]ctually I think the DataMaster does do an instrument check before and after.” When

questioned further as to same, he stated “I think it does. I’m not 100 percent sure

though.” (T. at 72).

       {¶53} Further, Trooper Johnson testified that there were no problems with the

machine on the night in question and that his senior operator’s certificate was up-to-

date. (T. at 43-44).

       {¶54} Based on the foregoing, and absent any showing of prejudice on the part

of Appellant, we find that Trooper Johnson substantially complied with the ODH

regulations in administering the breathalyzer test in this case.
Morrow County, Case No. 2011 CA 0004                                                    13


       {¶55} Appellant also argues that the HGN test was not administered properly.

Appellant argues that the test was administered to Appellant while he was seated but

that Trooper Johnson had been trained to perform the test while the subject was

standing.

       {¶56} Trooper Johnson testified, however, that the test can be administered

sitting down or standing up and that having the subject do the test while seated is for the

well being of the subject. (T. at 60-61).

       {¶57} Based on Trooper Johnson’s uncontradicted testimony, we find that he

substantially complied in administering the HGN test. Further, Appellant has failed to

show any prejudice with regard to having the test administered while seated.

       {¶58} Appellant also argues that the one-leg stand and walk-and-turn tests were

also administered improperly. With regard to these tests, Appellant argues that the trial

court’s finding that Trooper Johnson gave Appellant the “general instructions” required

for such tests does not meet the “substantial compliance” standard.

       {¶59} This Court has reviewed the trial court’s findings, Trooper Johnson’s

testimony and the video recording of Appellant performing the field sobriety tests. The

record demonstrates that in addition to Trooper Johnson relaying the proper verbal

instructions for each test to Appellant, he also physically demonstrated each test.

       {¶60} Based on the foregoing, we find substantial compliance with Ohio

Department of Health regulations.

       {¶61} Appellant’s third assignment of error is overruled.

       {¶62} Based on the foregoing, we find that the trial court did not abuse its

discretion in overruling Appellant's motion to suppress.
Morrow County, Case No. 2011 CA 0004                                            14


      {¶63} Appellant’s assignments of error are overruled.

      {¶64} For the reasons stated in the foregoing opinion, the judgment of the

Municipal Court of Morrow County , Ohio, is affirmed.



                                                                       By: Wise, J.

Hoffman, P. J., and Farmer, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
Morrow County, Case No. 2011 CA 0004                                         15


           IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
      Plaintiff-Appellee                   :
                                           :
v.                                         :         JUDGMENT ENTRY
                                           :
BRIAN GARBER                               :
                                           :
      Defendant-Appellant                  :         Case No. 2011 CA 0004




      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court, Morrow County, Ohio, is affirmed.

      Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
