[Cite as State v. Nethers, 2019-Ohio-2898.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 18 CA 0076
JARED NETHERS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court
                                               Case No. 18 TRC 04238


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         July 16, 2019



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

TRICIA M. MOORE                                KEVIN J. GALL
ASSISTANT LAW DIRECTOR                         33 West Main Street
40 West Main Street                            Suite 109
Newark, Ohio 43055                             Newark, Ohio 43055
«Court» County, Case No. «Case_No»                                                      2

Wise, J.

       {¶1}   Appellant Jared A. Nethers appeals his OMVI conviction (based on a

prohibited concentration of a drug of abuse), following a no contest plea, in the Licking

County Municipal Court. The Appellee is the State of Ohio. The relevant facts leading to

this appeal are as follows.

       {¶2}   On the evening of January 15, 2018, Trooper Jordan Daniel of the Ohio

State Highway Patrol was driving in his marked cruiser on State Route 657 in Burlington

Township, Licking County. The area roads on that date were snow-covered. Shortly

before 7:00 PM, the trooper saw a 1997 Chevrolet SUV in a roadside ditch and stopped

to assist. He thereupon made contact with Appellant Nethers, whom he identified as the

driver of the vehicle. Appellant had his fourteen-year-old daughter with him.

       {¶3}   Trooper Daniel later testified that he observed an odor of alcohol on

appellant’s breath as he spoke with him. He also observed appellant’s eyes to be “glassy”

and bloodshot. Supp. Tr. at 12. When asked, appellant admitted to having had one beer

after work that day. Due to these observations, Trooper Daniels requested that appellant

submit to field sobriety tests.

       {¶4}   The first one administered was the horizontal gaze nystagmus (“HGN”) test.

Trooper Daniel recalled inter alia that “[d]uring the HGN [appellant] had to be instructed

several times on how to follow my finger.” Tr. at 29. The trooper concluded that appellant

exhibited four out of six possible clues on this test. Tr. at 17.

       {¶5}   Due to the snowy road conditions, Trooper Daniels did not administer the

walk and turn or the one-leg stand test. Instead, he administered two additional, non-

standardized tests: the “alphabet” test and the "flat finger dexterity” test, as further
Licking County, Case No. 18 CA 0076                                                       3

discussed infra. The trooper noted that these types of tests provide insight into a driver’s

ability to handle tasks under conditions of divided attention. Tr. at 23-24.

       {¶6}    Based on his overall observations and appellant’s performance of the

aforesaid three tests, the trooper placed appellant under arrest for operating a vehicle

while under the influence of alcohol and/or a drug of abuse (“OMVI”).

       {¶7}    On January 17, 2018, appellant was charged (trial court case number 18-

TRC-00630) with OMVI, in violation of R.C. 4511.19(A)(1)(a).

       {¶8}    On February 22, 2018, appellant filed a motion for leave to file an untimely

motion to suppress evidence under 18-TRC-00630. The trial court thereafter granted the

request for leave to file.

       {¶9}    On April 3, 2018, appellant was additionally charged (trial court case

number 18-TRC-04238) with OMVI (based on an allegation of a prohibited concentration

of a drug of abuse), in violation of R.C. 4511.19(A)(1)(j)(vii).

       {¶10} On the same day, appellant’s aforementioned motion to suppress came on

for an oral hearing. Via a judgment entry issued on May 3, 2018, the trial court denied the

motion to suppress.

       {¶11} On April 18, 2018, upon a motion filed by the State, case numbers 18-TRC-

00630 and 18-TRC-04238 were consolidated.

       {¶12} On August 16, 2018, upon appellant’s request, the trial court transferred

appellant’s motion to suppress evidence, and the corresponding judgment entry denying

that motion, to 18-TRC-04238.

       {¶13} On August 22, 2018, the matter came on for a change of plea and

sentencing hearing. At that time, appellant entered a no contest plea to one count of OVI
Licking County, Case No. 18 CA 0076                                                      4


in violation of R.C. 4511.19(A)(1)(j)(vii), in case number 18-TRC-04238. In exchange for

the defendant's plea in 18-TRC-04238, case number 18-TRC-00630 was dismissed.

      {¶14} Appellant was sentenced inter alia to serve thirty days in jail, with twenty-

seven of those days suspended, and he was placed on probation for a period of one year.

      {¶15} On August 23, 2018, appellant filed a notice of appeal. He raises the

following sole Assignment of Error:

      {¶16} “I.     THE TRIAL COURT ERRED IN DETERMINING THAT THE

ARRESTING OFFICER SUBSTANTIALLY COMPLIED WITH APPROVED TESTING

STANDARDS AND THAT THERE WAS PROBABLE CAUSE TO ARREST MR.

NETHERS FOR OVI.”

                                                I.

      {¶17} In his sole Assignment of Error, appellant contends the trial court erred in

concluding that Trooper Daniel substantially complied with field sobriety testing standards

and that there was probable cause to arrest appellant. We disagree.

      {¶18} 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.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. See State

v Karns, 196 Ohio App.3d 731, 2011-Ohio-6109, ¶ 31 (5th Dist.) (citations omitted). When

reviewing this third 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d
Licking County, Case No. 18 CA 0076                                                        5

1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v.

Guysinger (1993), 86 Ohio App.3d 592, 621 N .E.2d 726. The United States Supreme

Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d

911, that “... as a general matter determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal.”

       {¶19} As an initial matter, we are compelled to clarify our reading of the bounds

of the present analysis. A request made of a validly detained motorist to perform field

sobriety tests is generally outside the scope of the original stop, and must be separately

justified by other specific and articulable facts showing a reasonable basis for the request.

State v. Todd, 5th Dist. Ashland No. 14 COA 005, 2014-Ohio-4489, ¶ 19, quoting State

v. Anez (2000), 108 Ohio Misc.2d 18, 26, 738 N.E.2d 491. However, in this instance,

appellant’s sole assigned error challenges the “probable cause to arrest” stage of his

encounter with law enforcement on January 15, 2018. Appellant does not herein

challenge the “stop” of his SUV, as the trooper happened upon the scene of a vehicle in

a ditch and got out to provide assistance, and appellant does not argue that the trooper

lacked reasonable suspicion to conduct any field sobriety testing at the scene. In that

light, we will address appellant’s present arguments.1

       {¶20} Approximately twenty years ago, the Ohio Supreme Court decided State v.

Homan, 89 Ohio St.3d 421, 732 N.E.2d 952, 2000-Ohio-212. The Court therein held as

follows, at paragraph one of the syllabus: “In order for the results of a field sobriety test



1  Under Crim.R. 47, a motion to suppress “shall state with particularity the grounds upon
which it is made.” The appellate record before us does not contain a copy of the motion
to suppress, most likely because it was originally filed under the earlier-charged case, 18-
TRC-00630. We herein proceed under the presumption that the present issues were
raised in the suppression motion.
Licking County, Case No. 18 CA 0076                                                         6


to serve as evidence of probable cause to arrest, the police must have administered the

test in strict compliance with standardized testing procedures.”

       {¶21} However, in response to the Homan decision, the General Assembly

amended R.C. 4511.19. “Under the amended statute, 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. Instead, an officer may now testify concerning

the results of a field sobriety test administered in substantial compliance with the testing

standards.” See State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 9; State v. Allen,

5th Dist. Licking No. 05 CA 10, 2006-Ohio-30, ¶ 14; R.C. 4511.19(D)(4)(b).

       {¶22} Furthermore, in State v. Boczar (2007), 113 Ohio St.3d 148, 2007-Ohio-

1251, the Ohio Supreme Court upheld the constitutionality of R.C. 4511.19(D)(4)(b),

which, as indicated above, provides that the results of field sobriety tests are admissible

when the tests are administered in “substantial compliance” with testing standards. Id. at

¶ 28. But the State maintains the burden in a suppression hearing to show substantial

compliance with field sobriety testing methods. Todd, supra, at ¶ 25.

                                Horizontal Gaze Nystagmus Test

       {¶23} In the case sub judice, Trooper Daniel testified at the suppression hearing

that he commenced the HGN test by turning off his cruiser’s overhead lights and

positioning appellant off to the right side of the roadway, away from traffic. Supp. Tr. at

14. Trooper Daniel recalled that appellant had to be told multiple times to follow the

stimulus as required. Tr. at 17. The trooper also noted that in his experience, some people

tend to not follow the stimulus as instructed due to impairment or their familiarity with the
Licking County, Case No. 18 CA 0076                                                            7


test. Tr. at 18. The trooper testified that he performed the HGN test in compliance with

his training. Id. As indicated supra, the trooper observed four out of six clues. Tr. at 20.

       {¶24} Trooper Daniel also testified that his decision to position appellant off to the

right side of the cruiser was based on the danger presented by other vehicles on the

snow-covered roadway. Tr. at 15. Because the HGN test was conducted in that particular

location, the dashcam video provided in the present appellate record generally shows just

the right arm and shoulder of the trooper, while appellant is fully off-camera. However,

from our review of the DVD, it appears appellant is generally facing forward, i.e., in the

same direction as the nose of the cruiser is pointed.

       {¶25} Appellant’s chief concern under these circumstances is that the trooper

failed to eliminate the possibility of optokinetic nystagmus. As recently summarized by the

Ninth District Court of Appeals: “The NHTSA training manual explains that nystagmus

can result from neural activity occasioned by ‘watching strobe lights, rotating lights, or

rapidly moving traffic in close proximity.’ According to the NHTSA manual, this kind of

‘optokinetic nystagmus’ does not affect a properly administered HGN test.” State v. Tisch,

9th Dist. Wayne No. 18AP0003, 2018-Ohio-5323, ¶ 10.

       {¶26} Based on the video, the area in question appears to be mostly rural and, at

the time in question, lightly travelled. Nonetheless, just as Trooper Daniel’s voice is first

heard telling appellant to follow the pen at about 19:02:50, two vehicles, with headlights

on, pass by from the front, going off the left side of the screen at about 19:03:04. As the

HGN test continues off-camera, albeit with generally poor audio, another car’s headlights

come into view at about 19:04:10. Said vehicle goes off the left side of the screen at about

19:04:44, and the HGN portion of the testing appears to be completed by about 19:05:20.
Licking County, Case No. 18 CA 0076                                                            8


       {¶27} Other than the aforesaid three passing vehicles, none of which appear to

be moving fast, the only other noticeable automobile lights in the video during the HGN

test are the flashing hazard lamps on appellant’s SUV on the opposite side of the road.

No other vehicles are seen passing by until 19:08:10, at which time the trooper has

already moved on to additional testing, as discussed infra.

       {¶28} Under the circumstances presented, we find the record before us does not

support appellant’s arguments challenging the trooper’s utilization of the HGN test.

                                        Non-Standardized Tests

       {¶29} The first of the non-standardized tests administered by the trooper was an

alphabet test. Tr. at 23. Trooper Daniel first had appellant recite the alphabet from “A “to

“Z” in order to determine whether he knew the alphabet in its entirety. Tr. at 23. He then

directed appellant to recite the alphabet from “D” to “O.” Tr. at 24. On his initial attempt,

appellant continued past the letter “O.” On his second attempt, he went from “D” to “O,”

but he skipped the letter “G.” Tr. at 24-25, 37; Exhibit 2.

       {¶30} Trooper Daniel also had appellant perform what he classified as the "flat

finger dexterity test." Tr. at 21. This test required appellant to touch his thumb to his fingers

in sequence counting forward from one to four and then repeating the actions backward.

Tr. at 25. According to the trooper, appellant on his first attempt did not accurately count

as he was instructed. Tr. at 26. However, on the second attempt, appellant completed the

test correctly. Tr. at 27; Exhibit 2.

                                        Analysis and Conclusion

       {¶31} Appellant urges at several points in his brief that the trooper’s sole

standardized test, i.e., the HGN test, did not substantially comply with NHTSA standards
Licking County, Case No. 18 CA 0076                                                      9

and that the two non-standardized tests did not comport with any generally accepted

standards. However, “‘[i]t has been repeatedly emphasized that probable cause is a fluid

concept that is based upon a case-by-case evaluation of the totality of the

circumstances.’” Todd, supra, at ¶ 31, citing State v. Reid, 9th Dist. Lorain No.

12CA010265, 2013–Ohio–4274, ¶ 26 (Belfance, P.J., dissenting) (additional citations

omitted). Specifically, “*** all three [standardized] field sobriety tests need not be

administered for any one test result, properly administered, to be admissible into evidence

for consideration in determining probable cause for arrest.” State v. DeVault, 6th Dist.

Ottawa No. OT-12-027, 2013-Ohio-2942, ¶ 16, citing State v. Markin, 10th Dist. Franklin

No. 01AP-1208, 149 Ohio App.3d 274, 2002-Ohio-4326, 776 N.E.2d 1163, ¶ 15

(emphases omitted). Furthermore, the three cases appellant relies upon at page 8 of his

brief are unpersuasive, as we find they rely too heavily upon the superseded Homan rule

concerning NHTSA standards.2

      {¶32} Upon review, we find the record does not support appellant’s claim that the

HGN test was not in substantial compliance with the requisite standards, and in

conjunction with the trooper’s testimony and dashcam video regarding the additional

testing, as well as the undisputed facts concerning appellant’s condition during the events

in question (odor of alcoholic beverage, glassy and bloodshot eyes, and admission to

having recently consumed one beer), along with the presence of the SUV in the ditch, we

hold the trial court correctly decided the trooper had probable cause to arrest appellant

for OMVI.


2  State v. Nickelson, 6th Dist. Huron No. H-00-036, 2001 WL 1028878; State v. Ryan,
5th Dist. Licking No. 02-CA-00095, 2003-Ohio-2803; State v. Verity, 5th Dist. Stark No.
2009CA00156, 2010-Ohio-1151.
Licking County, Case No. 18 CA 0076                                           10


      {¶33} Accordingly, appellant’s sole Assignment of Error is overruled.

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

Municipal Court, Licking County, Ohio, is hereby affirmed.



By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.




JWW/d 0624
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