[Cite as State v. Hido, 2011-Ohio-2560.]




               IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellee                       :   C.A. CASE NO. 10CA0046

vs.                                             :    T.C. CASE NO. 09TRC10960
                                                                   09CRB04379
STACY HIDO                                       :

        Defendant-Appellant                      :

                                       . . . . . . . . .

                                           O P I N I O N

                      Rendered on the 27th day of May, 2011.

                                       . . . . . . . . .

Michael F. Sheils, Chief City Prosecutor, Atty. Reg. No.0021678,
50 East Columbia Street, Springfield, OH 45502
     Attorney for Plaintiff-Appellee

Charles M. Rowland, II, Atty. Reg. No.0065603, 2190 Gateway Drive,
Fairborn, OH 45324
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Stacy Hido, appeals from her conviction and

sentence for operating a motor vehicle while under the influence

of alcohol (OVI).

        {¶ 2} On September 6, 2009, at 10:10 a.m., an Ohio Highway

Patrol air patrol unit clocked Defendant’s vehicle at 85 m.p.h.
                                                                           2

in a 65 m.p.h. zone, Westbound on I-70 just East of State Route

54.   Sergeant Bush, who was in a marked cruiser and working with

the   air   patrol     unit,   stopped    Defendant’s   vehicle.     Before

Defendant pulled over to the side of the road and stopped, Sergeant

Bush observed her trying to stuff something underneath the

vehicle’s front seat.

      {¶ 3} When Sergeant Bush made contact with Defendant, the

driver and sole occupant of the vehicle, she admitted that her

driver’s license had expired.            After Defendant rolled down her

window,     Sergeant    Bush    smelled    a   strong   odor   of   alcohol.

Defendant’s eyes were glassy and bloodshot, and she was very

nervous.     When asked by Sergeant Bush, Defendant denied drinking

any alcoholic beverages.         Defendant stated that her step-father

had spilled beer on her.

      {¶ 4} Sergeant Bush asked Defendant for identification but

she   had none.      Sergeant Bush then asked Defendant to sit in the

front passenger seat of his cruiser so that he could obtain

information to identify her.             While Defendant was sitting in

Sergeant Bush’s cruiser, he noticed that a very strong odor of

alcohol came from Defendant’s breath.

      {¶ 5} Sergeant Bush asked Defendant to perform three field

sobriety tests.      The first test was the horizontal gaze nystagmus

(HGN) test.    Sergeant Bush observed six out of six possible clues.
                                                                        3

 The next test was the walk and turn test.     Defendant started before

the instructions were completed, and she raised her arms for

balance.    The final test was the one leg stand test.          Defendant

raised her arms for balance and put her foot down at the count

of seventeen.     Defendant’s having failed all three field sobriety

tests, Sergeant Bush arrested Defendant for OVI.

      {¶ 6} Another trooper, who had stopped to assist, discovered

an open container of beer underneath the front seat of Defendant’s

vehicle.      Defendant was transported to the Springfield Highway

Patrol post where she was given a breath test that produced a result

of .117, well over the legal limit.

      {¶ 7} Defendant was charged in Clark County Municipal Court

with speeding, R.C. 4511.21, driving on an expired license, R.C.

4510.12, and operating a motor vehicle with a prohibited breath

alcohol concentration, R.C. 4511.19(A)(1)(d).          Defendant filed

a motion to suppress the evidence, including the results of the

field sobriety tests, the Breathalyzer test, and the observations

and opinions of Sergeant Bush.        A hearing was held on the motion.

The   trial    court   overruled    Defendant’s   motion   to   suppress

evidence.

      {¶ 8} Defendant entered a plea of no contest to the OVI charge

and was found guilty by the court.     In exchange, the State dismissed

the other pending charges.         The trial court sentenced Defendant
                                                                  4

to ninety days in jail with eighty days suspended, a six hundred

and fifty dollar fine, and a two year driver’s license suspension.

 Defendant was also placed on six months probation and ordered

to complete an alcohol abuse assessment and treatment.   Defendant

filed a notice of appeal from her judgment of conviction.      The

trial court stayed execution of Defendant’s sentence pending this

appeal.

FIRST ASSIGNMENT OF ERROR

     “THE STATE FAILED TO SHOW PROBABLE CAUSE FOR THE ARREST AND

THE EVIDENCE SHOULD BE SUPPRESSED.”

     {¶ 9} Defendant does not contest that her initial stop for

speeding was lawful.     Dayton v. Erickson, 76 Ohio St.3d 3,

1996-Ohio-431.   Rather, Defendant claims that her arrest lacked

probable cause because police lacked a reasonable, articulable

suspicion that she was operating her vehicle while under the

influence of alcohol, which was necessary to justify her continued

detention for further investigation through field sobriety tests.

 State v. Evans (1998), 127 Ohio App.3d 56.   Defendant argues that

the evidence merely demonstrates that Defendant had consumed

alcohol, not that she was impaired.    State v. Knox, Greene App.

No. 2005CA74, 2006-Ohio-3039.   We disagree.

     {¶ 10} Defendant relies upon prior decisions of this court

holding that an odor of alcohol, or a slight or unspecified odor
                                                                           5

of alcohol, coupled with a de minimus traffic violation, glassy

bloodshot eyes, and an admission to having consumed one or two

beers, was insufficient to create a reasonable suspicion of driving

under the influence and justify further detention in order to

conduct field sobriety tests.        State v. Spillers (Mar. 24, 2000),

Darke App. No. 1504; State v. Dixon (Dec. 1, 2000), Greene App.

No.   2000-CA-30;    State   v.    Swartz,    Miami   App.   No.   2008CA31,

2009-Ohio-902.      This court has, however, repeatedly held that a

strong odor of alcohol alone may be sufficient to provide an officer

with reasonable suspicion of criminal behavior.              See: State v.

Marshall, Clark App. No. 2001CA35, 2001-Ohio-7081 (and the cases

cited therein).

      {¶ 11} Defendant was stopped for going 85 m.p.h. in a 65 m.p.h.

zone.   This is not a situation involving “nominal” speeding, but

rather one involving excessive speeding, which we have held is

some evidence of impairment.         State v. Syx, Montgomery App. No.

23589, 2010-Ohio-5880; State v. Gower, Darke App. No. 1616,

2003-Ohio-5403.     When Sergeant Bush made contact with Defendant,

he smelled a strong odor of alcohol coming from Defendant’s breath

and noticed that Defendant’s eyes were glassy and bloodshot and

that she was very nervous.        Simply put, these facts are sufficient

to give rise to a reasonable suspicion of impairment that justified

Defendant’s    detention     to     conduct     field    sobriety     tests.
                                                                             6

Furthermore, after Defendant failed all three field sobriety tests,

police had sufficient probable cause to arrest Defendant for OVI.

      {¶ 12} Defendant’s first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

      “THE STATE FAILED TO MOVE INTO EVIDENCE ANY STANDARDS BY WHICH

THE   COURT    COULD    FIND    SUBSTANTIAL    COMPLIANCE   FOR    CONDUCTING

STANDARDIZED FIELD SOBRIETY TESTS.”

      {¶ 13} Defendant argues that because the three field sobriety

tests Sergeant Bush administered were not shown to have been

conducted in substantial compliance with National Highway Traffic

Safety Administration (NHTSA) standards, the results of those tests

were inadmissible, and without those test results Sergeant Bush

lacked probable cause to arrest Defendant for OVI.

      {¶ 14} In    State       v.   Reed,   Montgomery   App.     No.   23357,

2010-Ohio-299, at ¶53, this court observed:

      {¶ 15} “The results of field sobriety tests are admissible

at trial if the State presents clear and convincing evidence that

the officer administered the tests in substantial compliance with

National      Highway    Traffic      Safety    Administration      (‘NHTSA’)

standards. R.C. 4511.19(D)(4)(b); State v. Schmitt, 101 Ohio St.3d

79, 801 N.E.2d 446, 2004-Ohio-37; State v. Davis, Clark App.

No.2008-CA-65, 2009-Ohio-3759. The State can satisfy its burden

without explicit testimony from the officer that he or she
                                                                        7

substantially complied with NHTSA standards in administering the

tests. Davis. Neither is the State required to actually introduce

the NHTSA manual or testimony concerning the standards, where the

record demonstrates, if only by inference, that the court took

judicial notice of the NHTSA standards. State v. Knox, Greene App.

No.2005-CA-74, 2006-Ohio-3039.”         That is the case here.

     {¶ 16} Evidence that the pertinent rules and regulations have

been followed in conducting field sobriety tests, if unchallenged,

constitutes a sufficient foundation for admission of the test

results.     State     v.   Murray,     Greene   App.   No.   2002-CA-10,

2002-Ohio-4809.      Only when a defendant sufficiently challenges

the evidence would the State then need to present more evidence

of more specific compliance.      Id.    For example, testimony by the

officer that he or she had been trained to perform the horizontal

gaze nystagmus (HGN) test, the walk and turn test, and the one-leg

stand test under NHTSA standards, and that the tests were performed

in the manner in which the officer had been trained, would suffice

for admission of the field sobriety test results, absent a challenge

to some specific way the officer failed to comply with NHTSA

standards.   Murray; Knox.

     {¶ 17} Defendant points to several matters in the NHTSA manual

that Sergeant Bush did not remember, most of which have nothing

to do with the administration of field sobriety tests.           Further,
                                                                          8

Defendant fails to specify in his brief the specific way in which

Sergeant Bush’s administration of the three field sobriety tests

 failed to comply with the requirements in the NHTSA manual for

administering those tests.

     {¶ 18} A review of Sergeant Bush’s testimony, particularly

his cross-examination, not surprisingly discloses that he has not

committed every detail in the NHTSA manual to memory, nor was his

administration of the three field sobriety tests in this case in

strict compliance with every detail in the NHTSA manual. Strict

compliance is not the standard, however.         Substantial compliance

is sufficient.     R.C. 4511.19(D)(4)(b); State v. Boczar, 113 Ohio

St.3d 148, 2007-Ohio-1251.        We agree with the trial court that

Sergeant    Bush’s   testimony,    taken    as   a   whole,   satisfy   the

substantial compliance requirement.

     {¶ 19} Sergeant Bush testified that he is trained to use

standardized field sobriety tests, including the HGN test, the

walk and turn test and the one leg stand test, that conform to

NHTSA standards.     He explained how to conduct the horizontal gaze

nystagmus (HGN) and walk and turn tests.         The parties stipulated

that Sergeant Bush is familiar with the walk and turn and one leg

stand tests in the NHTSA manual.           Sergeant Bush testified that

he performed the field sobriety tests in this case as he was trained

to do.     That evidence is sufficient to demonstrate substantial
                                                                  9

compliance with NHTSA standards for the field sobriety tests,

absent a challenge to some specific way Sergeant Bush failed to

comply with NHTSA standards in administering those tests.

     {¶ 20} Defendant’s second assignment of error is overruled.

THIRD ASSIGNMENT OF ERROR

     “THE DEFENDANT WAS PLACED IN CUSTODY WHEN SHE WAS SUBJECTED

TO FIELD SOBRIETY TESTS IN THE TROOPERS CRUISER AND WAS REMOVED

TO A DIFFERENT LOCATION FOR COMPLETION OF THE STANDARDIZED FIELD

SOBRIETY TESTS.”

     {¶ 21} After being stopped for speeding and having failed to

produce a driver’s license or any other form of identification,

Defendant was asked to sit in the front passenger seat of Sergeant

Bush’s cruiser while he gathered information to verify Defendant’s

identity.   The first field sobriety test, the horizontal gaze

nystagmus (HGN) test, was performed inside Sergeant Bush’s cruiser.

 Defendant argues that there was no legal justification to have

her sit in Sergeant Bush’s cruiser, which resulted in an illegal

detention/arrest.

     {¶ 22} We have previously held that a police officer may ask

 traffic offenders who are not carrying their driver’s license

or any other form of identification to sit in a police cruiser

while the officer verifies the person’s identity.   State v. Fritz,

Montgomery App. No. 23054, 2009-Ohio-6690; State v. Dozier,
                                                                             10

Montgomery App. NO. 23841, 2010-Ohio-2918.              Before putting the

person into the police cruiser, the officer may not lawfully perform

a weapons patdown if the only reason for putting the person in

the cruiser is for the officer’s convenience as he verifies the

person’s identity.        Id.       In the present case no pat-down was

performed.

       {¶ 23} Having Defendant sit in the front seat of Sergeant

Bush’s      cruiser   while    he    verified   Defendant’s   identity      and

administered the horizontal gaze nystagmus test did not convert

an investigative detention into a full blown arrest.               An arrest,

which must be supported by probable cause to be valid, is

characterized by four elements: (1) an intent to arrest; (2) under

real   or    pretended   authority;      (3)    accompanied   by   actual   or

constructive seizure or detention; (4) which is so understood by

the person arrested.          State v. Barker (1978), 53 Ohio St.2d 135,

139.     On the totality of the facts and circumstances in this case,

it is clear that Sergeant Bush had no intent to arrest Defendant

until after she failed all three field sobriety tests.               By that

time, Sergeant Bush clearly had probable cause to arrest Defendant

for OVI.

       {¶ 24} Defendant’s third assignment of error is overruled.

 The judgment of the trial court will be affirmed.

FROELICH, J. And HALL, J., concur.
                               11

Copies mailed to:

Michael F. Sheils, Esq.
Charles M. Rowland, II, Esq.
Hon. Thomas E. Trempe
