[Cite as State v. Walters, 2012-Ohio-2429.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.      11CA0039-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RICHARD WALTERS                                       MEDINA MUNICIPAL COURT
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   10 TRC 05931

                                  DECISION AND JOURNAL ENTRY

Dated: June 4, 2012



        DICKINSON, Judge.

                                              INTRODUCTION

        {¶1}     Richard Walters told police that he had spent the day drinking beer at a golf

tournament that he had won, but he offered no explanation for stopping on the way home to park

behind a commercial building when the business was closed.            After questioning him and

administering field sobriety tests, police arrested him for operating a vehicle under the influence

of alcohol. Following his arrest, Mr. Walters submitted to a breathalyzer test at the police

station. The City of Medina charged him with operating a vehicle while under the influence of

alcohol and operating a vehicle with a prohibited breath alcohol concentration. After the trial

court denied his motion to suppress the evidence, Mr. Walters changed his plea to no contest to

the charge of operating a vehicle while under the influence of alcohol, and the City dismissed the

other charge. Following sentencing, Mr. Walters appealed, arguing that his arrest was not based

on probable cause, the results of the field sobriety tests should have been suppressed because the
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officer did not conduct them in substantial compliance with applicable standards, and the result

of the breathalyzer test should have been suppressed because his consent was the result of

coercion or duress. This Court affirms because, based on police observations and Mr. Walters’

admissions at the scene, police had probable cause to arrest him for operating a vehicle under the

influence of alcohol, his challenge to the field sobriety tests addressed the weight not

admissibility of the evidence, and his post-arrest breath test was conducted via statutory implied

consent.

                                        BACKGROUND

       {¶2}    At 7:45 p.m. on September 5, 2010, a police officer noticed a car parked near a

dumpster in the parking lot of a business that was closed. The officer noted that the car was not

parked in a parking space and a man was standing outside the open driver’s door. When he

approached, the officer found in the driver’s seat a woman who appeared to be extremely

intoxicated. The woman had great difficulty speaking, was not wearing any clothing from the

waist down, and required assistance locating her underwear and skirt. Police questioned the

couple and learned that they were driving home from a golf tournament at Hinckley Hills. The

man, identified as Mr. Walters, admitted that he had been drinking and that he had driven the car

from Hinckley. He also admitted that he had been engaged in sexual conduct with his female

companion when officers arrived.

       {¶3}    The City of Medina charged Mr. Walters with two first-degree misdemeanors for

operating a vehicle while under the influence of alcohol and operating a vehicle with a prohibited

breath alcohol concentration. R.C. 4511.19(A)(1)(a); 4511.19(A)(1)(d). After entering a plea of

not guilty, Mr. Walters moved the trial court to suppress all evidence obtained as a result of his

encounter with police including the officers’ observations, Mr. Walters’ statements, and the
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results of all sobriety testing. The trial court held a hearing on the motion and denied it. Mr.

Walters then changed his plea to no contest to the charge of operating a vehicle while under the

influence of alcohol, and the City dismissed the second charge.      Following his conviction, Mr.

Walters appealed.

                                    FIELD SOBRIETY TESTS

       {¶4}    Mr. Walters’ second assignment of error is that the results of the field sobriety

tests should have been suppressed because they were not conducted in substantial compliance

with applicable standards. The Ohio Supreme Court requires that, to support a motion to

suppress, a defendant must “state the motion’s legal and factual bases with sufficient

particularity to place the prosecutor and the court on notice of the issues to be decided.” State v.

Shindler, 70 Ohio St. 3d 54, 58, at syllabus (1994) (construing and following Rule 47 of the Ohio

Rules of Criminal Procedure and Xenia v. Wallace, 37 Ohio St. 3d 216 (1988)). “By requiring

the defendant to state with particularity the legal and factual issues to be resolved, the prosecutor

and court are placed on notice of those issues to be heard and decided by the court and, by

omission, those issues which are otherwise being waived.” Id. at 58.

       {¶5}    In his motion to suppress, Mr. Walters argued that the field sobriety tests were not

conducted in substantial compliance with the National Highway Traffic Safety Administration

standards because he informed the officers at the scene that he had an eye injury and torn

ligaments in both knees. According to Mr. Walters, the testing standards “indicate that these

injuries may affect the reliability and accuracy of the field sobriety tests.”         He made no

additional argument in support of his motion to suppress the results of the field sobriety testing

standards at the hearing on his motion. Although he filed a supplemental written motion to

suppress after the hearing, he did not include any argument regarding the field sobriety tests.
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       {¶6}    On appeal, however, Mr. Walters has argued that the officer deviated from the

testing manual in several specific ways. He has argued that the officer failed to give proper

instructions for two of the tests, failed to look for all possible clues during the walk-and-turn test,

failed to terminate the one-leg-stand test after thirty seconds, and scored an observation that was

not listed in the manual as a clue for intoxication for the walk-and-turn test. As Mr. Walker did

not present any of these arguments to the trial court for consideration, he has forfeited his

opportunity to argue them on appeal. See State v. Shindler, 70 Ohio St. 3d 54, 58 (1994).

       {¶7}    Therefore, Mr. Walters’ only argument in support of suppression of the field

sobriety test results is that various injuries may have affected the reliability and accuracy of the

results. This argument attacks the weight, not the admissibility of the evidence. Rather than

addressing the officer’s method of administering the tests, this argument focuses on the weight

the trier of fact should give the results in light of Mr. Walters’ injuries.          The trial court

acknowledged this concern by indicating that Mr. Walters’ failure to follow the stimulus during

the horizontal gaze nystagmus test “could be consistent with the nerve damage . . . or . . .

impair[ment] by alcohol.” Mr. Walters made no other arguments to the trial court in regard to

the suppression of the field sobriety test. Therefore, the trial court properly denied his motion to

suppress the field sobriety test results. Mr. Walters’ second assignment of error is overruled.

                                PROBABLE CAUSE TO ARREST

       {¶8}    Mr. Walters’ first assignment of error is that his motion to suppress evidence

should have been granted because the arresting officer lacked probable cause to arrest him or to

form an opinion that he was under the influence of alcohol while driving a car. A motion to

suppress evidence presents a mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d

152, 2003–Ohio–5372, ¶ 8. Generally, a reviewing court “must accept the trial court’s findings
                                                5


of fact if they are supported by competent, credible evidence.” Id. But see State v. Metcalf, 9th

Dist. No. 23600, 2007–Ohio–4001, ¶ 14 (Dickinson, J., concurring). The reviewing court “must

then independently determine, without deference to the conclusion of the trial court, whether the

facts satisfy the applicable legal standard.” Burnside, 2003–Ohio–5372, at ¶ 8.

       {¶9}    In determining whether police had probable cause to arrest an individual for

operating a vehicle while under the influence of alcohol, we must consider the totality of the

facts and circumstances existing at the moment of arrest. State v. Homan, 89 Ohio St. 3d 421,

427 (2000) (superseded by statute on other grounds as set forth in R.C. 4511.19(D)(4)(b)).

Probable cause exists if, “at the moment of arrest, the police had sufficient 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.” Id.

       {¶10} Even without positive results on field sobriety testing, the totality of the facts and

circumstances may support probable cause to arrest for a violation of Section 4511.19(A) of the

Ohio Revised Code. State v. Sunday, 9th Dist. No. 22917, 2006-Ohio-2984, at ¶ 32; see State v.

Homan, 89 Ohio St. 3d 421, 427 (2000) (superseded by statute on other grounds as set forth in

R.C. 4511.19(D)(4)(b)). “The amount of evidence necessary for probable cause to suspect a

crime is being committed is less evidence than would be necessary to support a conviction of that

crime at trial.”   State v. McGinty, 9th Dist. No. 08CA0039-M, 2009-Ohio-994, ¶ 11. “It is

necessary to show merely that a probability of criminal activity exists, not proof beyond a

reasonable doubt, or even proof by a preponderance of evidence that a crime is occurring.” Id.

       {¶11} In this case, Officer Daniel Hazek testified that he approached Mr. Walters’ car

because he noticed it parked behind the University Hospitals Urgent Care Center on Route 18 in

Medina on a Sunday evening when the business was closed. The car was “parked at random”
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near a dumpster and not within a marked parking space. This raised the officer’s suspicions.

According to Officer Hazek, when he first pulled up behind the car, he saw Mr. Walters outside

near the driver’s door behaving oddly and acting “[v]isibly nervous.” The officer explained that

Mr. Walters avoided eye contact with him and “[t]here was no rhyme or reason to what he was

doing . . . just standing outside of the driver’s door.” He testified that he parked several car

lengths away from the vehicle and did not turn on his overhead lights. He said that, when he

pulled up, Mr. Walters went to the trunk of his car, removed two sets of golf clubs, set them up,

then put them back into the trunk.

       {¶12} When the officer approached and asked Mr. Walters what he was doing, Mr.

Walters “babbled a little bit, something about golf.” Officer Hazek said that he could not

understand some of what Mr. Walters said, but he “knew immediately” that Mr. Walters was

intoxicated. He explained that he smelled a strong odor of alcohol emanating from Mr. Walters,

his actions were not deliberate, he was “fumbling around,” his eyes were “very glassy,” and his

speech was slowed and slurred. The officer also testified that there was an extremely intoxicated

woman in the driver’s seat of the car. She was naked from the waist down, her speech was very

difficult to understand, and she smelled strongly of alcohol. Mr. Walters told police that he was

engaging in sexual conduct with his female passenger when the first officer approached them.

       {¶13} Officer Cliff Harrison corroborated Officer Hazek’s assessment that the smell of

alcohol was coming directly from Mr. Walters. He also testified that Mr. Walters’ eyes were red

and glassy, but did not believe that his speech was impaired. Officer Harrison testified that Mr.

Walters said that he had driven the car from Hinckley Hills where he had spent the day playing

golf. The officer testified that Mr. Walters admitted to drinking seven beers during a golf

tournament between nine o’clock in the morning and three-thirty in the afternoon. Mr. Walters
                                                  7


told the officer that, because he won the tournament he had stayed at the golf club until seven

o’clock to attend an awards banquet before driving home.

       {¶14} Officer Harrison administered three field sobriety tests:           the horizontal gaze

nystagmus test, the one-leg-stand, and the walk-and-turn. The trial court determined that Mr.

Walters told the officers that he was unable to see well out of his right eye because of nerve

damage. The evidence showed that Mr. Walters has a visible scar near his right eye. During the

test, Mr. Walters’ eyes did not follow the stimulus, so the officer was not able to obtain a score.

The trial court noted that the failure to follow the stimulus could have been caused by either

intoxication or nerve damage to the eye. During the one-leg-stand test, Mr. Walters miscounted,

but he also balanced on one leg for almost 40 seconds and did not step off the line according to

the trial court. The court also noted that Mr. Walters “clearly had trouble maintaining balance on

one of the steps” of the walk-and-turn test. Apparently in light of these inconclusive results,

despite denying the motion to suppress, the trial court refused to consider Mr. Walters’

performance on the field sobriety tests in its determination of probable cause to arrest.

       {¶15} Mr. Walters has argued that there was not probable cause to arrest him given that

there was no evidence that he had driven erratically, caused a collision, or had any impairment of

his motor skills. The evidence showed that he had no trouble retrieving his driver’s license,

getting the golf clubs in and out of the car, or following the officers’ directions at the scene.

       {¶16} Our review of the record indicates that, even without considering his performance

on the field sobriety tests, at the moment of the arrest, the officers had gathered sufficient

information to “cause a prudent person to believe that the suspect was driving under the

influence.” State v. Homan, 89 Ohio St. 3d 421, 427 (2000) (superseded by statute on other

grounds as set forth in R.C. 4511.19(D)(4)(b)); see State v. McGinty, 9th Dist. No. 08CA0039-
                                                   8


M, 2009-Ohio-994, at ¶ 20. The officers observed that Mr. Walters’ eyes were red and glassy,

his speech was slurred, and a strong odor of alcohol was emanating from his person. Inside the

car, police found an extremely intoxicated, half-naked woman. Mr. Walters admitted to drinking

seven beers and driving the car from Hinckley Hills to Medina. As police had probable cause to

believe that Mr. Walters was driving under the influence, his first assignment of error is

overruled.

                                    BREATHALYZER TEST

       {¶17} Mr. Walters’ third assignment of error is that the result of the breathalyzer test

should have been suppressed because it was obtained through duress and police coercion. He

has argued that the officer at the scene misstated the law and threatened to take blood by force if

Mr. Walters refused to submit to a breath test. The State has argued that, even if police officers

incorrectly advised Mr. Walters about the law applicable to a forcible blood draw, the remedy is

not to suppress the evidence of the breath test.

       {¶18} Mr. Walters refused to submit to the portable breath test at the scene, but did

submit to BAC DataMaster testing at the Montville Township Police Department after his arrest.

He elicited some testimony from officers at the suppression hearing tending to show that one or

more of them may have erroneously advised him that they had the authority to draw blood by

force if he refused to submit to the breathalyzer. Mr. Walters has argued that his consent was not

freely and voluntarily given based on the totality of the circumstances. He has correctly argued

that, with just one prior conviction for operating under the influence, the statute did not authorize

police to forcibly draw his blood if he refused the breath test. See R.C. 4511.19.1(A)(5)(a),

effective October 16, 2009 and 4511.19(G)(1)(c), effective April 7, 2009. The State has argued
                                                  9


that, even if police violated Mr. Walters’ statutory right to refuse the breath test, the results are

still constitutionally admissible.

        {¶19} “As part of obtaining the privilege to drive in Ohio, a driver implicitly consents to

a search, through means of a chemical test, to determine the amount of intoxicating substances in

the driver’s body upon the driver’s arrest for [operating a vehicle under the influence].” State v.

Hoover, 123 Ohio St. 3d 418, 2009-Ohio-4993, ¶ 14 (2009). In September 2010, when Mr.

Walters was arrested, the implied consent statute provided that “[a]ny person who operates a

vehicle . . . within this state . . . 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 . . . if arrested for a violation of division (A) or (B) of section 4511.19 of the Revised

Code . . . .” R.C. 4511.19.1(A)(2), effective October 16, 2009. The statute provided that “[t]he

chemical test . . . under division (A)(2) of this section shall be administered at the request of a

law enforcement officer having reasonable grounds to believe the person was operating . . . a

vehicle . . . in violation of a division . . . identified in division (A)(2) of this section.” R.C.

4511.19.1(A)(3), effective October 16, 2009.

        {¶20} The Ohio Supreme Court has determined that the implied consent statute is

constitutional, violating neither the search and seizure requirements of the Fourth Amendment

nor the Fifth Amendment right against self-incrimination. State v. Hoover, 123 Ohio St. 3d 418,

2009-Ohio-4993, at ¶ 17 (citing State v. Starnes, 21 Ohio St. 2d 38, paragraph one of the

syllabus (1970)). It has held that “[o]ne accused of intoxication has no constitutional right to

refuse to take a reasonably reliable chemical test for intoxication.”          Id. at ¶ 19 (quoting

Westerville v. Cunningham, 15 Ohio St. 2d 121, paragraph two of the syllabus (1968)). The

statute in effect in September 2010 required an officer who has arrested someone for operating
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under the influence to “give advice in accordance with [Section 4511.19.2]” by reading to the

person the “form” contained in Section 4511.19.2(B) before requesting that the person submit to

a chemical test. R.C. 4511.19.2(B), effective April 7, 2009. The form advised that a refusal to

submit to the requested chemical tests would result in an immediate suspension of driving

privileges and, if the person has a prior conviction for operating under the influence, a refusal

would result in “increased penalties” upon conviction. R.C. 4511.19.2(B).

       {¶21} Thus, the General Assembly eliminated the requirement of actual consent under

these circumstances. City of Twinsburg v. Lisch, 9th Dist. Nos. 19627, 19628, 2000 WL 150755,

*5 (Feb. 9, 2000) (quoting State v. O’Grisek, 9th Dist. No. 2130-M, 1993 WL 46651, *3 (Feb.

24, 1993)). Under the statutory scheme, “a chemical test administered in accordance with R.C.

[4511.19.1] following arrest, pursuant to implied consent, does not constitute an unreasonable

search and seizure.” Id.     “[T]he exclusionary rule will not ordinarily be applied to suppress

evidence which is the product of police conduct that violates a statute but falls short of a

constitutional violation, unless specifically required by the legislature.” State v. French, 72 Ohio

St. 3d 446, 449 (1995); see State v. Hannon, 1st Dist. Nos. C-950289, C-950290, 1995 WL

763677, *2 (Dec. 29, 1995). There is no dispute that the officers arrested Mr. Walters before

advising him of his rights, reading the proper form, and requesting the breath test. Under these

circumstances, even assuming that the officers misstated their power to forcibly draw blood from

Mr. Walters, the exclusionary rule does not require suppression of the test result. Mr. Walters’

third assignment of error is overruled.

                                          CONCLUSION

       {¶22} Mr. Walters’ first assignment of error is overruled. Police had probable cause to

arrest because, at the moment of the arrest, police had gathered sufficient information to cause a
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prudent person to believe that Mr. Walters was driving under the influence.              His second

assignment of error is overruled because the trial court correctly refused to suppress the results of

his field sobriety tests. His third assignment of error is overruled because the trial court correctly

refused to suppress the results of his chemical breath test obtained via implied consent. The

judgment of the Medina Municipal Court is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      CLAIR E. DICKINSON
                                                      FOR THE COURT


WHITMORE, P. J.
MOORE, J.
CONCUR
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APPEARANCES:

MICHAEL L. LARIBEE, Attorney at Law, for Appellant.

GREGORY HUBER, Law Director, and ARTHUR E. FOTH, Assistant Prosecuting Attorney,
for Appellee.
