[Cite as State v. Bull, 2014-Ohio-4230.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 14-COA-007
JASON P. BULL

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Ashland Municipal Court,
                                                Case No. 13-TRC-9198


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                          September 19, 2014


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


ANDREW N. BUSH                                  MATTHEW J. MALONE
Assistant Director of Law                       The Law Offices of Matthew J. Malone, LLC
1213 E. Main St.                                11 1/2 East 2nd Street
Ashland, Ohio 44805                             Ashland, Ohio 44805
Ashland County, Case No. 14-COA-007                                                  2

Hoffman, P.J.


       {¶1}   Defendant-appellant Jason P. Bull appeals the January 9, 2014 Judgment

Entry entered by the Ashland Municipal Court denying his motion to suppress. Plaintiff-

appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On November 28, 2013, Appellant was arrested and cited for speeding, in

violation of R.C. 4511.21(C); operating a motor vehicle while under the influence; in

violation of R.C. 4511.19(A)(1)(a); and operating a motor vehicle with a prohibited

breath alcohol concentration, in violation of R.C. 4511.19(A)(1)(d).

       {¶3}   On January 3, 2014, Appellant filed a motion to suppress alleging no

reasonable suspicion existed to subject him to Standardized Field Sobriety Tests, his

Horizontal Gaze Nastagmus Test was not performed in substantial compliance with

NHTDSA standards, and there was no probable cause for his arrest.

       {¶4}   The trial court conducted a hearing on the motion to suppress on January

6, 2014. At the hearing, Trooper Derek J. Cummins testified while on patrol in Ashland,

Ohio, he observed Appellant’s vehicle speeding in excess of the posted limit. Trooper

Cummins stopped Appellant's vehicle. Upon approaching the vehicle, he detected an

unspecified odor of alcohol coming from the vehicle, and observed Appellant had red,

glassy, bloodshot eyes. Appellant indicated to Trooper Cummins he had left a local

restaurant, and had consumed a “couple of beers.”

       {¶5}   Trooper Cummins removed Appellant from the vehicle to subject him to

the Standardized Field Sobriety Tests (SFSTs). He first performed the Horizontal Gaze

Nastagmus (HGN) test. Trooper Cummins testified he was trained to administer the
Ashland County, Case No. 14-COA-007                                                        3


test, but did not testify to the instruction manual by which he was trained. He observed

six clues on the HGN test. He then administered the Walk and Turn test. He again did

not testify to the manual by which he was trained. Finally, he administered the One Leg

Stand test. He did not observe any clues on that test.

       {¶6}   Trooper Cummins arrested Appellant, citing him for OVI, in violation of

R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(d), and speeding, in violation of R.C.

4511.21(C). After his arrest, Appellant registered .114 percent on the BAC DataMaster.

       {¶7}   Via Judgment Entry of January 9, 2014, the trial court overruled

Appellant’s motion to suppress.

       {¶8}   Appellant then entered a plea of no contest to the charge of OVI, in

violation of R.C. 4511.19(A)(1)(d). The trial court found him guilty via Judgment Entry of

February 7, 2014.

       {¶9}   Appellant appeals, assigning as error:

       {¶10} "I.    WHETHER       THE    TRIAL    COURT      ERRED      IN   OVERRULING

APPELLANT’S MOTION TO SUPPRESS EVIDENCE."

       {¶11} 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, 1 Ohio

St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,

86 Ohio App.3d 592 (4th Dist.1993). 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.
Ashland County, Case No. 14-COA-007                                                     4

Williams, 86 Ohio App.3d 37 (4th Dist.1993). 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, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio

App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held in

Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.”

       {¶12} Appellant maintains the trial court erred in denying his motion to suppress

as the arresting officer did not have reasonable suspicion to subject him to the SFSTs,

the HGN Test was not performed in substantial compliance with NHTSA standards and

there was no probable cause for arrest.

       {¶13} There are two standards applied to determine whether police have

legitimately stopped a vehicle. State v. Weinheimer, Warren App. No. CA2003-04-044,

2004-Ohio-801, ¶ 8. First, police may make an investigatory stop of a vehicle when they

have a “reasonable articulable suspicion” criminal activity has occurred or is occurring,

and the officer seeks to confirm or refute this suspicion of criminal activity. Id.

       {¶14} Second, police may stop a vehicle based on “probable cause” a traffic

violation, even minor, has occurred or is occurring. Dayton v. Erickson, 76 Ohio St.3d 3,
Ashland County, Case No. 14-COA-007                                                       5


11-12, 665 N.E.2d 1091, 1996-Ohio-431. Such is the case when an officer witnesses a

traffic violation and then stops the motorist for this traffic violation.

       {¶15} We find Officer Cummins had legal authority to stop Appellant's vehicle for

speeding.

       {¶16} Upon approaching the vehicle, Officer Cummins noticed a strong odor of

alcohol on Appellant's person, in addition to red, glassy, bloodshot eyes. Appellant then

admitted to consuming a few beers at the local restaurant. Based thereon, we find the

officer had probable cause to arrest Appellant.

       {¶17} Appellant next argues the tests were not administered in compliance with

NHTSA Standards.         In State v. Frazee, 4, the Twelfth District addressed the issue

presented herein, holding:

       {¶18} “In State v. Griton, Ashland App. No. 04COA032, 2005-Ohio-1043, the

defendant claimed that his motion to suppress should have been granted because the

HGN test was not conducted in compliance with the NHTSA standards. The Fifth

Appellate District noted that the NHTSA manual had not been entered into evidence at

the suppression hearing. Nevertheless, upon noting the arresting officer's testimony that

he had administered the HGN test according to the NHTSA standards, and reviewing

the record and the trial court's decision, the Fifth Appellate District found that the trial

court did not err in finding the HGN test was administered according to NHTSA

standards. Id. at ¶ 22. Thus, in the case at bar, the trial court could have ruled on

whether the HGN test was performed in compliance with the NHTSA standards despite

the fact the NHTSA manual was not introduced into evidence.
Ashland County, Case No. 14-COA-007                                                      6


      {¶19} “Alternatively, the trial court could have, sua sponte, taken judicial notice

of the NHTSA manual and its standards governing the administration of field sobriety

tests, including the HGN test. State v. Stritch, Montgomery App. No. 20759, 2005-Ohio-

1376, ¶ 16; Evid.R. 201. The Ohio Supreme Court has clearly indicated that the

applicable standardized test procedures regarding field sobriety tests are set forth in the

NHTSA manual. See State v. Homan, 89 Ohio St.3d 421, 732 N.E.2d 952, 2000-Ohio-

212; State v. Shepard, Miami App. No.2001-CA-34, 2002-Ohio-1817. ‘These standards

are not subject to reasonable dispute because they are capable of accurate and ready

determination by reference to the NHTSA manual itself, a source whose accuracy

cannot be questioned given its status as the seminal authority in this area.’ Stritch at ¶

16.

      {¶20} “Based upon the foregoing, we find that the trial court erred by finding

there was no probable cause to arrest Frazee for DUI simply and solely because the

NHTSA manual was not stipulated to or offered into evidence at the suppression

hearing. The state's second assignment of error is sustained.”

      {¶21} At the January 6, 2014 Suppression Hearing, Trooper Cummins testified

to his training, including training in the SFST and HGN tests. Tr. at p. 5. He testified he

was very successful in his training, and has been trained to determine both impaired

and non-impaired drivers. Tr. at p. 5-6. We note, however, Trooper Cummins did not

testify he was trained according to the NHTSA manual, nor did he reference the manual

in his testimony regarding his training. Further, Trooper Cummins did not testify he

performed or administered the tests in accordance with his training pursuant to the
Ashland County, Case No. 14-COA-007                                                   7


standards established in the NHTSA manual. Accordingly, the trial court could not take

judicial notice of the same.

       {¶22} Appellant's argument the HGN test was not conducted in substantial

compliance with NHTSA standards is sustained.       However, we find the error to be

harmless under the facts as set forth herein, given Appellant was sentenced on the per

se violation.

       {¶23} Trooper Cummins testified as to the events of November 28, 2013. He

testified used radar to check Appellant’s rate of speed as 38 in a 25, and activated his

emergency lights. Tr. at p. 7. Upon stopping the vehicle, he approached the driver’s

side and observed an odor of alcoholic beverage emitting from the vehicle. Tr. at p. 8.

Trooper Cummins also noticed Appellant had red, glassy, bloodshot eyes. Tr. at p. 8.

Upon inquiry, Appellant indicated he had consumed a few beers. We find these facts

alone provided probable cause to arrest Appellant for OMVI and request the breath test.

Following his arrest, Appellant registered a .114 on the BAC DataMaster.

       {¶24} The judgment of the Ashland Municipal Court is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur
