[Cite as State v. Parks, 2013-Ohio-2492.]


                                        COURT OF APPEALS
                                         LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellant                     :   Hon. John W. Wise, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :
MEGAN K. PARKS                                 :   Case No. 12-CA-87
                                               :
                                               :
       Defendant-Appellee                      :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County
                                                   Municipal Court, Case No. 12-TRC-
                                                   08828



JUDGMENT:                                          AFFIRMED IN PART, REVERSED
                                                   IN PART, AND REMANDED



DATE OF JUDGMENT ENTRY:                            June 12, 2013




APPEARANCES:

For Plaintiff-Appellant:                           For Defendant-Appellee:

J. MICHAEL KING                                    ROBERT E. CALESARIC
PATASKALA CITY PROS. OFFICE                        35 South Park Place, Suite 150
35 South Park Place, Suite 35                      Newark, OH 43055
P.O. Box 4010
Newark, OH 43058-4010
Licking County, Case No. 12-CA-87                                                      2



Delaney, J.


       {¶1} The State of Ohio appeals from the November 6, 2012 judgment entry of

the Licking County Municipal Court granting in part and overruling in part the

suppression motion of appellee Megan K. Parks.

                           FACTS AND PROCEDURAL HISTORY

       {¶2} This case arose around 3:00 a.m. on August 5, 2012 when Officer Colles

of the Pataskala City Police Department was on routine patrol in uniform and driving a

marked patrol vehicle equipped with a camera mounted on the windshield. Colles was

traveling eastbound on Broad Street in the area of Etna Parkway when he passed

Parks driving westbound. Colles observed the tire of Park’s vehicle over the right side

of the white or “fog” line on the roadway, to the extent that he described the line as

between the two front tires of the vehicle.

       {¶3} Colles turned around and caught up to Parks, activating his overhead

lights. Parks had pulled into a residential driveway and stopped, turning off her lights,

despite the fact that she did not live there. Colles approached the driver’s side of the

vehicle, explained the reason for the stop, and asked for Parks’ information. Detecting

a slight odor of an alcoholic beverage, Colles asked Parks if she had had anything to

drink, and she said no. Colles asked her to say the alphabet and noted she slurred a

few letters and skipped some letters. Parks also had bloodshot, glassy eyes.

       {¶4} Colles asked Parks to step out of the vehicle and proceeded to

administer a series of standardized field sobriety tests (SFSTs). Once Parks was
Licking County, Case No. 12-CA-87                                                        3


outside the vehicle, Colles noted a more distinct odor of an alcoholic beverage about

her person.

       {¶5} Colles was trained in the administration of SFSTs in accord with

guidelines from the National Highway Traffic Safety Administration (NHTSA).

       {¶6} Parks first submitted to the horizontal gaze nystagmus (HGN) test, and

Colles testified that he observed six out of six possible clues of impairment. Next,

Parks performed the walk-and-turn test, on which she indicated three clues of

impairment. Finally, on the one-leg stand test, Colles noted three clues of impairment.

       {¶7} Parks was placed under arrest for O.V.I and later refused to submit to a

breath test. Colles further testified he read appellee the BMV 2255 form and

Mirandized her. At some point after he requested that she take a breath test, and he

made her aware of the legal implications of refusing to do so, Parks asked to call a

lawyer. Colles testified he did not permit her to call a lawyer.

       {¶8} Parks was charged by uniform traffic ticket with one count of O.V.I.

pursuant to R.C. 4511.19(A)(1)(a) and one count of a marked lanes violation pursuant

to R.C. 4511.33.    She entered pleas of not guilty and filed a motion to suppress

evidence flowing from the traffic stop and resulting arrest. A hearing was held and the

trial court sustained the motion in part and overruled it in part. Relevant to this appeal,

the trial court suppressed the portion of the HGN test involving the onset of nystagmus

at maximum deviation, finding the officer did not conduct that portion of the test in

substantial compliance with NHTSA protocols. The trial court also suppressed the

evidence that Parks refused to submit to a breath test, finding that her request to

speak with an attorney when asked to take a breath test did not constitute a refusal.
Licking County, Case No. 12-CA-87                                                    4


       {¶9} The State now appeals from the judgment entry of the trial court

sustaining Parks’ motion to suppress in part and overruling it in part.

                                 ASSIGNMENTS OF ERROR

       {¶10} Appellant raises two Assignments of Error:

       {¶11} “I.    THE TRIAL COURT ERRED WHEN IT SUPPRESSED THE

MAXIMUM DEVIATION PORTION OF THE HORIZONTAL GAZE NYSTAGMUS

TEST.”

       {¶12} “II. THE TRIAL COURT ERRED IN APPLYING AN EXCLUSIONARY

RULE TO THE DEFENDANT’S REQUEST TO SPEAK WITH AN ATTORNEY

BEFORE REFUSING THE REQUESTED BREATH TEST.”

                                          ANALYSIS

                                            I.


       {¶13} The State first asserts the trial court erred in suppressing the maximum

deviation portion of the HGN test. We disagree.

       {¶14} During a suppression hearing, the trial court assumes the role of trier of

fact and, as such, is in the best position to resolve questions of fact and to evaluate

witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996).

A reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142,

145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate

court must independently determine as a matter of law, without deference to the trial

court's conclusion, whether the trial court's decision meets the applicable legal
Licking County, Case No. 12-CA-87                                                         5


standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.

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

to suppress on appeal. First, an appellant may challenge the trial court's finding of

fact. In reviewing a challenge of this nature, an appellate court must determine

whether the trial court's findings of fact are against the manifest weight of the

evidence. See, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v.

Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (1991). 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. See, Williams, supra. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issues raised in a 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, 96, 620 N.E.2d 906

(8th Dist.1994).

         {¶16} Parks was charged with one count of O.V.I. pursuant to R.C.

4511.19(A)(1)(a) which states, “No person shall operate any vehicle, streetcar, or

trackless trolley within this state, if, at the time of the operation, any of the following

apply:     [t]he person is under the influence of alcohol, a drug of abuse, or a

combination of them.” R.C. 4511.19(D)(4) states the following:

               As used in divisions (D)(4)(b) and (c) of this section, ‘national

               highway traffic safety administration’ means the national highway
Licking County, Case No. 12-CA-87                                                   6


            traffic safety administration established as an administration of the

            United States department of transportation under 96 Stat. 2415

            (1983), 49 U.S.C.A. 105.

            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:

            (i) The officer may testify concerning the results of the field

            sobriety test so administered.
Licking County, Case No. 12-CA-87                                                      7


             (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.

             (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.

      {¶17} Errors that are excusable under the substantial-compliance standard are

characterized as “minor procedural deviations.” State v. Burnside, 100 Ohio St.3d

152, 797 N.E.2d 71, 2003-Ohio-5372, ¶ 34, citing State v. Homan, 89 Ohio St.3d 421,

426, 732 N.E.2d 952 (2000).       The burden is on appellant to show by clear and

convincing evidence that the officer administered the field sobriety tests in substantial

compliance with the NHTSA guidelines. State v. Verity, 5th Dist. No. 2009CA00156,

2010-Ohio-1151, ¶ 20; R.C. 4511.19(D)(4)(b).

      {¶18} The State takes issue with the trial court’s findings of fact with respect to

Colles’ administration of the HGN test. The trial court found that when Colles checked

Parks’ eyes for nystagmus at maximum deviation, he checked the right eye three

times but the left eye only once.     (The NHTSA manual requires both eyes to be

checked twice.)   The trial court further found this error to be more than a “minor

procedural deviation” and therefore suppressed that portion of the HGN test. Verity,

supra, 2010-Ohio-1151.
Licking County, Case No. 12-CA-87                                                        8


         {¶19} We are bound to give deference to the trial court’s findings of fact and to

accept those supported by some competent, credible evidence. Colles’ testimony at

the hearing was equivocal at best, admitting that only one “pass” was made of Parks’

left eye with the stimulus although she stopped following it.           (T. 43-44).    The

dashboard camera video of the HGN test shows Colles making multiple passes of

each eye with the stimulus, but it is not clear which portion of the test Colles was on,

with which pass: lack of smooth pursuit, nystagmus at maximum deviation, or onset of

nystagmus prior to 45 degrees. The trial court was in the best position to resolve the

ambiguities and evaluate the credibility of the witness, and we conclude the trial

court’s findings of fact as to the error on the HGN test is supported by the evidence.

         {¶20} We find the trial court did not err is suppressing the maximum deviation

portion of the HGN test. The first assignment of error is overruled.

                                                II.

         {¶21} In the second assignment of error, the State contests the trial court’s

legal conclusion, arguing it should not have excluded evidence of Parks refusal of the

breath test altogether due to Colles’ disregard for her request to call an attorney. We

agree.

         {¶22} R.C. 2935.20 affords a statutory right to counsel, providing in pertinent

part:

               After the arrest, detention, or any other taking into custody of a

               person, with or without a warrant, such person shall be permitted

               forthwith facilities to communicate with an attorney at law of his

               choice who is entitled to practice in the courts of this state, or to
Licking County, Case No. 12-CA-87                                                      9


             communicate with any other person of his choice for the purpose

             of obtaining counsel. Such communication may be made by a

             reasonable number of telephone calls or in any other reasonable

             manner. Such person shall have a right to be visited immediately

             by any attorney at law so obtained who is entitled to practice in the

             courts of this state, and to consult with him privately. No officer or

             any other agent of this state shall prevent, attempt to prevent, or

             advise     such   person   against   the   communication,   visit,   or

             consultation provided for by this section.

             * * * *.

      {¶23} The Sixth Amendment to the United States Constitution also guarantees

the right to counsel at “critical stages” of criminal proceedings, and the Ohio Supreme

Court has determined that the stage at which an officer requests a chemical test for

alcohol content is not such a critical stage. Dobbins v. Bur. of Motor Vehicles, 75 Ohio

St.3d 533, 537, 664 N.E.2d 908 (1996).

      {¶24} In State v. Griffith, the Ohio Supreme Court held imposition of the

exclusionary rule does not lie as remedy for police violation of an accused’s statutory

right to counsel in an O.V.I. case; “[i]n other words, the prosecution can present

evidence of the result of an otherwise admissible breath alcohol content analysis of

the accused; the evidence is not deemed inadmissible solely because the police failed

to comply with the statutory right to counsel.”           State v. Franz, 5th Dist. No.

04CA000013, 2005-Ohio-1755, ¶35, appeal not allowed, 106 Ohio St.3d 1508, 2005-
Licking County, Case No. 12-CA-87                                                     10


Ohio-4605, 833 N.E.2d 1250, citing State v. Griffith, 74 Ohio St.3d 554, 660 N.E.2d

710 (1996).

      {¶25} In the instant case, there is no breath test result because Parks did not

submit to a breath test. Upon direct examination, Colles testified that Parks refused

the proffered BAC Datamaster test. T. 22. Upon cross examination, Colles further

explained that he read the BMV 2255 form which advises Parks of her rights and the

penalties for refusing a chemical test, and Mirandized her. The time frame of events

was less than one hour: the traffic stop was at 3:05 a.m. and the refusal was marked

at 3:53 a.m. Colles agreed that Parks “ask[ed] to talk to an attorney before about

whether or not she should test" but he did not afford her the opportunity to do so,

despite still having time to do so, presumably, within the two-hour testing window.

      {¶26} The trial court found as follows:

              Whether or not the refusal to submit prior to consulting with an

              attorney constitutes a refusal to test at all is a factual

              determination based on the circumstances of the case. Bushey,

              [Ohio App.3d 832, 836, 649 N.E.2d 1243, 1245 (12th Dist.1994)].

              In this case, the defendant was asked to submit less than an hour

              after the time of the alleged offense. The officer had more than

              two hours to obtain the breath sample and had already complied

              with statutory requirements regarding the test.    R.C. 4511.191.

              Furthermore, he did not even permit the defendant to attempt to

              contact an attorney, flatly refusing her request when it was made.

              Under these facts and circumstances, the Court holds that her
Licking County, Case No. 12-CA-87                                                         11


              request was made in good faith and that her demurrer when asked

              to take the test was not a refusal. As such, the State may not

              introduce any evidence or testimony regarding the defendant not

              submitting to a breath test.

       {¶27} Bushey notes that a good-faith desire to contact an attorney before

submitting to a chemical test does not necessarily constitute refusal to take a test as

long as there is no attempt to delay the test beyond the statutory two-hour time frame;

furthermore, whether the refusal to submit to the test is a “refusal” within the

contemplation of R.C. 4511.191 or a good faith request to exercise one's statutory

right is a factual determination to be made by the trial court based upon the facts and

circumstances of each case. State v. Bushey, 98 Ohio App.3d 832, 836, 649 N.E.2d

1243 (12th Dist.1994). The trial court found Parks request to contact an attorney to be

in good faith and not to constitute a refusal, and we find the trial court’s findings of fact

on this point to be supported by competent, credible evidence.

       {¶28} In terms of the trial court’s application of the law to those facts, however,

we find the trial court erred in applying an exclusionary remedy. The exclusionary rule

does not apply where an officer failed to comply with the statutory right to counsel in

these circumstances.       Griffith, supra.    An exclusionary remedy would not be

appropriate had appellee taken the test; it is no less inappropriate where appellee did

not take the test. We find the parties may present the evidence surrounding the

proffer of the breath test, and Parks response, and the finder of fact may weigh the

evidence accordingly.
Licking County, Case No. 12-CA-87                                                12


                                  CONCLUSION

       {¶29} For the foregoing reasons, the decision of the Licking County Municipal

Court is affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.

By: Delaney, J.

Hoffman, P.J. and

Wise, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. WILLIAM B. HOFFMAN



                                      HON. JOHN W. WISE
