[Cite as State v. Malson, 2019-Ohio-4447.]


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

STATE OF OHIO                                          C.A. No.     29310

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
RICHARD MALSON                                         AKRON MUNICIPAL COURT
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   17TRC12405

                                 DECISION AND JOURNAL ENTRY

Dated: October 30, 2019



        CALLAHAN, Judge.

        {¶1}     Appellant, Richard Malson, appeals a decision that denied his motion to suppress.

This Court reverses.

                                                  I.

        {¶2}     On July 6, 2017, Mr. Malson rear-ended another vehicle on the Ghent Road exit

ramp from Interstate 77 in Summit County. The Bath Township Police Department responded to

the scene, then called the Ohio State Highway Patrol because the accident occurred on a highway

exit ramp. Trooper Ciera Castillo responded. After noting that Mr. Malson exhibited some

physical indications of alcohol consumption, Trooper Castillo performed field sobriety testing.

At the conclusion of the field sobriety tests, Trooper Castillo placed Mr. Malson under arrest,

and he was transported to the Bath Township Police Department, where he agreed to take a

breathalyzer test. The results of the breathalyzer test indicated that he had a concentration of

.145 grams of alcohol per 210 liters of breath.
                                                 2


       {¶3}    Mr. Malson was charged with driving under the influence of alcohol in violation

of R.C. 4511.19(A)(1)(a) and driving with a prohibited concentration of alcohol in his breath in

violation of R.C. 4511.19(A)(1)(d). He moved to suppress the results of the field sobriety tests

and the breathalyzer test, arguing in part that the field sobriety tests were not conducted in

substantial compliance with National Highway Transportation and Safety Administration

(“NHTSA”) guidelines. He also argued that the results of the breathalyzer test should be

suppressed because, without the results of the field sobriety tests, Trooper Castillo did not have

probable cause to arrest him. In the alternative, Mr. Castillo identified numerous provisions of

the Ohio Administrative Code that regulated breathalyzer testing and urged the trial court to

suppress those results as well.

       {¶4}    The trial court denied the motion to suppress, noting on the record that “under the

totality of the circumstances there was probable cause to make the arrest.” With respect to Mr.

Malson’s argument that the results of the breathalyzer test should be suppressed, the trial court

concluded that the motion to suppress did not contain sufficient facts to shift the burden to the

State to prove compliance. The case proceeded to trial, and a jury found Mr. Malson guilty of

both charges. The trial court merged the convictions for purposes of sentencing and sentenced

Mr. Malson to 180 days in jail with all but three days suspended. The trial court also suspended

his driver’s license for twelve months and fined him $500.

       {¶5}    Mr. Malson appealed.       He did not assign any errors in connection with the

conduct of the trial or with his convictions. Instead, his three assignments of error relate solely

to the trial court’s decision denying his motion to suppress.
                                                3


                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       DID THE TRIAL COURT ERROR [SIC] IN FINDING THAT THE FIELD
       SOBRIETY TESTS WERE CONDUCTED IN SUBSTANTIAL COMPLIANCE
       WITH THE NHTSA MANUAL WHEN THE STATE FAILED TO
       INTRODUCE THE APPLICABLE PORTIONS OF THE NHTSA MANUAL
       STANDARDS INTO EVIDENCE[?]

                              ASSIGNMENT OF ERROR NO. 2

       DID THE TRIAL COURT ERROR [SIC] IN FINDING THAT THE FIELD
       SOBRIETY TESTS WERE CONDUCTED IN SUBSTANTIAL COMPLIANCE
       WITH THE NHTSA MANUAL[?]

       {¶6}    Mr. Malson’s first two assignments of error allege that the trial court erred by

determining that Trooper Castillo conducted the field sobriety tests in substantial compliance

with the NHTSA guidelines.

       {¶7}    This Court’s review of the trial court’s ruling on the motion to suppress presents a

mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

The trial court acts as the trier of fact during a suppression hearing and is best equipped to

evaluate the credibility of witnesses and resolve questions of fact. Id.; State v. Hopfer, 112 Ohio

App.3d 521, 548 (2d Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653 (4th

Dist.1994). Consequently, this Court accepts a trial court’s findings of fact if supported by

competent, credible evidence. Burnside at ¶ 8. Once this Court has determined that the trial

court’s factual findings are supported by the evidence, we consider the trial court’s legal

conclusions de novo. See id. In other words, this Court accepts the trial court’s findings of fact

as true and “must then independently determine, without deference to the conclusion of the trial

court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124

Ohio App.3d 706, 710 (4th Dist.1997).
                                                 4


       {¶8}    In this case, however, the trial court did not make either findings of fact or

conclusions of law regarding whether Trooper Castillo conducted the field sobriety tests in

substantial compliance with the NHTSA regulations. The trial court did not issue a written

decision denying the motion to suppress, and the trial court’s ruling on the record did not address

the issue. Instead, after concluding that there was reasonable basis for the traffic stop that

preceded the field sobriety tests, the trial court moved on directly to consider the broader issue of

whether there was probable cause for the arrest given the totality of the circumstances:

       Secondly, I think we need to move on to whether or not there was probable cause
       for the arrest. Trooper Castillo testified at length about the observations she made
       about [Mr. Malson]. [Defense counsel], I agree with you that the Horizontal Gaze
       Nystagmus was not done in strict compliance with the NHTSA manual nor was
       the Walk and Turn. However, for purposes of this hearing, which is a Motion to
       Suppress, it’s not putting the State on the burden of beyond a reasonable doubt.
       I’m to look at substantial compliance with the NHTSA manual and I’m required,
       at this time, to look at the totality of the circumstances surrounding whether or not
       at the time for Mr. Malson’s detainment there existed probable cause to arrest him
       for the offense of OVI. The Court does find that under the totality of the
       circumstances there was probable cause to make the arrest.

This Court is unable to review the substance of Mr. Malson’s first and second assignments of

error at this time because it is unclear whether the “totality of the circumstances” to which the

trial court referred included a consideration of the results of the field sobriety tests. This Court

sustains his first and second assignments of error, therefore, based solely on the trial court’s

failure to make findings of fact and conclusions of law regarding substantial compliance with the

NHTSA guidelines.       See generally State v. Mackim, 9th Dist. Summit No. 28741, 2018-

Ohio3033, ¶ 18.

                               ASSIGNMENT OF ERROR NO. 3

       DID THE TRIAL COURT ERROR [SIC] IN FAILING TO SUPPRESS THE
       RESULTS OF THE BREATHALYZER TEST WHEN THE STATE FAILED
       TO MEET [ITS] EVIDENTIARY BURDEN TO ESTABLISH THAT THE
       TEST WAS ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH THE
                                                    5


       APPLICABLE   REVISED                  CODE       AND    ADMINISTRATE            CODE
       REGULATIONS[?]

       {¶9}    Mr. Malson’s third assignment of error, which challenges the trial court’s decision

with respect to the results of the breathalyzer test administered after his arrest, is premature. This

Court declines to address it at this time.

                                                 III.

       {¶10} Mr. Malson’s first and second assignments of error are sustained as explained

herein. His third assignment of error is premature. This matter is remanded to the trial court for

the sole purpose of permitting the trial court to make findings of fact and conclusions of law

regarding substantial compliance with the NHTSA guidelines.

                                                                                  Judgment reversed
                                                                                and cause remanded.




       There were reasonable grounds for this appeal.

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

Court, County of Summit, 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.
                                       6


      Costs taxed to Appellee.




                                           LYNNE S. CALLAHAN
                                           FOR THE COURT



TEODOSIO, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

PATRICK D. QUINN and RONALD A. ANNOTICO, Attorneys at Law, for Appellant.

EVE V. BELFANCE, Director of Law, and BRIAN D. BREMER and GRACE K. BARNARD,
Assistant Directors of Law, for Appellee.
