[Cite as State v. Smole, 2011-Ohio-6655.]


                                        COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   Julie A. Edwards, J.
                         Plaintiff-Appellee    :   Patricia A. Delaney, J.
                                               :
-vs-                                           :   Case No. 11-COA-014
                                               :
                                               :
JESSE M. SMOLE                                 :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Ashland, Ohio
                                                    Municipal Court Case No. 11-TRC-
                                                    00295

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             December 21, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

W. DAVID MONTAGUE                                   THOMAS L. MASON
Assistant Director of Law                           MASON, Mason & Kearns
1213 E. Main Street                                 P.O. Box 345
Ashland, Ohio 44805                                 153 West Main Street
                                                    Ashland, Ohio 44805
[Cite as State v. Smole, 2011-Ohio-6655.]


Edwards, J.

        {¶1}     Defendant-appellant, Jesse Smole, appeals his conviction and sentence

from Ashland Municipal Court on one count of operating a motor vehicle with a

prohibited breath alcohol concentration. Plaintiff-appellee is the State of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}     On January 17, 2011, appellant was arrested for speeding in violation of

R.C. 4511.21(D)(1), operating a motor vehicle while under the influence of alcohol/drug

of abuse 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). At his

arraignment on January 18, 2011, appellant entered a plea of not guilty to the charges.

        {¶3}     Thereafter, on February 22, 2011, appellant filed a Motion to Suppress,

alleging that there was no probable cause to arrest him for operating a motor vehicle

while under the influence of alcohol and/or drugs. A hearing on such motion was held

on February 28, 2011.

        {¶4}     At the hearing, Trooper John Jackson of the Ohio State Highway Patrol

testified that he was on routine patrol on January 17, 2011, at 12:04 a.m. when he

observed a vehicle traveling southbound towards him that appeared to be exceeding

the 55 mile per hour speed limit. Using radar, the Trooper determined that the vehicle’s

speed was 76 miles per hour. After he observed the driver change lanes without

signaling, the Trooper activated his lights and initiated a traffic stop.

        {¶5}     As he was talking to appellant, who was the driver of the vehicle, Trooper

Jackson “could smell an odor of an alcoholic beverage coming from inside the vehicle,

and I saw the driver’s eyes were red and bloodshot and appeared glassy.” Transcript at
Ashland County App. Case No. 11-COA-014                                                      3


8. Trooper Jackson then had appellant exit his vehicle and sit in the front seat of his

patrol car. The Trooper then was able to determine that the alcoholic odor came from

appellant’s breath. When he asked appellant if he had consumed any alcohol, appellant

told him that he had had a beer.

        {¶6}   Trooper Jackson then performed the horizontal gaze nystagmus test on

appellant while appellant was inside his patrol car. He testified that appellant exhibited

three clues in each eye, for a total of six clues.         According to the Trooper, while

appellant was performing the walk-and-turn test, “he moved his feet to keep balance

while I was explaining the test to him. He raised his arms six inches for balance and

turned incorrectly.” Transcript at 13. Appellant exhibited three out of eight clues on such

test. Trooper Jackson testified that on the final test, the one leg stand, he observed all

four clues. Appellant was then arrested.

        {¶7}   On    cross-examination,     Trooper     Jackson   testified   that   prior   to

administering the tests, he had no evidence that appellant’s motor coordination was

deficient. The following is an excerpt from his testimony on cross-examination:

        {¶8}   “Q. Okay.     To your knowledge, are there any Department of Health

Regulations concerning the administration of that [the horizontal gaze nystagmus test]

test?

        {¶9}   “A. I’m sure there is.

        {¶10} “Q. But you are not sure?

        {¶11} “A. I’m not - - I’m still not sure what you’re.
Ashland County App. Case No. 11-COA-014                                               4


       {¶12} “Q. You said you were sure, then I said that you’re not sure. Well, let me

ask you this, if there are Department of Health Regulations concerning the

administration of that test, you’re not familiar with them.

       {¶13} “A. I’m familiar with forms for the test and what you have to do to

administer the test.

       {¶14} “Q. Right. But you can’t tell us where those rules are coming from?

       {¶15} “A. No.

       {¶16} “Q. Are you familiar with the National Highway Traffic Safety

Administration Manual?

       {¶17} “A. Yes.

       {¶18} “Q. Do you know if that particular source sets forth how to the (sic)

perform an HGN test?

       {¶19} “A. Yes, it does.

       {¶20} “Q. Okay. Do you know what it requires?

       {¶21} “A. To perform the test?

       {¶22} “Q. Right. And I just call it NHTSA. In the NHTSA Manual.

       {¶23} “A. Right. You just need a stimulus. Something to move in front of the

subject’s face.

       {¶24} “Q. Well there’s more than that, isn’t’ there?

       {¶25} “A. I don’t believe so.” Transcript at 17-18.

       {¶26} Trooper Jackson testified that, on the walk-and-turn test, appellant walked

heel to toe for nine steps without a mistake and also did that coming back, that

appellant never stepped off of the line and that appellant never swayed. Testimony was
Ashland County App. Case No. 11-COA-014                                                 5


adduced that, on the one leg stand, appellant put his foot down on the count of 14 and

then stood on one leg from the count of 15 to the count of 30 without any trouble. The

Trooper admitted that when appellant was doing normal activities, he did not observe

any impaired motor coordination.

       {¶27} On redirect, Trooper Jackson testified that the odor of alcohol was

“strong.” Transcript at 22.

       {¶28} Pursuant to a Judgment Entry filed on March 7, 2011, the court overruled

appellant’s Motion to Suppress. Subsequently, on March 21, 2011, appellant withdrew

his former not guilty pleas and entered a plea of no contest to the charge of operating a

motor vehicle with a prohibited breath alcohol concentration. The remaining charges

were dismissed. As memorialized in a Judgment Entry filed on April 25, 2011, appellant

was sentenced to ninety (90) days in jail with eighty (80) of the days suspended, was

placed on probation for a period of one year, and his operator’s license was suspended

for a period of one year. Appellant also was fined $750.00.

       {¶29} Appellant now raises the following assignment of error on appeal:

       {¶30} “THE TRIAL COURT ERRED BY OVERRULING THE APPELLANT’S

MOTION TO SUPPRESS WHERE THERE WAS NOT PROBABLE CAUSE TO

ARREST HIM FOR OVI.”

                                                 I

       {¶31} Appellant, in his sole assignment of error, argues that the trial court erred

in denying his Motion to Suppress because there was no probable cause to arrest

appellant for driving while under the influence of alcohol.
Ashland County App. Case No. 11-COA-014                                                   6


       {¶32} 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 (1982),

1 Ohio St.3d 19, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486, 597

N.E.2d 1141; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. 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. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d

1141. 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 (1994), 95

Ohio App.3d 93, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 620

N.E.2d 906; Guysinger. As the United States Supreme Court held in Ornelas v. U.S.

(1996), 116 S.Ct. 1657, 1663, “... as a general matter determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal.”

       {¶33} As is stated above, appellant argues that the trial court erred in overruling

appellant’s Motion to Suppress where there was no probable cause to arrest appellant

for driving under the influence of alcohol. Appellant specifically contends that the field

sobriety tests cannot be considered because of “lack of evidence of compliance with
Ashland County App. Case No. 11-COA-014                                                  7


any standardized testing procedures” and that, without evidence of appellant’s

performance on the same, there was insufficient evidence establishing probable cause

to arrest him.

       {¶34} An officer has probable cause to arrest a suspect for driving under the

influence 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.” State v.

Homan (2000), 89 Ohio St.3d 421, 427, 732 N.E.2d 952, (superseded by statute on

other grounds) citing Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225; State v.

Timson (1974), 38 Ohio St.2d 122, 127, 311 N.E.2d 16, 20. In making the determination

as to whether probable cause existed, a reviewing court will examine the “totality” of

facts and circumstances surrounding the arrest. Homan, supra, citing State v. Miller

(1997), 117 Ohio App.3d 750, 761, 691 N.E.2d 703, 710; State v. Brandenburg (1987),

41 Ohio App.3d 109, 111, 534 N.E.2d 906, 908.

       {¶35} In State v. Koteff, Ashland App. No. 04-COA-1719, 2005-Ohio-1719, ¶ 16-

17, this Court noted the following:

       {¶36} “Probable cause to arrest a suspect for driving while under the influence of

alcohol may exist without consideration of field sobriety tests. In State v. Homan, 89

Ohio St.3d 421, 427, 2000-Ohio-212, 732 N.E.2d 952, the Ohio Supreme Court

excluded the results of field sobriety tests administered to a suspect. The Homan Court

went on to find that, even without the results of the field sobriety tests, probable cause

existed to support the arrest of the suspect when the totality of the circumstances was

considered. In Homan, the facts which supported a finding of probable cause were: red
Ashland County App. Case No. 11-COA-014                                                  8


and glassy eyes, breath which smelled of alcohol, erratic driving and an admission that

the suspect had consumed alcohol.

       {¶37} “In State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446,

the Ohio Supreme Court held that, even though the standardized procedures were not

strictly followed, ‘[a] law enforcement officer may testify at trial regarding observations

made during a defendant's performance of nonscientific standardized field sobriety

tests.’ Id., at syllabus.”

       {¶38} In State v. Homan, 89 Ohio St.3d 421, 2000-Ohio-212, 732 N.E.2d 952,

the Supreme Court of Ohio held that in order for the field sobriety tests to serve as

evidence of probable cause to arrest, such tests must be performed in strict compliance

with the procedures promulgated by the NHTSA.

       {¶39} However, R.C. § 4511.19(D)(4)(b), effective April 9, 2003, provides in

pertinent part:

       {¶40} “(b) 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
Ashland County App. Case No. 11-COA-014                                                     9


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:

       {¶41} “(i) The officer may testify concerning the results of the field sobriety test

so administered.

       {¶42} “(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.

       {¶43} “(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.”

       {¶44} The Supreme Court of Ohio recognized that under this amended version

of R.C. § 4511.19(D)(4)(b), “the arresting officer no longer needs to have administered

field sobriety tests in strict compliance with testing standards for the test results to be

admissible at trial.” State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446,

at ¶ 9. Rather, an officer may now testify concerning the results of a field sobriety test

administered in substantial compliance with the testing standards. Id. Additionally, “HGN

test results are admissible in Ohio without expert testimony so long as the proper

foundation has been shown both as to the administering officer's training and ability to

administer the test and as to the actual technique used by the officer in administering

the test.” State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, at ¶

27.
Ashland County App. Case No. 11-COA-014                                                  10


       {¶45} In the case sub judice, the NHTSA manual was not admitted into

evidence. In State v. Ryan, Licking App. No. 02-CA-00095, 2003-Ohio-2803, ¶ 18-21,

this Court stated the following: “While we do not decide that the introduction of the

NHTSA manual is a necessary predicate to this issue, we must agree with the court in

State v. Nickelson (July 20, 2001), Huron App. No. H-00-036 when it concluded:

       {¶46} “‘While appellee introduced testimony of officers as to which tests were

conducted and how they were conducted, it did not introduce any evidence to prove that

the tests were conducted in a standardized manner as provided by the National

Highway Traffic Safety Administration. No witness testified as to these guidelines, and

the manual itself was not admitted. Because appellee did not prove that the field

sobriety tests were conducted in accordance with the manual, the results of the field

sobriety tests should have been suppressed. See State v. Homan (2000), 89 Ohio St.3d

421, 732 N.E.2d 952.’

       {¶47} “In the case sub judice, while Trooper Weaver testified as to his

certification to administer the tests (T. at p. 7, 732 N.E.2d 952), he did not testify as to

the standardized requirements of the NHTSA guidelines but merely how appellant

performed the walk and turn and one-leg stand. Also, as in Nickelson, supra, the

manual was not introduced.

       {¶48} “We find that the State therefore failed in its burden as to the evidence

required to oppose the motion to suppress and that the burden had not shifted to

appellant to establish the standardized manner of conducting such tests as required by

the NHTSA by impeaching the Trooper. By placing this burden on appellant, he was
Ashland County App. Case No. 11-COA-014                                                  11


required by impeachment or introduction of the NHTSA manual to carry the burden

required of the State.”

       {¶49} In the case sub judice, Trooper Jackson testified that he was trained to

administer the field sobriety tests. He did not testify as to the standardized requirements

of the NHTSA guidelines. We find, therefore, that the State failed to meet its burden as

to the presumption of admissibility of the field sobriety tests under R.C. 4511.19(D)(4).

       {¶50} Moreover, we find that there was probable cause to arrest appellant for

driving under the influence without consideration of the results of field sobriety tests. As

is stated above, appellant was driving 75 miles in a 55 mile per hour zone and changed

lanes without signaling. After stopping appellant, Trooper Jackson smelled a “strong”

odor of alcohol on appellant’s breath and noticed that appellant’s eyes were red,

bloodshot and appeared glassy.         Appellant, when asked if he had consumed any

alcohol, told the Trooper that he had had a beer. We find these factors support a finding

of probable cause. See, for example, State v. Verity, Stark App. No. 2009CA00156,

2010-Ohio-1151. In such case, this Court held, in relevant part, as follows: “Officer

Rowland testified upon removing appellant from the vehicle, he smelled a strong odor of

alcohol coming from appellant's breath and his eyes were glassy. T. at 12, 14. These

observations triggered the administration of the field sobriety tests. Officer Rowland

testified he performed these tests in substantial compliance and appellant demonstrated

clues indicating intoxication. T. at 8-9.

       {¶51} “We find despite the lack of admissibility of the field sobriety tests as

addressed in Assignment of Error I, Officer Rowland articulated factors that he believed

led to probable cause to arrest. We find his observations were sufficient to substantiate
Ashland County App. Case No. 11-COA-014                                                  12


probable cause and indicated more than a hunch or a guess by the officer.” Id at

paragraphs 35-36. On such basis, this Court found, in Verity, that the trial court did not

err in finding that the officer had probable cause to arrest the appellant for driving under

the influence.

       {¶52} Appellant’s sole assignment of error is, therefore, overruled.

       {¶53} Accordingly, the judgment of the Ashland Municipal Court is affirmed.




By: Edwards, J.

Gwin, P.J. and

Delaney, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                 JUDGES
[Cite as State v. Smole, 2011-Ohio-6655.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JESSE M. SMOLE                                    :
                                                  :
                        Defendant-Appellant       :       CASE NO. 11-COA-014




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Ashland, Ohio Municipal Court is affirmed.              Costs assessed to

appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
