[Cite as Columbus v. Horton, 2014-Ohio-4584.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


City of Columbus,                                :

                Plaintiff-Appellee,              :
                                                                       No. 13AP-966
v.                                               :                (M.C. No. 2013 TRC 105492)

Miles A. Horton,                                 :                (REGULAR CALENDAR)

                Defendant-Appellant.             :




                                          D E C I S I O N

                                   Rendered on October 16, 2014


                Richard C. Pfeiffer, Jr., City Attorney; Lara N. Baker, City
                Prosecutor, and Melanie R. Tobias, for appellee.

                D. Timothy Huey; Kura, Wilford & Schregardus Co., L.P.A.,
                and Sarah M. Schregardus, for appellant.

                      APPEAL from the Franklin County Municipal Court

KLATT, J.
        {¶ 1} Defendant-appellant, Miles A. Horton, appeals from a judgment of
conviction and sentence entered by the Franklin County Municipal Court.               For the
following reasons, we affirm that judgment.
I. Factual and Procedural Background
        {¶ 2} In the early morning hours of January 21, 2013, Sergeant Tim Myers of the
Columbus Police Department was driving his police car north on High Street in the Short
North area of Columbus, Ohio. Sergeant Myers encountered a car that was stopped in his
lane. Sergeant Myers was required to stop. He observed people getting into the car and
then the car proceeded northbound on High Street. Because the car impeded Sergeant
No. 13AP-966                                                                              2

Myers' ability to drive in the lane, he decided to pull the car over for violating Columbus
City Code 2133.04(A) (impeding traffic).1
          {¶ 3} The car, driven by appellant, pulled into a parking lot. Sergeant Myers
approached the car and made contact with appellant.             Sergeant Myers noticed that
appellant's eyes were glassy and bloodshot.            He also smelled an odor of alcoholic
beverages inside the car.             Sergeant Myers suspected that appellant may have been
impaired, so he asked him to recite the alphabet, starting at the letter D and ending at the
letter X. Appellant attempted to do so but started with the letter E and said the letter U
twice. At that point, Sergeant Myers asked appellant to exit the car to determine whether
the alcohol smell was from appellant or from other people in the car. Once outside the
car, Sergeant Myers could still smell a moderate odor of alcohol coming from appellant.
Sergeant Myers asked appellant how many drinks he had that night. Appellant told him
that he had two drinks two hours earlier and that he had also taken some anti-anxiety
medicine. Sergeant Myers suspected that appellant was driving impaired.
          {¶ 4} At some point during the encounter, Columbus Police Officers William Scott
and Jill Woolley arrived on the scene to assist Sergeant Myers. Sergeant Myers informed
the officers of his observations of appellant before turning appellant over to them.
Officers Scott and Woolley performed field sobriety tests ("FST") on appellant. Both
officers also thought that appellant's eyes were glassy and bloodshot and that he smelled
of alcohol.
          {¶ 5} Officer Scott first asked appellant if he would take a portable breath test
("PBT"). He declined but agreed to perform other FSTs. Officer Scott first performed the
horizontal gaze nystagmus test ("HGN"). During the test, Officer Scott observed six out of
six clues indicating to him that appellant was impaired. Officer Woolley then performed
two other FSTs: the walk-and-turn and the one-leg stand. Although appellant passed
both of these tests, exhibiting only one clue on each test, Officer Woolley observed him
swaying during the one-leg stand. Following these tests, appellant was arrested for OVI
and taken to police headquarters. Officer Scott then performed an alcohol breath test on
appellant. Appellant's test result was .108, which is over the legal limit.



1   That charge is not at issue in this appeal.
No. 13AP-966                                                                                          3

          {¶ 6} As a result of these events, appellant was charged with two counts of
operating a vehicle while under the influence in violation of Columbus City Code
2133.01(A)(1)(a) ("OVI impaired") and 2133.01(A)(1)(d) ("OVI per se").2                     Appellant
entered a not guilty plea to the charges and proceeded to a jury trial.
          {¶ 7} Before trial, appellant filed a motion to suppress the results of the FSTs he
performed during the traffic stop as well as the results of the alcohol breath test he took
while at police headquarters. At the motion hearing, appellant argued that the results of
the alcohol breath test had to be suppressed because Officer Scott did not properly renew
his operator's permit to conduct the test and that the police did not have probable cause to
arrest him. The trial court overruled appellant's motion.
          {¶ 8} At trial, the officers testified to the above version of events. The video of the
traffic stop, which included the walk-and-turn and the one-leg stand FSTs but not the s
HGN test, was also played to the jury. The jury ultimately acquitted appellant of the OVI
impaired charge but found him guilty of the OVI per se charge. The trial court sentenced
him accordingly.
II. The Appeal
          {¶ 9} Appellant appeals his conviction and sentence and assigns the following
errors:
                 [1.] The trial court violated Appellant's right of confrontation,
                 right to present a complete defense and right to have the jury
                 determine his guilt beyond a reasonable doubt based upon all
                 relevant evidence by prohibiting cross-examination of the
                 State's witness regarding how the breath machine works and
                 regarding the specific breath testing device used to test his
                 breath and regarding matters that could have caused his
                 specific test result to be less than one hundred percent
                 accurate.

                 [2.] The trial court erred when it found the Officers had
                 probable cause to arrest Miles Horton for OVI.




2 OVI charges are commonly referred to as either impaired or per se. See State v. Brand, 157 Ohio
App.3d 451, ¶ 11-12 (1st Dist.2004), citing Newark v. Lucas, 40 Ohio St.3d 100 (1988). The impaired
charge generally prohibits impaired driving, while a per se charge prohibits operation of a vehicle with
certain concentrations of alcohol and drugs in a person's system. State v. Mayl, 106 Ohio St.3d 207,
2005-Ohio-4629, ¶ 18.
No. 13AP-966                                                                                4

              [3.] The trial court erred when it found Officer Scott
              possessed a valid senior operator's permit as required to
              administer the test to Appellant.

       {¶ 10} For ease of analysis, we first address the second and third assignments of
error together because they both address the trial court's denial of appellant's motion to
suppress.
       A. Appellant's Second and Third Assignments of Error–The
       Motion to Suppress

       {¶ 11} " 'Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses. Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence. Accepting these
facts as true, the appellate court must then independently determine, without deference to
the conclusion of the trial court, whether the facts satisfy the applicable legal standard.' "
(Citations omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, quoting
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
              1. Did the Police have Probable Cause to Arrest Appellant
              for OVI?

       {¶ 12} Appellant first argues that the trial court erred by concluding that the
officers had probable cause to arrest him for OVI. We disagree.
       {¶ 13} The standard for determining whether there was probable cause to arrest
for OVI is whether, 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.
Miller, 10th Dist. No. 13AP-1022, 2014-Ohio-3605, ¶ 24, citing State v. Homan, 89 Ohio
St.3d 421, 427 (2000). That determination is based on the totality of the facts and
circumstances surrounding the arrest. Id. Whether or not there was probable cause is a
legal issue that we review de novo. State v. Bish, 191 Ohio App.3d 661, 2010-Ohio-6604,
¶ 47 (7th Dist.)
       {¶ 14} Appellant first argues that the officers lacked probable cause to arrest him
because he passed two of the three FSTs and the one he failed was the only one not
No. 13AP-966                                                                               5

captured on video that morning. He also argues that his minor traffic offense–impeding
traffic–was not indicative of impaired driving. These arguments are unavailing, as they
fail to consider the totality of the circumstances. Even though appellant passed two of the
three FSTs and committed a minor traffic offense, the totality of the circumstances
provided the officers with probable cause to arrest appellant.
       {¶ 15} Specifically, each of the officers testified that appellant's eyes appeared
glassy and bloodshot, that he slurred his speech, and that they smelled an alcohol odor
coming from appellant. Appellant also admitted to the officers that he had two drinks
before he was stopped. Lastly, Officer Scott testified that appellant failed the HGN test
and both Officers Scott and Woolley testified that appellant was swaying as he performed
the one-leg stand. Given the totality of these circumstances, the police had probable cause
to arrest appellant for OVI. State v. Morgan, 10th Dist. No. 05AP-552, 2006-Ohio-5297,
¶ 41 (finding probable cause under essentially identical facts).
       {¶ 16} Appellant also argues that the trial court erred by considering his refusal to
take the PBT in the probable cause determination. First, it is not clear from the trial
court's written decision that it considered appellant's refusal to take the PBT in its
probable cause analysis. Second, while there is a split of authority in this state concerning
the admissibility of PBT results in a probable cause determination, see State v. Henry, 191
Ohio App.3d 151, 2010-Ohio-5171, ¶ 33 (6th Dist.); Columbus v. Dials, 10th Dist. No.
04AP-1099, 2006-Ohio-227, ¶ 17, we have found no court that has addressed whether a
refusal to take a PBT can be considered in a trial court's probable cause determination.
However, even assuming it would be error, the totality of the circumstances addressed
above provided probable cause to arrest even without considering appellant's refusal to
take the PBT. Therefore, any such error would be harmless. Morgan at ¶ 41 (finding
probable cause without consideration of PBT results); Henry at ¶ 36; Columbus v.
Shepherd, 10th Dist. No. 10AP-483, 2011-Ohio-3302, ¶ 35.
               2. Did Officer Scott Have a Valid Permit to Conduct
               Appellant's Breath Alcohol Test?

       {¶ 17} Appellant also argues that the trial court erred by concluding that the officer
who conducted his breath alcohol test had a valid operator's permit to conduct the test.
We disagree.
No. 13AP-966                                                                              6

       {¶ 18} When a defendant challenges the results of a breath alcohol test by way of a
motion to suppress, the state has the burden to show that the test was administered in
substantial compliance with the Ohio Department of Health ("ODH") regulations. State v.
Burnside at ¶ 24; State v. Plummer, 22 Ohio St.3d 292, 294 (1986). This substantial
compliance standard excuses errors that are clearly de minimis, errors which the Supreme
Court of Ohio has characterized as " 'minor procedural deviations.' " Burnside at ¶ 34,
quoting Homan at 426.
       {¶ 19} The nature of the city's burden to establish substantial compliance is
determined by the degree of specificity with which the defendant challenges the legality of
the test. Columbus v. Morrison, 10th Dist. No. 08AP-311, 2008-Ohio-5257, ¶ 9, citing
State v. Johnson, 137 Ohio App.3d 847, 851 (12th Dist.2000). For example, when a
defendant's motion to suppress raises only general claims, the burden imposed on the city
is general and slight. Id., citing State v. Embry, 12th Dist. No. CA2003-11-110, 2004-
Ohio-6324, ¶ 29; State v. Mai, 2d Dist. No. 2005-CA-115, 2006-Ohio-1430, ¶ 19. The city
is only required to present general testimony that there was substantial compliance with
the requirements of the regulations; specific evidence is not required unless the defendant
raises a specific issue in the motion to suppress. Morrison; State v. Bissaillon, 2d Dist.
No. 06-CA-130, 2007-Ohio-2349, ¶ 12; State v. Crotty, 12th Dist. No. CA2004-05-051,
2005-Ohio-2923, ¶ 19.
       {¶ 20} In the present case, appellant generally claimed in his motion to suppress
that the operator who conducted his breath test "was not licensed to operate the
instrument analyzing the Defendant's alcohol level * * * [and] did not have a valid permit
that was issued by the director pursuant to [R.C.] 3701.143 [and] OAC 3701-53-09." He
did not raise any specific factual issues of noncompliance in the motion. Thus, the city's
burden to establish substantial compliance with the regulations was slight, and only
required the city to generally prove substantial compliance.
       {¶ 21} Officer Scott testified that he first received an operator's permit to conduct
alcohol breath tests on a BAC Datamaster instrument in either 2009 or 2010. He further
testified that he renewed his operator's permit effective March 31, 2012, approximately
ten months prior to the test he performed on appellant on January 21, 2013. At that time,
No. 13AP-966                                                                                             7

an individual who held an operator's permit could renew that permit if they satisfied
former Ohio Adm.Code 3701-53-09(F),3 which provided, in relevant part:
                To qualify for renewal of a permit under paragraph (A) or (B)
                of this rule:

                (1) A permit holder shall present evidence satisfactory to the
                director that he or she continues to meet the qualifications
                established by the applicable provisions of rule 3701-53-07 of
                the Administrative Code for issuance of the type of permit
                sought.

                ***

                (3) If the individual seeking a renewal permit currently holds
                an operator or senior operator permit, the permit holder shall
                have completed satisfactorily an in-service course for the
                applicable type of evidential breath testing instrument which
                meets the requirements of paragraph (B) of this rule, which
                includes review of self-study materials furnished by the
                director.

        {¶ 22} Appellant alleges that there was no proof that Officer Scott completed an in-
service course for the 2012 renewal of his permit. In light of the general and slight burden
imposed on the city, however, it was not required to present such specific testimony.
Instead, the city met its burden to show substantial compliance by admitting into
evidence Officer Scott's valid permit and his testimony that he renewed his permit. State
v. Cromer, 10th Dist. No. 12AP-943, 2013-Ohio-4054, ¶ 24; State v. Drake, 5th Dist. No.
13CA15, 2014-Ohio-509, ¶ 14-15.
                3. Conclusion
        {¶ 23} For these reasons, the trial court did not err by denying appellant's motion
to suppress. Accordingly, we overrule his second and third assignments of error.
        B. Appellant's First Assignment of Error–Cross-Examination
        {¶ 24} In this assignment of error, appellant argues that the trial court
impermissibly limited his right to cross-examine Officer Scott regarding the reliability of
the chemical breath test he administered. Specifically, the trial court prohibited questions
relating to: (1) whether appellant had the flu on the night of his arrest and whether the flu

3 The current version of that administrative code, effective after Officer Scott's 2012 renewal, eliminated
the in-service course as a requirement for renewal.
No. 13AP-966                                                                                   8

would have caused a fever; and (2) whether appellant's cell phone was in the room during
the breath test. Appellant contends that both of these facts could have impacted his
particular test results.
               1. Attacks on Breath Test Results
        {¶ 25} Ohio has legislatively resolved the question of the general reliability of tests
for blood alcohol content. State v. Vega, 12 Ohio St.3d 185, 188 (1984), citing R.C.
4511.19; State v. Luke, 10th Dist. No. 05AP-371, 2006-Ohio-2306, ¶ 22. Given that
legislative determination, the Supreme Court of Ohio in Vega concluded that "an accused
may not make a general attack upon the reliability and validity of the breath testing
instrument" but "may * * * attack the reliability of the specific testing procedure and the
qualifications of the operator." Id. at 189-90; Luke at ¶ 25-26.
               2. Officer Scott's Proferred Testimony
        {¶ 26} Appellant's counsel questioned Officer Scott during cross-examination
about the effect that a sample's temperature would have on a test result. The officer
stated that if a person's temperature is higher than a certain level, it will raise the result of
the sample.     (Tr. 393.)    The officer did not know the precise impact an elevated
temperature would have on the test result. Officer Scott also testified the machine would
provide an error message if the body temperature was too high. (Tr. 393.) At this point in
his testimony, the state objected, arguing that the questions were general attacks on the
reliability of the testing machine that are prohibited under Vega. Appellant's counsel
ceased the line of questioning but asked the trial court for permission to make a proffer of
the questions he sought to ask. The trial court granted his request.
        {¶ 27} During the proffer, appellant's counsel again asked Officer Scott about the
effect a person's temperature would have on a sample result. Again, Officer Scott replied
that the machine would give an error message if the sample temperature exceeded the
acceptable range of value. (Tr. 434.) Officer Scott acknowledged that appellant reported
to the police that night that he had the flu and that someone with a flu could have an
elevated temperature. However, Officer Scott testified that he did not know how an
elevated temperature would affect appellant's individual breath test that evening. (Tr.
439.)
No. 13AP-966                                                                              9

       {¶ 28} Appellant's counsel also asked Officer Scott to identify the location of
appellant's cell phone during the breath test that morning. Based upon Officer Scott's
testimony, it is unclear whether appellant's cell phone was in the room when Officer Scott
administered the breath test. (Tr. 443-44.) The trial court ultimately refused to allow
appellant's proffered questions.
             3. The Trial Court did not Abuse its Discretion by Limiting
             Cross-Examination of Officer Scott

       {¶ 29} A trial court has the discretion to limit the scope of cross-examination
taking into account the particular facts of a case. State v. Treesh, 90 Ohio St.3d 460, 480-
81 (2001); State v. Hodge, 10th Dist. No. 04AP-294, 2004-Ohio-6980, ¶ 10. Therefore,
an appellate court will not disturb a trial court's limits on the scope of cross-examination
unless the trial court has abused its discretion. State v. Casner, 10th Dist. No. 10AP-489,
2011-Ohio-1190, ¶ 11; Hodge at ¶ 10. Although an abuse of discretion is typically defined
as an unreasonable, arbitrary, or unconscionable decision, State v. Beavers, 10th Dist. No.
11AP-1064, 2012-Ohio-3654, ¶ 8, we note that no court has the authority, within its
discretion, to commit an error of law. State v. Beechler, 2d Dist. No. 09-CA-54, 2010-
Ohio-1900, ¶ 70.
       {¶ 30} Appellant contends that the trial court erred by prohibiting his questions
because they concerned the specific testing procedure Officer Scott used for his breath
test. Regardless of whether appellant's proffered questions address the general reliability
of the machine used that morning or the specific testing procedure utilized, the trial court
did not abuse its discretion by refusing to allow the questions because appellant did not
lay the proper foundation for such questions. State v. Sabo, 10th Dist. No. 04AP-1114,
2006-Ohio-1521, ¶ 22 (noting that even if challenge was to specific testing procedures,
trial court properly excluded testimony based on lack of evidentiary support).
       {¶ 31} Specifically, Officer Scott testified during the proffer that he did not know
how much an elevated temperature would affect appellant's test results. Casner at ¶ 14-15
(no abuse of discretion in limiting cross-examination where witness lacked knowledge to
testify about issue).   Nor was there any evidence that appellant had an elevated
temperature when he took the alcohol breath test.          Given the lack of a sufficient
No. 13AP-966                                                                                            10

evidentiary basis to challenge appellant's individual breath test, the trial court did not
abuse its discretion when it prohibited appellant's proffered questions.
          {¶ 32} To the extent that appellant sought to question the officer about the location
of appellant's cell phone (which could arguably cause radio frequency interference that
can interfere with the accuracy of breath testing equipment),4 his argument is premised
on the allegation that the cell phone was in the room when the test was conducted. A
review of Officer Scott's testimony, however, reveals that the location of the cell phone
during the test is unclear. We note, however, that Officer Scott testified he is "very clear to
make sure there are no radio signals there." (Tr. 444.) It is appellant's burden to come
forward with evidence indicating that prohibited radio interference occurred at the
relevant time.        Greenville v. Holzapfel, 85 Ohio App.3d 383, 389 (2d Dist.1993).
Appellant did not present any specific evidence that the cell phone was in the room where
the test was conducted.
          {¶ 33} For these reasons, the trial court did not abuse its discretion by limiting
appellant's cross-examination of Officer Scott because appellant failed to lay the proper
foundation for the questions he claims were erroneously prohibited. Accordingly, we
overrule appellant's first assignment of error.5
III. Conclusion
          {¶ 34} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Municipal Court.
                                                                                  Judgment affirmed.

                           CONNOR and LUPER SCHUSTER, JJ., concur.




4   Greenville v. Holzapfel, 85 Ohio App.3d 383, 386 (2d Dist.1993).
5
  In light of our disposition of appellant's first assignment of error, we deny his motion for supplemental
briefing and argument in light of the Supreme Court of Ohio's decision in Cincinnati v. Ilg, __Ohio
St.3d__ , 2014-Ohio-4258.
