[Cite as Middleburg Hts. v. Gettings, 2013-Ohio-3536.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99556



                    CITY OF MIDDLEBURG HEIGHTS
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                            EUGENE J. GETTINGS, III
                                                           DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART
                            AND REMANDED


                                        Criminal Appeal from the
                                         Berea Municipal Court
                                        Case No. 11 TRC 05221

         BEFORE: E.A. Gallagher, J., Boyle, P.J., and Rocco, J.

         RELEASED AND JOURNALIZED:                         August 15, 2013
ATTORNEY FOR APPELLANT

Patrick D. Quinn
2802 Som Center Rd., #102
Willoughby Hills, OH 44094


ATTORNEY FOR APPELLEE

Peter H. Hull
Law Director
City of Middleburg Heights
15700 E. Bagley Road
Middleburg Hts., OH 44130
EILEEN A. GALLAGHER, J.:

       {¶1} Eugene J. Gettings, III, appeals from the denial of his motion to suppress in

the Berea Municipal Court.     Gettings argues the trial court erred in determining that the

arresting officer performed the field-sobriety tests in compliance with national guidelines

and in finding that the officer had probable cause to stop and arrest him for operating a

vehicle while intoxicated.   For the following reasons, we affirm in part, reverse in part

and remand for proceedings consistent with this opinion.

       {¶2} In the early morning hours of December 24, 2011, Middleburg Heights

police officer Dennis Santiago observed a silver Chevy Traverse weaving as it traveled

westbound on Bagley Road. Santiago testified that he saw the vehicle weaving to the

left, drive on top of lane lines and even cross halfway into the center lane of Bagley

Road. Santiago stopped the vehicle in the parking lot of Perkins restaurant and the

driver was identified as Eugene J. Gettings, III.

       {¶3} Gettings initially related to Santiago that he did not know why he was

stopped but after hearing why, Gettings stated that he was “messing around” with his

radio, which may have caused him to weave. Santiago testified that he asked Gettings

for his license and insurance information and that it took Gettings an unusually long time

to produce the documents.       Additionally, when asked from where he was coming,

Gettings provided the officer with three different stories. Santiago testified that he

asked Gettings if he had been drinking, to which Gettings admitted that he consumed two
beers and he further testified that Gettings’ eyes were bloodshot, watery and glassy, his

speech was slurred and slow and that he had a strong odor of alcohol emanating from his

person.

       {¶4} Santiago conducted a couple of “pre-exit” tests.      While Gettings remained

in the vehicle, Santiago performed a “condensed” Horizontal Gaze Nystagmus (HGN)

test, the finger dexterity test, the number count and the alphabet recitation.   He testified

that he observed impairment in both eyes during the HGN test, observed clues of

impairment on the finger dexterity test as well as in both the number count and alphabet

recitation.   In particular, when ordered to count down from 89 to 65, backwards,

Gettings stopped at the number 80 and failed to respond at all when asked to recite from

D to P in the alphabet.

       {¶5} Santiago testified that he asked Gettings to exit the vehicle so that he could

perform the three standardized field-sobriety tests as outlined by the National Highway

Traffic Safety Administration (NHTSA).       Santiago performed the “walk-and-turn test,”

the “one-leg-stand,” and the HGN test and testified that Gettings failed all three.

Santiago testified that he performed all field-sobriety tests in compliance with the

NHTSA standards and that it was his belief that Gettings was under the influence of

alcohol.

       {¶6} The city and Gettings stipulated to the results of a breath alcohol test,

which indicated a .177 breath alcohol content.       Santiago cited Gettings for OVI, in

violation of R.C. 4511.19(A)(1)(a), BAC (breath) .17 or higher, in violation of R.C.

4511.19(A)(1)(h), driving under suspension — failure to reinstate, in violation of R.C.
4510.21 and continuous lanes weaving in violation of R.C. 4511.33(A)(1). Gettings

filed a motion to suppress, and the trial court conducted a hearing. In his motion,

Gettings argued that Officer Santiago did not have probable cause to perform the

field-sobriety tests, that there was no probable cause to arrest for OVI and that Santiago

did not perform the field-sobriety tests in compliance with NHTSA. The trial court

overruled Gettings’ motion finding that Officer Santiago had reasonable suspicion to

conduct field-sobriety tests and that he conducted them in substantial compliance with

NHTSA standards and that the officer had probable cause to arrest for OVI.

      {¶7} Gettings pleaded no contest to operating a vehicle while intoxicated and

was found guilty. Pursuant to an agreement with the city, all remaining charges were

dismissed. The trial court sentenced Gettings to ten days in jail, imposed a fine of $750

and a 730-day license suspension, ordered Gettings to pay court costs and placed him on

two years of probation with multiple conditions. Gettings’ motion to stay execution of

his sentence was granted. Gettings appeals, raising the following two assigned errors:

                                 Assignment of Error I

      The Trial Court erred in finding that the Standardized Field-sobriety tests
      were conducted in substantial compliance with NHTSA Guidelines.

                                 Assignment of Error II

      The Trial Court erred in finding probable cause for Appellant’s OVI, stop
      and arrest.

      {¶8} In his first assigned error, Gettings argues that the trial court erred when it

found that Santiago substantially complied with the NHTSA standards. We agree.

      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.

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71.

       {¶9} However, as it relates to the trial court’s conclusion of law, we apply a de

novo standard of review and decide whether the facts satisfy the applicable legal

standard.      Id., Parma Hts. v. Dedejczyk, 8th Dist. Cuyahoga No. 97664,

2012-Ohio-3458.

       {¶10}     A motion to suppress must state its legal and factual bases with sufficient

particularity to place the prosecutor and the court on notice of the issues to be decided.

State v. Schindler, 70 Ohio St.3d 54, 1994-Ohio-452, 636 N.E.2d 319.                   Once a

defendant sets forth a sufficient basis for a motion to suppress, the burden shifts to the

state to demonstrate proper compliance with the regulations involved.                  State v.

Plummer, 22 Ohio St.3d 292, 490 N.E.2d 902 (1986). In driving-under-the-influence

cases, if a motion sufficiently raises an issue involving the applicable regulations, the

state must then show substantial compliance with the regulation at issue. Plummer;

State v. Mai, 2d Dist. Greene No. 2005-CA-115, 2006-Ohio-1430.

       {¶11}     In the present case, Gettings’ motion to suppress raises 38 different

reasons to suppress the results of the field-sobriety tests and the observations of the

officer.    The crux of Gettings’ arguments, which he reiterated during the oral hearing on

his motion to suppress, were that Officer Santiago did not perform the field-sobriety tests

in compliance with the NHTSA standards, and that Officer Santiago did not have

probable cause to arrest Gettings for OVI.       Thus, Gettings sufficiently raised an issue
involving the applicable regulations; the burden then shifted to the city to show

substantial compliance with the regulation at issue. Plummer; Mai, supra.

       {¶12}   As stated by this court in Dedejczyk:

       In order for the results of field-sobriety tests to be admissible, the state is
       not required to show strict compliance with testing standards, but must
       instead demonstrate that the officer substantially complied with NHTSA
       standards.     R.C. 4511.19(D)(4)(b); State v. Clark, 12th Dist. No.
       CA2009-10-039, 2010-Ohio-4567, ¶ 11. “A determination of whether the
       facts satisfy the substantial compliance standard is made on a case-by-case
       basis.” State v. Fink, 12th Dist. Nos. CA2008-10-118, CA2008-10-119,
       2009 Ohio 3538, ¶ 26. The state may demonstrate what the NHTSA
       standards are through competent testimony and/or by introducing the
       applicable portions of the NHTSA manual. State v. Boczar, 113 Ohio St.
       3d 148, 2007-Ohio-1251, 863 N.E.2d 155, at ¶ 28.

       But even if a court finds that the officer did not substantially comply with
       the NHTSA standards (which would require the results of the tests to be
       excluded), the officer’s testimony regarding the defendant’s performance
       on nonscientific field-sobriety tests is admissible under Evid.R. 701. State
       v. Schmitt, 101 Ohio St. 3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶ 14-15.

       {¶13}   During the hearing on Gettings’ motion to suppress, the city, in support of

its argument that the stop and arrest were lawful and the field-sobriety tests were

compliant with NHTSA, relied on the testimony of Officer Santiago. However, when

questioning Santiago about the three field-sobriety tests he performed, the city never

elicited Santiago’s qualifications as a police officer or his training in conducting

field-sobriety testing. Further, the city asked no questions as to how Santiago conducted

each of the three tests and what NHTSA requires.       The city simply questioned whether

the tests were performed in compliance with NHTSA, which Santiago answered in the

affirmative.   The city did not admit the NHTSA manual as evidence.

       HGN Test
          In conducting the HGN test, the NHTSA manual provides that “a police
          officer should instruct the suspect that [he is] going to check the suspect’s
          eyes, that the suspect should keep [his] head still and follow the stimulus
          with [his] eyes, and that the suspect should do so until told to stop. After
          these initial instructions are provided, the officer is instructed to position
          the stimulus approximately 12 to 15 inches from the suspect’s nose and
          slightly above eye level. The officer is then told to check the suspect’s
          pupils to determine if they are of equal size, the suspect’s ability to track
          the stimulus, and whether the suspect’s tracking is smooth. The officer is
          then to check the suspect for nystagmus at maximum deviation and for
          onset of nystagmus prior to 45 degrees.” The manual instructs the officer
          to repeat each of the three portions of the HGN test.

          In addition, the NHTSA guidelines list certain approximate and minimum
          time requirements for the various portions of the test. For instance, when
          checking for smooth pursuit, the time to complete the tracking of one eye
          should take approximately four seconds. When checking for distinct
          nystagmus at maximum deviation, the examiner must hold the stimulus at
          maximum deviation for a minimum of four seconds. When checking for
          the onset of nystagmus prior to 45 degrees, the officer should move the
          stimulus from the suspect’s eye to his shoulder at an approximate speed of
          four seconds.

Clark, supra; Dedejczyk; supra.

          {¶14}   Gettings argues that Santiago did not substantially comply with the

NHTSA standards because he performed a “condensed” HGN test while Gettings was

seated inside the vehicle1 and that the City failed to present any substantive evidence that

the HGN test conducted outside of the vehicle substantially complied with the NHTSA

requirements.

          {¶15}   After reviewing the record, we agree that Officer Santiago did not testify

to giving Gettings instructions prior to performing the HGN test; he did not testify to the


      1
       We limit our analysis to the HGN test performed outside of the vehicle. On
cross-examination, Officer Santiago admitted that the “condensed” HGN test he
performed while Gettings was seated in his vehicle was not a standardized NHTSA
test. As such, this “condensed” HGN test is not a recognized NHTSA-field-sobriety
manner in which the test was given and, he did not testify to the NHTSA standards. In

fact, the only testimony elicited concerning the HGN test performed outside of the

vehicle is as follows:

       Q: Now, did you also administer a horizontal gaze nystagmus test outside
       the vehicle?

       A: Yes, I did.

       Q: And what were the results of that test?

       A: I received six clues on that test.

       Q: And what does that indicate to you?

       A: Clues of impairment.

       {¶16} That testimony, without more, does not establish substantial compliance

with the NHTSA standards for the HGN test. As such, the trial court erred in failing to

suppress the results from the HGN test performed outside of the vehicle.       See also Mai,

2d Dist. Greene No. 2005-CA-115, 2006-Ohio-1430.

                         One-Leg-Stand Test, Walk-and-Turn Test:

       {¶17}   As stated by this court in Dedejczyk,

       In administering the one-leg-stand test, the NHTSA manual requires the
       officer to instruct subjects to begin the test with their feet together and keep
       their arms at their side for the entire test. The officer must also tell the
       suspects that they must raise one leg, either leg, six inches from the ground
       and maintain that position while counting out loud for thirty seconds.
       NHTSA standards provide that the counting should be done in the
       following manner: “one thousand one, one thousand and two, until told to
       stop.”

       Regarding the walk-and-turn test, the NHTSA manual states that an officer


test and cannot be used as scientific evidence of intoxication.
       is required to first instruct the suspect of the initial positioning, which
       requires the suspect to stand with his arms down at his side, and to place his
       left foot on a line (real or imaginary). The suspect’s right foot is to be
       placed on the line ahead of the left foot, with the heel of the right foot
       against the toe of the left foot. The suspect is then told to remain in that
       position while further instructions are given. These further instructions
       include the method by which the suspect walks while touching his heel to
       his tow for every step, counting the nine steps out loud while walking down
       the line, and making a turn with small steps with one foot while keeping the
       other foot on the line. The officer is also told to demonstrate the
       instructions to ensure that the suspect fully understands.

See also Clark.

       {¶18}      As it relates to both the one-leg-stand test and the walk-and-turn test,

Gettings argues that the NHTSA manual provides restrictions on performing both of

those tests on people with knee problems.        In particular, Gettings’ counsel instructed

Officer Santiago to read the following portion of the NHTSA manual:

       The original research indicated that certain individuals over 65 years of
       age, back, leg or inner ear problems or people who were overweight by 50
       or more pounds had difficulty performing this test. Individuals wearing
       heels more than 2 inches high should be given the opportunity to remove
       their shoes.

       {¶19}      During the hearing, Gettings testified that he suffered from knee problems

and that he walks with a limp. Specifically, Gettings testified that he told Officer

Santiago that he was going to “fail because my knees — I have a torn meniscus in my

right leg.”   Santiago admitted, under cross-examination, that he was aware that Gettings

had knee issues and that his report documented those problems.          In response to the

testimony of Gettings, Santiago was recalled to the witness stand by the city and testified

that Gettings “said he had some knee issues from wrestling back in high school and

[Gettings] stated that he had no problem standing or walking.”
       {¶20}     We cannot ignore the fact that the one-leg-stand test and the

walk-and-turn tests were performed by Gettings without Santiago’s consideration of, and

adaptation for, Gettings’ alleged physical problem. Though the officer and Gettings

provided conflicting testimony as to the seriousness of Gettings’ knee problems, both

sides admit that prior to administering those tests, Gettings advised Santiago that he had

knee issues, which Santiago then documented in his report.

       {¶21}      In   State   v.   Lange,   12th   Dist.   Butler   No.   CA2007-09-232,

2008-Ohio-3595, a defendant attempted to perform the walk-and-turn test but had

problems successfully completing the test before he refused to continue.         When the

officer began to explain the one-leg-stand test to him, the defendant informed the officer

that he had leg problems and the officer halted the test.    The court determined that the

“purpose of the walk and turn test to assist the officer in determining possible impairment

is thwarted by the officer’s lack of knowledge of appellee’s leg problem.”     The Twelfth

District then upheld the suppression of the results of the walk-and-turn field-sobriety test

because the administering officer failed to consider or adapt the test for the defendant’s

leg problems.

       {¶22}    We find the holding of Lange persuasive in this case. Gettings informed

Santiago that he had knee problems that Santiago testified he documented in his report.

Additionally, Santiago read a portion of the NHTSA manual, which notes problems with

both the walk-and-turn and the one-leg-stand tests in individuals with “leg” problems.

Santiago acknowledged this restriction during the oral hearing.            However, even

knowing all of the above, Santiago provided no consideration or adaptation of the test for
Gettings’ knee problems.     The city provided no evidence to the court as to what

adaptations or consideration the NHTSA manual requires, they simply disputed the extent

of Gettings’ knee problem.

       {¶23}   Here, the city has failed to prove that the walk-and-turn and one-leg-stand

field-sobriety tests were performed in substantial compliance with the NHSTA

requirements. Accordingly, the trial court erred in failing to suppress the results of both

the walk-and-turn and one-leg-stand field-sobriety tests. Lange, supra; State v. Baker,

12th Dist. Warren No. CA2009-06-079, 2010-Ohio-1289.

       {¶24}   Gettings’ first assignment of error is sustained.

       {¶25}   In his second assignment of error, Gettings argues that there was no

probable cause to stop and arrest him for OVI.    We disagree.

       {¶26}   In determining whether the police had probable cause to arrest appellant

for OVI, we must determine whether, at the moment of arrest, the police had information

sufficient to cause a prudent person to believe that the suspect was driving under the

influence.   Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).             A

probable-cause determination is based on the “totality” of facts and circumstances within

a police officer’s knowledge. State v. Miller, 117 Ohio App.3d 750, 761, 691 N.E.2d

703 (11th Dist.1997). While the odor of alcohol, glassy eyes, slurred speech, and other

indicia of alcohol use by a driver are, in and of themselves, insufficient to constitute

probable cause to arrest, they are factors to be considered in determining the existence of

probable cause.      Kirtland Hills v. Deir, 11th Dist. Lake No. 2004-L-005,

2005-Ohio-1563; Dedejczyk.
       {¶27}   Even where the results of field-sobriety tests are properly suppressed, this

does not prohibit a police officer from testifying about his observations of a suspect while

administering or attempting to administer field-sobriety tests. State v. Schmitt, 101 Ohio

St.3d 79, 2004-Ohio-37, 801 N.E.2d 446. Although we concluded that the test results of

the field-sobriety tests should have been suppressed, pursuant to Schmitt, Santiago’s

observations regarding Gettings’ test performance are admissible in determining whether

he had probable cause to arrest Gettings.

       {¶28}   Santiago testified that he witnessed Gettings weave out of his lane three

times and cross halfway into the center lane at one point.     Gettings’ eyes were glassy,

bloodshot and watery and his speech was noticeably slow and slurred. Gettings did not

realize that he had been driving erratically and there was a strong odor of alcoholic

beverage emanating from his person.         Gettings provided several stories when asked

where he had been and he failed to respond when Santiago asked him to recite the

alphabet from D to P. Additionally, when asked to count backwards from 89 to 65,

Gettings stopped when he reached 80.

       {¶29}    Regarding the field-sobriety tests, Santiago testified that during the

walk-and-turn test, Gettings was unable to keep his balance during the instructions,

stepped out of starting position, raised his arms more than six inches for balance, did not

walk heel-to-toe, stepped off the line multiple times, lost balance while turning and

turned incorrectly.   Additionally, during the one-leg stand, Santiago testified that

Gettings swayed while balancing, raised his arms more than six inches for balance, put

his foot down and could not complete the test.
       {¶30}   Although Gettings attempts to explain all of the above, arguing that his

lack of sleep and documented knee problems accounted for Santiago’s observations, the

trial court, in ruling on a motion to dismiss, evaluated the credibility of this testimony and

determined that Santiago had probable cause to stop and arrest Gettings for OVI.       Based

on the observations noted above, we find this determination to be supported by

competent, credible evidence and affirm the trial court’s ruling that Santiago had

probable cause to stop and arrest Gettings for OVI. See Burnside, supra.

       {¶31}   Gettings’ second assignment of error is overruled.

       {¶32}   Accordingly, based on our decision that field-sobriety-test results should

have been suppressed, it is necessary to remand this case for a determination as to

whether there was sufficient evidence, without the field-sobriety-test-results, to support

Gettings’ conviction.       See State v. Purdy, 6th Dist. Huron No. H-04-008,

2004-Ohio-7069.

       {¶33}   The judgment of the trial court is affirmed in part, reversed in part and

remanded.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR
