[Cite as State v. Kitzler, 2011-Ohio-5444.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 16-11-03

        v.

JOHN C. KITZLER,                                           OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Wyandot County Common Pleas Court
                            Trial Court No. 10-CR-0050

                                       Judgment Affirmed

                            Date of Decision: October 24, 2011




APPEARANCES:

        Todd A. Workman for Appellant

        Douglas D. Rowland for Appellee
Case No. 16-11-03



WILLAMOWSKI, J.

       {¶1} Defendant-appellant John C. Kitzler (“Kitzler”) brings this appeal

from the judgment of the Court of Common Pleas of Wyandot County denying his

motion to suppress the results of his blood alcohol tests. For the reasons set forth

below, the judgment is affirmed.

       {¶2} On August 23, 2010, Sergeant Kerwin Wiseley (“Wiseley”) of the

Wyandot County Sheriff’s Office stopped Kitzler for failing to dim his headlights

while approaching another vehicle and for a marked lanes violation. Tr. 7-9.

Upon speaking with Kitzler, Wiseley detected a strong odor of alcohol emanating

from the vehicle. Tr. 13. Wiseley testified that Kitzler’s speech was slurred and

that his eyes were glassy and bloodshot. Id. When asked, Kitzler admitted that he

had drank six beers that night. Id. Wiseley then determined that Kitzler did not

have a valid operator’s license and arrested him. Tr. 23. Since he was already

under arrest Wiseley also asked Kitzler if he consented to take the field sobriety

tests without a lawyer present and Kitzler agreed. Tr. 24. Kitzler then performed

some field sobriety tests including the horizontal gaze nystagmus test. Tr. 26.

This test gave six out of six possible clues that Kitzler was intoxicated. Tr. 37. At

that time, Wiseley also arrested Kitzler for operating a motor vehicle while

intoxicated. Tr. 38. Wiseley then transported Kitzler to the Sheriff’s Office. Tr.

39.

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       {¶3} Once at the Sheriff’s Office, Kitzler submitted to a test on the

Intoxilyzer 8000. Id. This machine requires that two different samples be given

and that the two samples be within a certain tolerance deviation for the test to be

valid. Tr. 45. Kitzler’s samples were not within the tolerance, so the test was

deemed invalid. Tr. 48. For the 20 minutes prior to taking the test, Kitzler was

observed and did not ingest any substance. Tr. 49. While waiting for the results

to print, Kitzler was taken to the bathroom and upon exiting, took a drink of water

from the fountain at 12:27 in the morning. Tr. 50, 52. Kitzler was then asked to

submit to a test on the BAC Datamaster and consented to do so. Tr. 53. Fourteen

minutes and thirty-eight seconds later, the test was given. Tr. 56. The test result

was .239 grams of alcohol per 210 liters of breath. Tr. 62.

       {¶4} On September 15, 2010, the Wyandot Grand Jury indicted Kitzler for

1) operating a motor vehicle while under the influence of alcohol with prior

convictions for doing so in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(e), a

felony of the third degree and 2) operating a motor vehicle while under the

influence of alcohol in excess of .17 gram of alcohol per two hundred liters of

breath with prior convictions for doing so in violation of R.C. 4511.19(A)(1)(h)

and (G)(1)(e), a felony of the third degree. Kitzler entered a plea of not guilty. On

October 20, 2010, Kitzler filed a motion to suppress the evidence. A hearing on

the motion was held on November 2, 2010. The trial court overruled on the

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motion on December 12, 2010. On January 25, 2011, a jury trial was held. The

jury returned a verdict of guilty on both counts of the indictment. On February 2,

2011, the trial court entered a single judgment of conviction and sentenced Kitzler

to five years in prison.    Kitzler appeals from this judgment and raises the

following assignments of error.

                            First Assignment of Error

      The trial court erred when it denied [Kitzler’s] motion to
      suppress when officers failed to observe [Kitzler] for at least
      twenty minutes prior to testing, [Kitzler] ingested a foreign
      substance, and no evidence was adduced as to how the substance
      would affect the BAC Datamaster.

                           Second Assignment of Error

      The trial court erred when it denied [Kitzler’s] motion to
      suppress when [Kitzler] submitted two separate samples via the
      Intoxilyzer 8000 that did not correlate within .020 and therefore
      produced an “invalid test”.

                           Third Assignment of Error

      The trial court erred when it denied [Kitzler’s] motion to
      suppress when officers failed to comply with the Department of
      Health regulations when testing an individual’s blood alcohol
      concentration via the Intoxilyzer 8000.

                           Fourth Assignment of Error

      The trial court erred when it denied [Kitzler’s] motion to
      suppress the field sobriety Horizontal Gaze Nystagmus Test
      conducted by the Wyandot County Sheriff’s Office as no
      evidence was submitted demonstrating substantial compliance
      with any reliable field sobriety testing standard.

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       {¶5} All of the assignments of error allege that the trial court erred by

denying the motion to suppress.

       When we consider a trial court’s denial of a motion to suppress,
       this court’s standard of review is divided into two parts. In State
       v. Lloyd (1998), 126 Ohio App.3d 94, 100, 709 N.E.2d 913, the
       court stated: “[O]ur standard of review with respect to motions
       to suppress is whether the trial court’s findings are supported by
       competent, credible evidence. State v. Winand (1996), 116 Ohio
       App.3d 286, 288, 688 N.E.2d 9 citing Tallmadege v. McCoy
       (1994), 96 Ohio App.3d 604, 608, 645 N.E.2d 802. * * * [T]his is
       the appropriate standard because ‘in a hearing on a motion to
       suppress evidence, the trial court assumes the role of trier of
       facts and is in the best position to resolve questions of fact and
       evaluate the credibility of witnesses.’ State v. Hopfer (1996), 112
       Ohio App.3d 521, 548, 679 N.E.2d 321. However, once we accept
       those facts as true, we must independently determine, as a
       matter of law and without deference to the trial court’s
       conclusion, whether the trial court met the applicable legal
       standard.”

State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, ¶22, 907 N.E.2d 1254.

See also State v. Skiver, 3d Dist. No. 11-09-07, 2010-Ohio-979. The burden of

proof in a motion to suppress the results of a blood alcohol test is on the State once

the defendant has made an issue of the legality of the test. State v. Siegel, 138

Ohio App.3d 562, 568-69, 2000-Ohio-1747, 741 N.E.2d 938. Once the accused

has raised the issue, the burden is on the State to demonstrate that either the

alleged errors did not occur or, if they did occur, that they had no effect on the test

results. Id.


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       {¶6} In the first assignment of error, Kitzler claims that the trial court erred

because the officers failed to observe him for 20 minutes prior to the testing and

that he had ingested water before taking the blood alcohol test on the BAC

Datamaster. The Ohio Department of Health test instructions impose a specific

requirement that the subject be observed for 20 minutes before the test to insure

that there is no oral intake of any material. Tr. 132 and Ohio Adm.Code 3107-

53.02(D). The sole purpose of the observation period is to prevent the oral intake

of any material which might affect the test results. Bolivar v. Dick (1996), 76

Ohio St.3d 216, 667 N.E.2d 18.

       {¶7} Here, the State concedes that within the 20 minutes immediately prior

to the test, Kitzler took a drink of water. Thus the State has the burden of proving

that the drink did not affect the results. Siegel, supra. In Siegel, this court held

that the results of the test should have been suppressed when the evidence was that

the defendant ingested large quantities of water during the twenty-minute

observation period. “[T]he state did not present any evidence that ingestion of

large quantities of water during the twenty-minute observation period before the

BAC test will not affect (sic) the results.” Id. at 569. Based upon the State’s

failure to present the evidence, this court determined as a matter of law that the

results should have been suppressed. Id.



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       {¶8} Unlike the prosecution in Siegel, the State in this case presented the

testimony of John Kucmanic (“Kucmanic”) who is the forensic toxicologist for the

Ohio Department of Health. Tr. 124. Kucmanic testified that the ingestion of

water would not affect the test. Tr. 133. With this testimony, the facts are

sufficiently different from those in Siegel to distinguish the holding in Siegel. This

court in Siegel even indicated that the result might have been different if the State

had presented evidence that the test results were not affected by the ingestion of

water. Siegel, supra at 569. Since the State did present evidence that the ingestion

of the water did not affect the test results, Kitzler was not prejudiced by the failure

of the State to strictly comply with the testing procedures. The first assignment of

error is overruled.

       {¶9} In the second assignment of error, Kitlzer alleges that the trial court

erred in permitting the admission of the test results from the Intoxilyzer 8000 that

were listed as invalid. Kitzler supports his argument by citing this court to State v.

Zamorski (2000), 141 Ohio App.3d 521, 752 N.E.2d 288. In Zamorski, the court

held that the reading observed by an officer during an invalid test is not relevant

and is thus inadmissible. Id. at 524.

       An invalid test, without some explanation to the contrary, is, by
       the plain meaning of the word “invalid,” simply without basis in
       fact. Evidence without a basis in fact is irrelevant. Without a
       detailed explanation and justification for how a visual display
       during an invalid test is relevant, which would necessarily

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          involve expert testimony, any reference to that visual display is
          irrelevant and therefore inadmissible.

Id. at 524-25.

          {¶10} Here, the State wanted to use the readings obtained during the invalid

test. Unlike the prosecution in Zamorski, the State in this case presented expert

testimony through Kucmanic that explained why the test was labeled invalid by

the machine. He testified that the deviation between the two readings was higher

than permitted, so the machine classified the results as invalid. Tr. 142. He also

testified to a reasonable degree of scientific certainty that the results of the test

were accurate despite the label of invalid. Id. This testimony was based upon the

correlation between the three samples taken.1 Given this evidence, the trial court

could reasonably conclude that the readings were valid even though they fell

outside of the deviation range. Thus, the trial court did not abuse its discretion by

denying the motion to suppress the test results from the Intoxilyzer 8000. The

second assignment of error is overruled.

          {¶11} Kitzler claims in the third assignment of error that the test results of

the Intoxilyzer 8000 should have been suppressed because Wiseley did not follow

the instructions to retest on the Intoxilyzer 8000. Specifically Kitzler claims that

Wiseley erred by not retesting him on the Intoxilyzer 8000 when the first test came



1
    Two samples were taken for the Intoxilyzer 8000 and one sample for the BAC Datamaster.

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Case No. 16-11-03



back invalid. There is no dispute that the most proper procedure would have been

for Kitzler to be retested on the machine as set forth in the instructions. However,

there is no evidence that Kitzler was prejudiced in any way by Wiseley’s testing

him on a different machine instead of retesting him on the Intoxilyer 8000. Kitzler

does not point to any error either. Thus any error would be harmless and not cause

for reversing the judgment of the trial court.      Crim.R. 52(A).      Without any

showing of prejudice, the third assignment of error must be overruled.

      {¶12} Finally, Kitlzer alleges that the trial court erred by failing to suppress

the field sobriety Horizontal Gaze Nystagmus Test (“HGN”) performed by

Wiseley.    Kitzler claims that Wiseley did not demonstrate that his testing

procedures complied with the standards.

      In any criminal prosecution * * * for a violation of division (A)
      or (B) of this section * * * 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.




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       (ii) The prosecution may introduce the results of the field
       sobriety test so administered as evidence in any proceedings in
       the criminal prosecution * * *.

       (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.

R.C. 4511.19(D)(4)(b).

       {¶13} The issue of what evidence is required to set forth the standards for

field sobriety tests has been addressed by numerous courts in Ohio. The general

consensus has been that if no evidence of a reliable field sobriety testing standard

is introduced by the State at the suppression hearing, either via testimony or

through the introduction of the applicable manual, the State has failed to meet its

burden of demonstrating compliance. See State v. Bish, 191 Ohio App.3d 661,

2010-Ohio-6604, 947 N.E.2d 257; State v. Broom, 2d Dist. No. 22468, 2008-

Ohio-5160 (holding that failure to present any evidence that test was done in

compliance with NHTSA standards required suppression of test results); State v.

Perkins, 10th Dist. No. 07AP-924, 2008-Ohio-5060 (holding that suppression not

necessary when officer testified as to training, standards, procedure used, and that

he had complied with the standards); State v. Brown, 166 Ohio App.3d 638, 2006-

Ohio-1172, 852 N.E.2d 1228 (holding that failure of the state to present evidence


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of NHTSA standards required suppression of field sobriety test results); State v.

Sunday, 9th Dist. No. 22917, 2006-Ohio-2984 (holding that failure of state to show

compliance with standards requires suppression of test results); Gates Mills v.

Mace, 8th Dist. No. 84826, 2005-Ohio-2191 (holding that city had the burden of

proving that officer complied with testing standards); State v. Ryan, 5th Dist. No.

02-CA-00095, 2003-Ohio-2803 (holding that the state bears the burden of

showing how the tests were performed and that they conformed with the

standards); and State v. Nickelson (July 21, 2001), 6th Dist. No. H-00-036 (holding

that the state must prove that tests were completed in compliance with the

standards).

       It is only logical that in order to prove substantial compliance
       with a given standard, there must be at minimum some evidence
       of the applicable standard for comparative purposes.
       Accordingly, where the suppression motion raises specific
       challenges to the field sobriety tests, the state must produce some
       evidence of the testing standards, be it through testimony or via
       introduction of the NHTSA or other similar manual or both.

       Applying that test to the instant case, the state fell short of these
       requirements. Trooper Wolfe testified about how he performed
       the various field sobriety tests and opined that Bish failed them.
       However, the trooper never testified about the NHTSA
       standards or any other credible, reliable field sobriety testing
       standard. Nor did the state introduce the NHTSA manual or the
       like as an exhibit at trial. Testimony about how the trooper
       performed the field sobriety tests presents only half the picture.
       It is impossible to tell from the evidence presented during the
       suppression hearing whether the trooper administered the field


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       sobriety tests in substantial compliance with the NHTSA or any
       other set of standards as required by R.C. 4511.19(D)(4)(b).

Bish, supra at ¶27-28.

       {¶14} Here, Kitzler specifically raised the issue of the field sobriety tests in

his motion to suppress. Wiseley testified that HGN is a standardized field sobriety

test. Tr. 21. He then testified that he had completed training and been certified to

perform the HGN. Tr. 22.       Over his ten years since certification, Wiseley had

performed between 100 and 300 HGN tests. Tr. Id. Wiseley also explained to the

court how he administered the test and the factors for which he was looking to

determine impairment. Tr. 22, 26-38. In addition to Wiseley’s testimony, the

State presented the videotape showing the testing.         Wiseley testified that he

observed six clues of impairment out of a possible six clues. Tr. 38. However,

contrary to the finding made by the trial court, at no time did Wiseley testify as to

what the standards were or even that he was in compliance with the standards. As

stated in Bish, testimony about how the tests were performed is only half of what

needs to be proven. Thus, the State did not meet its burden of proof as to the field

sobriety tests and they should have been suppressed.

       {¶15} Although the field sobriety tests should have been suppressed, the

discussion does not end there.        The next question is whether the error is

prejudicial. State v. Phillips, 7th Dist. No. 08-MO-6, 2010-Ohio-1547. “When a


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trial court erroneously fails to suppress the results of field sobriety tests, if ample

evidence exists to support the arrest and conviction, this error is harmless.” State

v. Matus, 6th Dist. No. WD-06-072, 2008-Ohio-377, ¶27.

       While field sobriety tests must be administered in [substantial]
       compliance with standardized procedures, probable cause to
       arrest does not necessarily have to be based, in whole or in part,
       upon a suspect’s poor performance on one or more of these tests.
       The totality of the facts and circumstances can support a finding
       of probable cause to arrest even where no field sobriety tests
       were administered or where, as here, the test results must be
       excluded for lack of [substantial] compliance.

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

statute on other grounds a set forth in R.C. 4511.19(D)(4)(b)). In Homan, the

Ohio Supreme Court held that erratic driving, the driver’s red and glassy eyes, the

smell of alcohol on the driver’s breath, and the driver’s admission that he had

consumed alcohol was sufficient to provide probable cause to arrest the defendant

even without the field sobriety test results. Id.

       {¶16} Wiseley testified that he noticed Kitzler for failing to dim his lights

and driving close to the center line. Tr. 9. Wiseley then turned to follow Kitzler

and observed him weaving between the left and right sides of his lane, then

crossing and straddling the center line. Id. When speaking with Kitzler, Wiseley

smelled a strong odor of alcohol and noted that his speech was slurred and slow.

Tr. 13. He learned that Kitzler did not have a valid operator’s license. Id. Once


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he was able to get a good look at Kitzler’s eyes, Wiseley noted that they were

bloodshot and glassy. Id. Wiseley asked Kitzler if he had been drinking and

Kitzler admitted to drinking six beers that evening. Id. Given the fact that Kitzler

did not have a license, was driving erratically, smelled strongly of alcohol, had

slow and slurred speech, had bloodshot and glassy eyes, and admitted to drinking

six beers, Wiseley had probable cause to arrest Kitzler for driving under the

influence of alcohol. Thus, he was not prejudiced by the trial court’s failure to

suppress the field sobriety test results.

       {¶17} Additionally, although Wiseley went to trial, he was not prejudiced

by the use of the field sobriety test results there either. For all of the above

reasons, the jury could reasonably have found him guilty of driving while under

the influence of alcohol. Even if it did affect the outcome of the conviction on that

count, the second count of the indictment claimed that he was driving with more

than the legal limit of alcohol in his system. The uncontroverted evidence was

that he was. The two counts merged for conviction and sentencing. Sentencing

Entry. Therefore, Kitzler suffered no prejudice and any error was harmless. For

this reason, the fourth assignment of error is overruled.




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       {¶18} Having found no error prejudicial to the defendant, the judgment of

the Court of Common Pleas of Wyandot County is affirmed.

                                                            Judgment Affirmed

ROGERS, P.J., concurs.

SHAW, J., concurs in Judgment Only.

/jlr




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