State v. Bish

[Cite as State v. Bish, 191 Ohio App.3d 661, 2010-Ohio-6604.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

THE STATE OF OHIO/ )
CITY OF YOUNGSTOWN, ) CASE NO. 09 MA 145
)
APPELLANT, )
)
-V- ) OPINION
)
BISH, )
)
APPELLEE. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown
Municipal Court, Case No. 09TRC655.

JUDGMENT: Reversed and Remanded.

APPEARANCES:

Joseph R. Macejko, Youngstown Prosecuting Attorney, and John H. Marsh Jr.,
Assistant Prosecuting Attorney, for appellant.

JUDGES:

Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite

Dated: December 29, 2010
 -2-

DEGENARO, Judge.

{¶ 1} This timely appeal comes for consideration upon the record in the trial

court and appellant's brief. Plaintiff-appellant, the state of Ohio, appeals the August 11,

2009 decision of the Youngstown Municipal Court that suppressed the results of field

sobriety and breathalyzer tests in the context of an operating-the-vehicle-under-the-

influence (“OVI”) case against defendant-appellee, Julie Bish. On appeal, the state

argues that contrary to the trial court's ruling, it met its burden in establishing substantial

compliance with the regulations pertaining to the breathalyzer test, even though it

provided no testimony citing by name or number any Administrative Code sections. The

state also contends that it met its burden of establishing substantial compliance with the

regulations pertaining to the standardized field sobriety tests even though the trooper

did not cite the National Highway Traffic Safety Administration (“NHTSA”) manual or the

like during the suppression hearing, nor did the state introduce the NHTSA manual as

evidence. For these reasons, the state contends that the trial court erred by

suppressing the results of the field sobriety tests and the breathalyzer test.

{¶ 2} Upon review, we conclude that the trial court correctly suppressed the

results of the field sobriety tests because there was no evidence presented regarding

NHTSA or other credible, reliable field sobriety testing standards. The trial court

incorrectly suppressed the breathalyzer test because the state was not required to

produce evidence of the applicable administrative code sections and because even

absent the results of the field sobriety tests, there was probable cause to arrest Bish

and have her submit to the breathalyzer. Accordingly, the judgment of the trial court is
 -3-

reversed, and the cause is remanded for further proceedings.

Facts and Procedural History

{¶ 3} At approximately 1:48 a.m. on February 28, 2009, Bish was traveling west

on Mahoning Avenue in Youngstown, Ohio. Trooper Vic Wolfe of the Ohio State

Highway Patrol was traveling the opposite direction on Mahoning Avenue and observed

Bish accelerate to make it through a yellow light. He visually estimated Bish's speed as

43 m.p.h. in a 35 m.p.h. zone, an estimate that he confirmed by radar. The trooper then

turned around to follow Bish's vehicle so he could observe her more closely. He then

saw Bish make a right turn on red after coming to a complete stop, but without using her

turn signal. At that point, the trooper activated his lights and initiated a traffic stop. The

trooper said he observed that Bish had bloodshot, glassy eyes and noticed a moderate

odor of alcohol. He asked her to produce her license, insurance, and registration, which

she did in a slow and delayed manner. The trooper then asked Bish to exit her vehicle,

and the trooper observed her reaction to be somewhat "slow and delayed." He testified

that acting in a slow and delayed manner was indicative of alcohol impairment.

{¶ 4} Based on his observations, the trooper instructed Bish to perform three

standardized field sobriety tests: the horizontal gaze nystagmus (“HGN”), the walk and

turn, and the one-leg stand. According to the trooper, Bish failed all three tests. At

some point during the stop, the trooper asked Bish whether she had consumed alcohol

that evening, and Bish admitted drinking two to three beers since she had finished work

at midnight. Based on his observations and Bish's poor performance on the field

sobriety tests, the trooper placed Bish under arrest for OVI and transported her to the
 -4-

patrol post, where he administered the breath-alcohol concentration (“BAC”)

Datamaster test. This breathalyzer measured Bish's breath-alcohol content as 0.122,

which is over the legal limit.

{¶ 5} Bish was charged with OVI in violation of R.C. 4511.19(A)(1)(a); operating

a vehicle with a prohibited BAC in violation of R.C. 4511.19(A)(1)(d); and with a turn-

signal violation pursuant to R.C. 4511.39.

{¶ 6} Bish filed a motion to suppress the evidence seized as a result of the

traffic stop, the field sobriety tests, the arrest, and the breathalyzer test. In support of

her motion, Bish argued that the trooper did not have reasonable, articulable suspicion

to stop her and to perform standardized field sobriety testing. Furthermore, Bish argued

that the trooper failed to administer the field sobriety tests in substantial compliance with

the proper procedures and therefore lacked probable cause to arrest her. Finally, Bish

argued that the breathalyzer test was not performed in substantial compliance with the

applicable Ohio Administrative Code provisions. To that end, Bish listed 22 alleged

grounds to suppress the evidence.

{¶ 7} At the evidentiary hearing, Bish withdrew 11 of the challenge grounds

listed in her suppression motion at the beginning of the hearing based on discovery

provided by the state. Troopers Eric Brown and Vic Wolfe testified. At the close of the

hearing, defense counsel argued that the state had failed to produce evidence of the

applicable standards for the field sobriety tests and the breathalyzer test. The trial court

permitted defense counsel to file post-hearing supplemental authority relating to this

issue.
 -5-

{¶ 8} The state filed a motion to reopen the suppression hearing for additional

testimony, which was opposed by Bish. After hearing arguments of counsel, the trial

court denied the motion. In an August 11, 2009 judgment entry, the trial court granted

Bish's suppression motion. The trial court's reasons for granting the suppression

motion were that the state had presented no evidence as to the applicable standards for

the breathalyzer and field sobriety tests or whether the troopers had substantially

complied with them. Accordingly, the trial court suppressed the results of both the field

sobriety tests and the breathalyzer test.

{¶ 9} The state filed a timely notice of appeal that was accompanied by a

certification pursuant to Crim.R. 12(K). Although Bish's retained counsel initially filed a

motion for leave to file an appellee's brief, counsel subsequently filed a motion to

withdraw, stating he had been unable to locate and communicate with Bish for a

significant period of time and was therefore unable to effectively represent her interest

in this matter. This court granted counsel's motion to withdraw and granted Bish time to

advise this court as to her substitute counsel. Bish has failed to file a brief in this

matter; thus, this court may accept the state's statement of the facts and issues as

correct and reverse the trial court's judgment if the state's brief reasonably appears to

sustain such action. See App.R. 18(C).

Standard of Review

{¶ 10} Both of the state's assignments of error challenge the trial court's ruling on

the motion to suppress. Appellate review of a motion to suppress presents a mixed

question of law and fact. State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707
 -6-

N.E.2d 539. 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. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d

972. 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, at ¶ 8. Accepting these facts as true, the

appellate court conducts a de novo review of whether the facts satisfy the applicable

legal standards at issue in the appeal. Id.

Field Sobriety Tests

{¶ 11} For ease of analysis, the state's two assignments of error will be

addressed out of order, the second of which asserts:

{¶ 12} "The trial court committed error in suppressing the results of the field

sobriety test."

{¶ 13} As aforementioned, the trooper had Bish perform three standardized field

sobriety tests: the HGN, the walk and turn, and the one-leg-stand. According to the

trooper, Bish failed all three. The trial court suppressed the results of all three tests

because the state adduced no testimony or other evidence about standards used to

administer the field sobriety tests. The state contends that this ruling was erroneous.

{¶ 14} The Ohio Supreme Court has recognized that since the amendment of

R.C. 4511.19 by the Ohio legislature in 2003, field sobriety tests need not be conducted

in strict compliance with standardized testing procedures. State v. Schmitt, 101 Ohio

St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, at ¶ 9. "Instead, an officer may now testify
 -7-

concerning the results of a field sobriety test administered in substantial compliance

with the testing standards." Id.

{¶ 15} R.C. 4511.19(D)(4)(b) provides that evidence and testimony regarding the

results of a field sobriety test may be presented "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."

{¶ 16} As a threshold matter, the state argues that Bish's allegations in her

suppression motion regarding the field sobriety tests were not specific and therefore

required the state only to present general testimony to demonstrate substantial

compliance. This court has previously held that in order to shift the burden to the state

to prove substantial compliance, a defendant's suppression motion must state the

grounds for suppression with both specificity and particularity. See, e.g., State v.

Phillips, 7th Dist. No. 08-MO-6, 2010-Ohio-1547; State v. Kale, 7th Dist. No. 08-CO-47,

2009-Ohio-6530.

{¶ 17} In Phillips, the defendant raised only the very general argument that the

field sobriety tests were not performed in substantial compliance with the NHTSA

regulations, with no further elaboration and without pointing to facts that occurred during

the tests or to instructions that the defendant believed did not comply with the

standards. This court accordingly held that the suppression motion was not specific
 -8-

enough to shift the burden to the state to demonstrate compliance with the applicable

standards. Phillips at ¶ 17-20, following State v. Arnold, 7th Dist. No. 05-CO-60, 2006-

Ohio-5228, at ¶ 12 ("Appellant failed to allege facts in his motion as to how * * * [the

officer] instructed him to perform the tests and how they did not comply with NHTSA

standards. For this reason, the trial court did not err in denying appellant's motion to

suppress the results of his field sobriety tests"); and State v. Gozdan, 7th Dist. No. 03

CA 792, 2004-Ohio-3209, at ¶ 10 ("merely stating that * * * [the field sobriety test] was

not performed in strict compliance provides no factual basis to support the allegation").

{¶ 18} In Kale, the defendant took what this court termed a "throw-everything-at-

the-wall-and-see-what-sticks" approach, listing many grounds in a boilerplate fashion,

without linking those grounds to any particular facts in the case. Kale, 2009-Ohio-6530,

at ¶ 18. This court found that this approach also does not shift the burden to the state

to demonstrate substantial compliance. Id.

{¶ 19} Here, it appears that counsel has a template that is used for motions to

suppress. The motion itself seeks to suppress:

{¶ 20} "1. Tests of defendant's coordination and/or sobriety and/or drug level,

including but not limited to chemical tests of Defendant's alcohol and/or drug level. 2.

Statements taken from or made by the Defendant. [3.] The results of all tests

administered to determine a level of alcohol." The motion then goes on to list 22

grounds that the state must address to show why the evidence should not be

suppressed. The motion is unsigned, and item numbers 2, 3, 4, 9, 11, 12, 14, 15, 17, 19

and 20 have been struck through. The attached memorandum in support of the motion
 -9-

identifies a defendant other than Bish in the heading. On the day of the hearing, Bish

withdrew 11 of the 22 grounds upon which she was basing her suppression motion.

Although at first it appears that the motion is the "throw everything at the wall" type

cautioned against in Kale, it still appears that Bish stated her grounds to suppress the

field sobriety tests with sufficient specificity and particularity so as to shift the burden of

proof to the state. With regard to the HGN test, her motion states:

{¶ 21} "The HGN was not done within the proper time elements provided for in

the N.H.T.S.A. manual. The trooper did not grade the test properly as required by the

NHTSA manual. The trooper did not perform all the medical checks required to conduct

this test. During distinct nystagmus, the trooper did not observe the nystagmus for the

specified period to endure that it was distinct and sustained. During the onset prior to

45 degree test the trooper did not stop when nystagmus was allegedly observed and

verify its existence. The trooper did not perform any of the HGN tests the number of

times required by the manual. The State is required to demonstrate substantial

compliance for the outcome of the tests to be used to establish probable cause."

{¶ 22} With regard to the one-leg stand and the walk-and-turn test, Bish

specifically alleged in her suppression motion:

{¶ 23} "On the One Leg Stand and Walk and Turn portion of the test there is no

evidence that the trooper provided all of the required instructions or that the tests were

administered on a dry, level and non-slippery surface. There is also no evidence that

the trooper graded the test properly. The trooper failed to ask Ms. Bish if she

understood the instructions. As a result, Ms. Bish had to ask the trooper how she was
 - 10 -

supposed to turn. The trooper failed to give her the proper instruction at that time, yet

marked as a clue that she did not turn properly. The conditions were not condusive [sic]

to the performance of this test and as a result, the test could not have been

administered in substantial compliance with the NTSA [sic] Manual. The trooper failed

to instruct Ms. Bish where she should be looking during the test. The Defense has not

been provided any evidence in discovery to demonstrate the trooper's training and

qualifications as well as if any of the tests were conducted and graded in substantial

compliance with the NHTSA standards that were in effect that date. The same

arguments apply to the Walk & Turn test."

{¶ 24} Because Bish alleged specific facts in her motion about noncompliance

with the field sobriety tests, the burden shifts to the state to prove substantial

compliance with the applicable standards. Typically such standards originate from the

NHTSA manual; however, the statute itself does not specify that the NHTSA must be

used. R.C. 4511.19(D)(4)(b). Rather, "testing standards include, but are specifically not

limited to the NHTSA guidelines." (Emphasis added.) State v. Sunday, 9th Dist. No.

22917, 2006-Ohio-2984, at ¶ 21, citing R.C. 4511.19(D)(4)(b). Therefore, the court in

Sunday emphasized it was "careful not to extol the NHTSA guidelines as the sole

'reliable, credible, and generally accepted field sobriety test.' " Id.

{¶ 25} Other appellate districts that have addressed this issue have held that if

no evidence of a reliable field sobriety testing standard is produced at the suppression

hearing, either via testimony or introduction of the applicable manual, the state does not

meet its burden of demonstrating compliance. See State v. Broom, 2d Dist. No. 22468,
 - 11 -

2008-Ohio-5160, at ¶ 12; State v. Perkins, 10th Dist. No. 07AP-924, 2008-Ohio-5060, at

¶ 16; State v. Brown, 166 Ohio App.3d 638, 2006-Ohio-1172, 852 N.E.2d 1228, at ¶ 23

(Eleventh District); State v. Sunday, 2006-Ohio-2984, at ¶ 22-25 (Ninth District); Gates

Mills v. Mace, 8th Dist. No. 84826, 2005-Ohio-2191, at ¶ 24-26; State v. Ryan, 5th Dist.

No. 02-CA-00095, 2003-Ohio-2803, at ¶ 21; State v. Nickelson (July 21, 2001), 6th Dist.

No. H-00-036 at *4.

{¶ 26} Moreover, this court stated recently that where there was no testimony

that an HGN test was performed in compliance with NHTSA or a comparable manual

test, and the state did not offer anything to show that it had been performed in

substantial compliance or standards were followed, that the defendant "may" have had

a basis for suppressing. Phillips, 2010-Ohio-1547, at ¶ 23. Ultimately, in Phillips, this

court held any error harmless because there was ample evidence aside from the field

sobriety test results demonstrating probable cause, namely driving left of center three

times, driving off the roadway twice, smelling of alcohol, and admitting to consuming

alcohol. Id. at ¶ 31.

{¶ 27} Now given the opportunity to address the issue directly, we follow our

sister districts and hold that some evidence of the NHTSA or other testing standards is

required. 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
 - 12 -

similar manual or both.

{¶ 28} 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 sobriety tests in substantial compliance with the

NHTSA or any other set of standards as required by R.C. 4511.19(D)(4)(b).

{¶ 29} During the hearing on the motion to reopen the suppression hearing, the

state essentially argued that no specific testimony about the field sobriety testing

standards was required since the court was familiar with the NHTSA standards from

other cases. The state presents a similar argument on appeal, arguing that because the

requirements for field sobriety tests are so well known that introduction of the NHTSA

manual or testimony is unnecessary, citing Gozdan, 2004-Ohio-3209, in support of this

argument. In Gozdan, this court did state that "[t]he requirements for the field sobriety

tests are well known." However, that statement was made in the context of a discussion

about the defendant's burden to state specific grounds for suppressing field sobriety test

results in his motion. Id. at ¶ 10. However, the ultimate holding in Gozdan was the

following: "[T]he mere allegation that the tests were not administered in strict

compliance with the NHTSA standards did not mandate the trial court to hold a hearing
 - 13 -

on the suppression motion. The trial court did not abuse its discretion in failing to hold a

hearing on the motion to suppress the field sobriety tests." Id. at ¶ 10. Thus, Gozdan

does not support this argument.

{¶ 30} Further, whether the field sobriety testing standards are well known does

not appear to change the outcome in the present case. The state never elicited

testimony about which standards were used. In fact, the NHTSA itself was never even

mentioned until the state's closing argument, which itself does not constitute evidence.

See, e.g., State v. Riester, 11th Dist. No. 2005-L-061, 2006-Ohio-3771, at ¶ 18.

{¶ 31} In sum, in cases where the suppression motion alleges specific facts

about the noncompliance with field sobriety test standards, the state is required to come

forward with at least some evidence of what the standards were. Here, there was a

dearth of evidence presented about the standards; the state introduced no exhibits or

testimony on this issue. For this reason, the trial court properly suppressed the results

of the field sobriety tests. Accordingly, the state's second assignment of error is

meritless.

Breathalyzer

{¶ 32} In its first assignment of error, the state asserts:

{¶ 33} "The trial court committed error in suppressing the results of the

breathalyzer test."

{¶ 34} The state contends that the trial court erred by suppressing the results of

the breathalyzer test. The trooper administered the breathalyzer to Bish at the highway

patrol post after she failed the field sobriety tests and after he placed her under arrest.
 - 14 -

It is undisputed that Bish's suppression motion raised ten distinct challenges to the

breathalyzer test and elaborated on the factual basis for some of those challenges in

her memorandum in support of her motion to suppress.

{¶ 35} Specifically, Bish alleged the following: (1) the individual administering the

breathalyzer did not comply with the operator's checklist instructions issued by the Ohio

Department of Health (“ODH”) included in the appendices to Ohio Adm.Code 3701-53-

04; (2) the testing agency did not retain the results of all tests administered, including

the operational checklists, for the past three years as required by Ohio Adm.Code 3701-

53-01; (3) the testing agency did not have at least one copy of the written procedure

manual, or an operational manual provided by the manufacturer, as required by Ohio

Adm.Code 3701-53-06(D), on file where the tests are performed as required by Ohio

Adm.Code 3701-53-01; (4) the breath-testing instrument was not properly tested to

determine radio-frequency interference every seven days, as required by Ohio

Adm.Code 3701-53-04, by a senior operator utilizing a hand-held radio regularly used

by law enforcement as required by Ohio Adm.Code 3701-53-04(A)(1); (5) the solution

used to calibrate the testing instrument was invalid and not properly maintained in

accordance with Ohio Adm.Code 3701-53-04. The calibration-solution container was

not retained properly. The instrument-check solution was not kept under refrigeration

while it was not being used; (6) the instrument was not properly checked following its

return from service, maintenance, or repairs as required by Ohio Adm.Code 3701-53-

04(B); (7) the person or persons calibrating the instrument analyzing Bish's alcohol level

were not currently licensed senior operators to calibrate the instrument in accordance
 - 15 -

with Ohio Adm.Code 3701-53-08(C) and 3701-53-09. In particular, Bish alleged that the

calibration checks in this case were not performed by an officer who had successfully

completed a basic senior operator, upgrade, or conversion course for the type of

approved evidential breath-testing instrument for which they sought a permit; (8) results

of all instrument checks, and records of maintenance and repairs, were not properly

retained as required by the Ohio Administrative Code; (9) the testing officer was not

subject to a survey and proficiency examination by representatives of the Director of

Health as required by Ohio Adm.Code 3701-53-08, and the testing officer did not

complete a proficiency exam with a representative of the director of the Department of

Health, in person; and (10) the officer who administered the test and the officers who

calibrated the machine prior to and following the defendant's test do not hold proper

permits to operate the model of Datamaster used to obtain this test as mandated by

Ohio Adm.Code 3701-53-08(B).

{¶ 36} In light of these specific challenges, the burden shifted to the state to

demonstrate substantial compliance with the ODH regulations. Defiance v. Kretz

(1991), 60 Ohio St.3d 1, 3, 573 N.E.2d 32. See also R.C. 4511.19(D) ("The bodily

substance withdrawn under division (D)(1)(b) of this section shall be analyzed in

accordance with methods approved by the director of health by an individual possessing

a valid permit issued by the director pursuant to section 3701.143 of the Revised

Code").

{¶ 37} R.C. 3701.143 provides:

{¶ 38} "For purposes of sections * * * 4511.19 * * * of the Revised Code, the
 - 16 -

director of health shall determine, or cause to be determined, techniques or methods for

chemically analyzing a person's * * * breath, or other bodily substance in order to

ascertain the amount of alcohol * * * in the person's * * *breath[.] * * * The director shall

approve satisfactory techniques or methods, ascertain the qualifications of individuals to

conduct such analyses, and issue permits to qualified persons authorizing them to

perform such analyses. Such permits shall be subject to termination or revocation at

the discretion of the director."

{¶ 39} The ODH regulations authorized by R.C. 3701.143 pertaining to

breathalyzer tests are found in the Ohio Administrative Code. See Ohio Adm.Code

3701-53-01 et seq.

{¶ 40} Here, the trial court appeared to suppress the results of the breathalyzer

for the same reason it suppressed the field sobriety tests — i.e., lack of testimony citing

the ODH regulations or other evidence of those regulations. Specifically, the court

stated:

{¶ 41} "[I]t is inappropriate for the court to take judicial notice of the standards

contained in the manual or any other administrative code sections, for that matter. * * *

[The troopers] may have been trained pursuant to other administrative codes or

administered the tests pursuant to other codes. Or, they may not have administered the

[breathalyzer] test[ ] in substantial compliance with any administrative codes. * * *

Accordingly, since no testimony was presented to show what the applicable standards

were or whether the troopers substantially complied with them, the result[ ] of * * * the

breathalyzer test [is] suppressed."
 - 17 -

{¶ 42} The state contends that this ruling was erroneous because the

breathalyzer standards are promulgated in the Ohio Administrative Code, meaning no

evidence of them is required. Rather, the state argues that the Ohio Administrative

Code provisions are simply the law in Ohio. We agree. While, as discussed in the

context of the second assignment of error above, there are numerous cases holding

that some evidence of the standards used for field sobriety tests is required, there

appear to be no cases holding that it is necessary to introduce evidence of the

Administrative Code sections pertaining to the breathalyzer test. The cases cited by the

trial court in its opinion all relate to the State's burden to produce some evidence about

the standards used for the field sobriety tests, not for the administration of the

breathalyzer test. See Broom, 2008-Ohio-5160; Sunday, 2006-Ohio-2984; Mace, 2005-

Ohio-2191; State v. Duncan, 11th Dist. No. 2004-L-065, 2005-Ohio-7061.

{¶ 43} As indicated, the standards relating to the breathalyzer are ODH

regulations found in the Administrative Code itself. Ohio Adm.Code 3701-53-01 et seq.

"An Ohio Administrative Code section is a further arm, extension, or explanation of

statutory intent implementing a statute passed by the General Assembly. It has the

force and effect of a statute itself." State ex rel. Meyers v. Ohio State Lottery Comm.

(1986), 34 Ohio App.3d 232, 234, 517 N.E.2d 1029.

{¶ 44} By contrast, the standards for the field sobriety tests can come from

NHTSA or some other reliable manual for standardized testing, none of which are

included specifically in the Ohio Administrative Code. The NHTSA could perhaps be

best characterized as an "official publication." State v. Frakes, 5th Dist. No. 07CA0013,
 - 18 -

2008-Ohio-4204, at ¶ 44-47. However, the NHTSA manual does not carry the force of

law as the Administrative Code does. Consequently, while it appears that the state

must produce some evidence of the field sobriety testing standards, it need not produce

evidence of the ODH regulations pertaining to the breathalyzer as those contained in

the Administrative Code. It appears the state is correct that an inquiry into the relevant

Administrative Code provisions is a matter of law properly for the trial court to examine.

{¶ 45} Moreover, although they did not specify the Administrative Code sections

by name or section number, the troopers did discuss at length the requirements

contained therein and how they substantially complied with them. Trooper’s Brown and

Wolfe both testified how they were certified by ODH to operate the BAC DataMaster

breathalyzer machine. Trooper Brown described the BAC DataMaster instrument check

form as "a form prescribed by the Ohio Department of Health weekly when the machine

is calibrated." Further, the state introduced as exhibits numerous documents relating to

the administration of the breathalyzer, many of which contain the applicable

Administrative Code sections listed thereon. For all these reasons, the trial court erred

in its determination that a lack of testimony citing specific code provisions required

suppression of the breathalyzer-test results.

{¶ 46} Because we have concluded that the trial court correctly suppressed the

field sobriety test results but erred by suppressing the BAC results, we must determine

whether there is enough additional evidence of impairment to establish probable cause

to arrest Bish and have her submit to the breathalyzer test.

{¶ 47} The standard for determining whether there was probable cause to arrest
 - 19 -

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.

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

other grounds as stated in R.C. 4511.19(D)(4)(b)). That determination is based on the

totality of the facts and circumstances surrounding the arrest. Id. Even if the results of

field sobriety tests are suppressed, the officer's observations of the suspect while

performing those tests can be considered when evaluating probable cause. See State

v. Cunningham, 7th Dist. No. 08 MO 8, 2009-Ohio-4394, at ¶ 24, citing State v. Schmitt,

101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶ 14-15; State v. Johnson, 7th Dist.

No. 05 CO 67, 2007-Ohio-602, at ¶ 25 (even if final result should be suppressed,

officer's observations of motions during test are evidence court can consider in

probable-cause evaluation and are not subject to statutory substantial-compliance test).

Whether or not there was probable cause is a legal issue that is reviewed de novo. See

State v. Salas, 9th Dist. No. 21891, 2004-Ohio-6274, at ¶ 17.

{¶ 48} Although each case is decided on its unique facts and circumstances, a

discussion of cases where probable cause was at issue is instructive. For example, in

State v. Flowers, 7th Dist. No. 07-MA-68, 2007-Ohio-6920, this court held there was

probable cause to arrest for OVI where the defendant drove left of center three times,

stopped at an intersection for a prolonged period of time, took a prolonged period of

time to pull over, smelled of alcohol, had "really slurred" speech, had bloodshot eyes,

and admitted consuming four beers. Id. at ¶ 16-19. In State v. Calder, 7th Dist. No. 08
 - 20 -

MO 5, 2009-Ohio-3329, this court held that there was probable cause to arrest for OVI

where the defendant drove through a parking spot and over a curb, smelled strongly of

alcohol, had glassy, bloodshot eyes, slurred his speech, admitted having a couple

beers, and was stopped at 2:30 a.m. on New Year's Day. Id. at ¶ 41-42.

{¶ 49} In Cunningham, 2009-Ohio-4394, this court held there was probable

cause to arrest for OVI where the defendant had kicked over a beer on his way out of

the vehicle; smelled strongly of alcohol; had bloodshot eyes; stared through the

windshield while talking so as to avoid the officer's gaze; fumbled through papers,

passing the registration by and providing a title instead; failed to touch heel to toe during

the walk-and-turn test even one time in 18 steps, even though he had been instructed to

do so and the officer had demonstrated the proper walking technique; and when on the

one-leg stand test, the defendant could keep his right leg up for only five seconds and

his left leg up for six seconds. Id. at ¶ 23-24.

{¶ 50} In all these cases, this court performed the probable-cause analysis

assuming that the results of the field sobriety tests were excluded. Likewise in Homan,

89 Ohio St.3d 421, 427, 732 N.E.2d 952, the Ohio Supreme Court, after concluding that

the results of the field sobriety tests should have been suppressed, concluded there

was probable cause where the defendant was driving erratically, had red and glassy

eyes, smelled of alcohol, and admitted consuming alcoholic beverages.

{¶ 51} In this case, Bish was observed committing two moving violations: driving

43 m.p.h. in a 35 m.p.h. zone and failing to use her turn signal at 1:43 a.m. Notably,

Bish conceded at the hearing that the failure to use her turn signal was reasonable
 - 21 -

suspicion to support the traffic stop. The trooper said that Bish's responses to his

instructions to produce her documents and to exit the vehicle were slow and delayed

and that alcohol consumption slows motor movement and delays reaction. The trooper

further testified that Bish's eyes were bloodshot and glassy, that there was a moderate

odor of alcohol about her, and that Bish admitted consuming two to three beers in

approximately two hours.

{¶ 52} Further, the trooper's observations of Bish as she performed the field

sobriety tests are admissible to show probable cause even if the results of the tests are

suppressed. See Cunningham, 2009-Ohio-4394, at ¶ 24. Here, the trooper testified

that Bish swayed before and during the one-leg stand test and put her foot down three

times, which could indicate poor balance and therefore impairment. The trooper also

testified that Bish had raised her hands "inches" during the walk and turn. The trooper

also testified that Bish had "lost her balance" during the test. Thus, based upon the

totality of the circumstances, the trooper had probable cause to arrest Bish and have

her submit to the breathalyzer. For all these reasons, the state's first assignment of

error is meritorious.

{¶ 53} In conclusion, the trial court properly suppressed the results of the field

sobriety tests because the state failed to present any evidence regarding the applicable

standards for performing those tests. The court incorrectly suppressed the results of

the breathalyzer test, because the state was not required to introduce evidence of the

specific Administrative Code sections. And even absent the results of the field sobriety

tests, based upon the totality of the circumstances, the trooper had probable cause to
 - 22 -

arrest Bish and have her submit to the breathalyzer. Accordingly, the judgment of the

trial court is reversed, and this cause is remanded for further proceedings.

Judgment reversed
and cause remanded.

VUKOVICH, P.J., concurs.

WAITE, J., concurs in judgment only.