[Cite as State v. Yost, 2018-Ohio-2873.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-18-03
v.
JAY C. YOST, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin-Fostoria Municipal Court
Trial Court No. TRC 1700750
Judgment Affirmed
Date of Decision: July 23, 2018
APPEARANCES:
Kurt A. Dauterman for Appellant
Charles R. Hall, Jr. for Appellee
Case No. 13-18-03
SHAW, J.
{¶1} Defendant-Appellant, Jay Yost, appeals the December 4, 2017
judgment of the Tiffin-Fostoria Municipal Court finding him guilty of OVI, after he
entered a plea of no contest, and sentencing him to ninety days in jail, all suspended
upon his compliance with the terms and conditions of a one-year period of
probation. On appeal, Yost claims that the trial court erred in overruling his motion
to suppress.
Relevant Facts and Procedural History
{¶2} On March 4, 2017, Trooper Jason Fowler was travelling eastbound on
U.S. 224 in Seneca County, at approximately 3:00 a.m., when he observed Yost’s
vehicle travel over the white fog line while driving westbound on the same road.
Trooper Fowler determined that Yost had committed a marked lanes violation and
conducted a traffic stop of Yost’s vehicle.
{¶3} Upon encountering Yost in his vehicle, Trooper Fowler noticed a strong
odor of marijuana and a moderate odor of alcoholic beverage emitting from the
vehicle. Trooper Fowler placed Yost in the front seat of his patrol cruiser,
performed a search of Yost’s vehicle, and found a cigarillo in the center console,
but no other contraband or alcoholic beverage. He noticed that Yost had slow
movement, and bloodshot, red, glossy eyes. He also observed raised taste buds and
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a green tint on the back of Yost’s tongue. Trooper Fowler detected a strong odor of
marijuana emitting from Yost’s person while he was seated in the patrol cruiser.
{¶4} Trooper Fowler performed the Horizontal Gaze Nystagmus (“HGN”)
field sobriety test on Yost, and observed six out of six possible clues indicating
impairment. He also noticed that Vertical Gaze Nystagmus (“VGN”) was present
in each eye during testing. He had Yost complete a number of other field sobriety
tests, which included the walk-and-turn, the one-leg stand, lack of convergence eye
test, a recitation of the alphabet from letter C to X, and counting down from numbers
57 to 42, all of which Yost performed satisfactorily. Trooper Fowler made the
determination to arrest Yost for driving a vehicle while impaired. Trooper Fowler
offered Yost a breath test, which Yost refused. He transported Yost to the Tiffin
Police Department and obtained a search warrant to draw Yost’s blood.
{¶5} On March 6, 2017, Trooper Fowler filed a complaint alleging that Yost
committed the offense of OVI, in violation of R.C. 4511.19(A)(1)(a), a
misdemeanor of the first degree, and a marked lanes violation, in violation of R.C.
4511.33, a minor misdemeanor. Yost appeared, pro se, for arraignment on March
15, 2017, where he entered a plea of not guilty.
{¶6} On April 27, 2017, the prosecution filed a motion to dismiss the OVI
based upon the blood test results revealing that Yost was under the legal limit for
driving under the influence of alcoholic beverage.
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{¶7} On May 26, 2017, the trial court held a hearing on the State’s motion to
dismiss, where Yost appeared pro se. The trial court overruled the motion, noting
that the OVI charge could proceed because “there’s lots of ways you can be
impaired. All right. It’s not just booze” and set the case for trial. (Doc. No. 58 at
3).
{¶8} On June 15, 2017, Yost retained counsel who filed a notice of
appearance, a motion for new trial date, and a request for leave to file a motion to
suppress. The trial court granted a continuance and permitted Yost to file a motion
to suppress.
{¶9} On August 4, 2017, Yost filed a “Motion to Suppress/Limine,” arguing
that this arrest was unlawful on several grounds, and requesting that the trial court
suppress the evidence obtained as result of the arrest. Specifically, Yost maintained,
inter alia, that Trooper Fowler lacked reasonable, articulable suspicion to initiate
the traffic stop, failed to perform the NHTSA standard field sobriety testing in
substantial compliance pursuant to R.C. 4511.19(D)(4), and lacked probable cause
to arrest him.
{¶10} On September 26, 2017, the trial court held a hearing on Yost’s motion
to suppress. Trooper Fowler presented testimony for the prosecution and a video
recording of the stop and arrest made from Trooper Fowler’s cruiser camera was
admitted as evidence at the hearing. At the close of the evidence, the trial court
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overruled the motion to suppress finding that Trooper Fowler had reasonable,
articulable suspicion to make the traffic stop of Yost’s vehicle based upon a marked
lanes violation, that Trooper Fowler administered the HGN test in substantial
compliance with the NHTSA standards, and that Trooper Fowler had probable cause
to arrest Yost for OVI.
{¶11} On December 4, 2017, Yost entered a plea of no contest to the charges
and the trial court sentenced him to 90 days in jail, all suspended upon his
compliance with the terms and conditions of his one-year period of probation. The
trial court also imposed a $375.00 fine, plus court costs, with a one-year license
suspension.
{¶12} Yost filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE COURT DENIED APPELLANT’S MOTION TO
SUPPRESS THE HGN DESPITE THE STATE’S FAILURE TO
SHOW BY CLEAR AND CONVINCING EVIDENCE THAT
THE STATE CONDUCTED THE HGN TEST IN
SUBSTANTIAL COMPLIANCE WITH NHTSA STANDARDS.
ASSIGNMENT OF ERROR NO. 2
THE STATE LACKED PROBABLE CAUSE TO ARREST
APPELLANT.
{¶13} For ease of discussion, we elect to address the assignments of error out
of order.
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Second Assignment of Error
{¶14} In his second assignment of error, Yost claims that Trooper Fowler
lacked reasonable, articulable suspicion of a traffic infraction to stop Yost’s vehicle.
Specifically, Yost argues that the facts in the instant case are identical to the facts
in State v. Shaffer, where we found that a one-time touching of the white line by the
tire for approximately three seconds, with no evidence concerning the circumstances
of the defendant’s failure to stay in the lane did not constitute reasonable, articulable
suspicion to stop the vehicle for a violation of R.C. 4511.33. Shaffer, 3d Dist.
Paulding No. 11-13-02, 2013-Ohio-3581.
Standard of Review
{¶15} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as
such, is in the best position to evaluate the evidence and the credibility of witnesses.
Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a
ruling on a motion to suppress, “an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence.” Burnside at
¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s
conclusions of law, however, our standard of review is de novo, and we must
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independently determine whether the facts satisfy the applicable legal standard. Id.,
citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
Relevant Authority
{¶16} The Supreme Court of Ohio has defined “reasonable articulable
suspicion” as “specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion [upon an individual’s
freedom of movement].” State v. Bobo, 37 Ohio St.3d 177, 178 (1988), quoting
Terry v. Ohio, 392 U.S. 1, 21-22 (1968). “The ‘reasonable and articulable suspicion’
analysis is based on the collection of factors, not on the individual factors
themselves.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 12, quoting
State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 11. “A traffic stop is
constitutionally valid when a law-enforcement officer witnesses a motorist drift
over the lane markings in violation of R.C. 4511.33, even without further evidence
of erratic or unsafe driving.” Mays at syllabus.
{¶17} Yost was convicted of a driving his vehicle outside the marked lanes,
in violation of R.C. 4511.33, which states:
(A) Whenever any roadway has been divided into two or more
clearly marked lanes for traffic, or wherever within municipal
corporations traffic is lawfully moving in two or more
substantially continuous lines in the same direction, the following
rules apply:
(1) A vehicle or trackless trolley shall be driven, as nearly
as is practicable, entirely within a single lane or line of traffic
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and shall not be moved from such lane or line until the driver
has first ascertained that such movement can be made with
safety.
(Emphasis added).
{¶18} In Shaffer, supra, we concluded that the record did not support a
reasonable, articulable suspicion to justify the traffic stop of Shaffer based on a
marked-lanes violation under the language of R.C. 4511.33(A)(1). This is because
the testimony of the officer established only that the tires of Shaffer’s vehicle
touched the white fog line without any additional testimony or additional evidence
as to whether or not it was “practicable” for Shaffer to remain in her lane of travel,
or whether she may have been compelled to travel outside her lane for safety
purposes. Id. at ¶ 26. It is this latter testimony or evidence as to the “practicability”
of the remaining in the lane of travel that we held in Shaffer is necessary; in addition
to evidence of merely touching the white fog line, in order to establish probable
cause of a violation of R.C. 4511.33(A)(1). In other words, we simply held in
Shaffer that the language of R.C. 4511.33(A)(1) contains a two prong test for a
marked-lane violation. In making that finding, we reasoned as follows.
In drafting the foregoing subsection [R.C. 4511.33](A)(1), the
legislature specifically chose the phase “as nearly as is
practicable” in describing a motorist’s duty to drive within a
single lane or line of traffic. We believe the language “as nearly
as is practicable” inherently contemplates some inevitable and
incidental touching of the lane lines by a motorist’s vehicle during
routine and lawful driving, without the vehicle being considered
to have left the lane of travel so as to constitute a marked lanes
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violation as proscribed by R.C. 4511.33(A)(1), such as to avoid
debris, obstructions or imperfections in the roadway.
In the alternative, the same subsection notably does not proscribe
all movement from the marked lane but expressly links any
movement from the marked lane directly with the element of
safety—specifically permitting movement from the lane only
where “the driver has first ascertained that such movement can
be made with safety.”
Accordingly, it is our conclusion that consideration of the
statutory factors of practicability and safety is integral to any
determination of a violation of R.C. 4511.33(A)(1).
{¶19} Moreover, in Shaffer, we went on to discuss the nature of the evidence
in the record that could be sufficient to address the element of practicability set forth
in the statute:
Shaffer, 2013-Ohio-3581 at ¶¶ 21-23.
We would be inclined to agree that a reasonable, articulable
suspicion of a violation of R.C. 4511.33(A)(1) could be established
by almost any evidence in the record addressing either the
practicability or the safety of the driving circumstances. This
conclusion stems in part from the fact that a sudden deviation
from the lane of travel, where there is nothing in the surrounding
circumstances to indicate why it was not practicable for the driver
to remain within the lane, could in itself raise a legitimate safety
concern sufficient to constitute a reasonable, articulable suspicion
of a violation of R.C. 4511.33(A)(1) in the right case. * * *
{¶20} Based on the foregoing analysis, we concluded in Shaffer that:
However, the fact remains that in this case there is no evidence in
the record from which any legitimate inference can be drawn
regarding either one of these requisite statutory elements. As
noted earlier, the only evidence presented to the trial court was
Trooper Sisco’s testimony that there was a one-time touching of
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Shaffer’s tires on the white fog line, causing a slight extension of
the right fender and mirror of the vehicle over the line for
approximately three seconds. There was no other evidence
concerning the circumstances surrounding Shaffer’s failure to
maintain her lane of travel.
More specifically, there was nothing in Trooper Sisco’s
testimony as to the traffic, weather or road conditions, or
anything else in the record to indicate either 1) that there was no
apparent reason why it was not practicable for Shaffer to remain
within the lane, or 2) that in this instance, Shaffer’s single and
brief movement from the lane otherwise presented any apparent
issue of safety. Accordingly, without some additional evidence in
the record regarding the surrounding circumstances, traffic and
road conditions going to the express statutory language regarding
either practicability or safety, we cannot conclude that the act of
Shaffer driving onto the white fog line one time for a matter of
three seconds is alone sufficient to establish the requisite
reasonable and articulable suspicion to stop Shaffer for a
violation of R.C. 4511.33(A)(1).
Shaffer, 2013-Ohio-3581 at ¶¶ 24-27 (emphasis added).
Analysis
{¶21} At the hearing on the suppression motion, Trooper Fowler testified
that he was travelling towards Yost’s vehicle, which was moving in the opposite
direction, at approximately 3:00 a.m., when he observed Yost drive outside of his
lane. Specifically, Trooper Fowler testified that he was watching Yost’s vehicle as
it approached “and as soon as it passed, coming towards me, it went off the, the right
side of the road just a little over the fog line. And I heard the rumble strips going as
he passed me. And that’s what got my attention.” (Doc. No. 59 at 11).
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{¶22} As in Shaffer, in this case, there was no testimony elicited from
Trooper Fowler at the suppression hearing concerning the circumstances
surrounding Yost’s failure to maintain his lane of travel—i.e., traffic, weather or
road conditions, where the rumble strips were located in relation to the marked lane,
or anything else to indicate why it was not practicable for Yost to remain within the
lane as contemplated by the statute.
{¶23} However, in this case there was also a video recording made from
Trooper Fowler’s cruiser camera depicting the entire approach of Yost’s vehicle,
weather, traffic, road conditions, and the circumstances giving rise to the stop. Our
review of that video recording, which was introduced into evidence, clearly
constitutes “evidence in the record from which [a] legitimate inference can be
drawn” that there was no apparent reason why it was impracticable for Yost to
remain his lane pursuant to the standard set forth in Shaffer. See Shaffer at ¶¶ 26-
27.
{¶24} Accordingly, we do not find error in the trial court’s consideration of
all the evidence in the record including the video and the resulting conclusion that
Trooper Fowler’s traffic stop of Yost’s vehicle for a marked lanes violation was
valid under R.C. 4533.11(A)(1). Therefore, we overrule Yost’s second assignment
of error.
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First Assignment of Error
{¶25} In his first assignment of error, Yost argues that the trial court erred in
overruling his motion to suppress based upon its finding that Trooper Fowler
substantially complied with NHTSA standards when he performed the HGN test on
Yost and found that six out of six clues of impairment were indicated. Specifically,
Yost argues that the video evidence of Trooper Fowler’s stop and arrest of Yost
demonstrates that Trooper Fowler failed to substantially comply with the applicable
standards.
Relevant Authority
{¶26} In State v. Boczar, the Supreme Court of Ohio held, “... HGN test
results are admissible in Ohio without expert testimony so long as the proper
foundation has been shown both as to the administering officer’s training and ability
to administer the test and as to the actual technique used by the officer in
administering the test.” 113 Ohio St.3d 148, 2007-Ohio-1251, ¶ 27. Moreover,
R.C. 4511.19(D)(4)(b) provides that the results of a field sobriety test are
admissible:
* * * 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 * * *.
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{¶27} Further, the Supreme Court of Ohio has made clear that the officer
may testify regarding observations made during a defendant’s performance of
standardized field sobriety tests even absent proof of “strict compliance.” State v.
Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 15.
Analysis
{¶28} Here, Trooper Fowler testified that upon approaching Yost’s vehicle
he detected a “strong odor of marijuana in the vehicle.” (Doc. No. 59 at 14).
Trooper Fowler also observed Yost to have “slow movement,” and “bloodshot, red,
glossy eyes.” He asked Yost if he had smoked any marijuana, to which Yost replied
no. Trooper Fowler testified that he placed Yost in his cruiser and conducted the
HGN test in accordance with the NHTSA training he received, and that in the course
thereof he looked for six clues of intoxication, namely lack of smooth pursuit,
distinct nystagmus at maximum deviation, and onset of nystagmus prior to forty-
five degrees in each eye. Trooper Fowler stated that he observed all six clues during
the test indicating impairment. Trooper Fowler testified that he also conducted a
Vertical Gaze Nystagmus test, and observed testified vertical nystagmus in both of
Yost’s eyes.
{¶29} While conducting the field sobriety tests, Trooper Fowler continued to
detect an odor of alcoholic beverage and marijuana on Yost’s person. He checked
Yost’s mouth and noticed “raised taste buds on the back of [Yost’s] tongue and “a
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green tint on the back of his tongue as well.” Trooper Fowler testified that based
on his training these are signs “that [Yost had] been smoking marijuana.” (Doc. No.
59 at 19, 22).
{¶30} On appeal, Yost claims that Trooper Fowler failed to substantially
comply with NHTSA standards. Specifically, Yost contends that HGN and VGN
tests should take a minimum of eighty-four seconds according to the standards, and
the video recording in this case demonstrates that Troop Fowler only took sixty
seconds to complete the tests. At the outset, we note the timing required to complete
the various elements with respect to both eyes of the HGN test as set forth in the
NHTSA manual are approximate. State v. Lominack, III, 5th Dist. Stark
No.2012CA00213, 2013-Ohio-2678, ¶ 31. Furthermore, we have rejected a similar
argument that a law enforcement officer failed to substantially comply with the
applicable standards based upon an assertion that the HGN test must be performed
in a specific number of seconds. See State v. Fittro, 3d Dist. Marion No. 9-14-19,
2015-Ohio-1884, ¶ 15.
{¶31} Nevertheless, despite Yost’s contentions on appeal, a review of the
video recording is inconclusive as to whether Trooper Fowler substantially
complied with NHTSA standards due to the fact that only the audio is captured on
the recording, and the manner in which Trooper Fowler conducted the HGN test is
not able to be observed.
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{¶32} However, 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. State v. Homan, 89 Ohio St.3d 421 (2000), superseded by statute on
other grounds as stated in State v. Boczar, supra.
{¶33} In the case at bar, the probable cause to arrest Yost for OVI was
supported by Trooper Fowler’s observations of slow movement, red, bloodshot,
glassy eyes, an odor of alcoholic beverage and marijuana, raised taste buds and
green coating of Yost’s tongue, and a marked lanes traffic violation. Thus, Trooper
Fowler’s testimony in this respect was admissible for purposes of establishing
whether he had probable cause to arrest Yost for OVI. As such, we overrule the
first assignment of error.
{¶34} Accordingly, for all these reasons, the assignments of error are
overruled and the judgment is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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State v. Yost
Combined Opinion