Cleveland v. Hyppolite

[Cite as Cleveland v. Hyppolite, 2016-Ohio-7399.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 103955

CITY OF CLEVELAND

PLAINTIFF-APPELLEE

vs.

JOANNE HYPPOLITE

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cleveland Municipal Court
Case No. 2014 TRC 066020

BEFORE: Jones, A.J., E.A. Gallagher, J., and Stewart, J.

RELEASED AND JOURNALIZED: October 20, 2016
ATTORNEY FOR APPELLANT

Patrick D. Quinn
Quinn Legal Associates Inc.
7580 Sherman
Gates Mills, Ohio 44040

Ronald A. Annotico
55 Public Square, Suite 1717
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
City of Cleveland Law Director

BY: Jennifer M. Kinsley
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:

{¶1} Defendant-appellant Joanne Hyppolite (“Hyppolite”) appeals the judgment of

the Cleveland Municipal Court denying her motion to suppress, which was rendered after

a hearing. We affirm the judgment and remand the case to the trial court for execution

of sentence.

Suppression Hearing Testimony

{¶2} The sole witness at the suppression hearing was Trooper Timothy Kay

(“Trooper Kay”) of the Ohio State Highway Patrol. The defense stipulated to the

trooper’s training and experience, which, according to the trooper, since 2014, has

involved almost 200 arrests for operating a vehicle under the influence of alcohol

(“OVI”).

{¶3} On Tuesday, December 22, 2015, shortly after 2:00 a.m., Trooper Kay

stopped a vehicle being driven by Hyppolite on Interstate 90 in Cleveland. According to

the trooper, Hyppolite was stopped for violating R.C. 4511.213, which sets forth a

driver’s “duties upon approaching stationary public safety, emergency, or a road service

vehicle displaying flashing lights.”

{¶4} Trooper Kay testified that immediately prior to stopping Hyppolite’s vehicle,

he was engaged in a traffic stop involving another motorist. When he stopped that
motorist, Trooper Kay had his police cruiser parked so that it was partially in the right

hand lane of travel. The trooper testified that as he was walking back to his cruiser from

the motorist’s car, he saw a car being driven in his direction, in the right lane where his

cruiser partially was, and assumed the driver was going to move over as she approached

him. According to Trooper Kay, the traffic at that time was light and the driver would

have been able to move over.

{¶5} Trooper Kay got back into his cruiser and was finishing up his paperwork

from the stop of the first motorist when the on-coming vehicle, driven by Hyppolite,

traveled past him in the right-hand lane where he had previously seen it. The trooper

testified that not only did Hyppolite fail to move over, she also did not slow down, and

when she drove past his cruiser, it shook. According to the trooper, his overhead lights

were still activated when Hyppolite drove past him. Trooper Kay stopped Hyppolite

based on her failure to move over or slow down. A dashboard camera inside the

trooper’s cruiser recorded the stop of the first motorist, including when Hyppolite passed

the cruiser, as well as the traffic stop involving Hyppolite. The video was played by the

city during its case and was admitted into evidence.

{¶6} Hyppolite had a front-seat passenger, and Trooper Kay testified that, upon

approaching the vehicle, the passenger initially did most of the talking while Hyppolite

looked down. Trooper Kay asked Hyppolite for her driver’s license, and she complied,

giving him a Florida license. According to the trooper, when Hyppolite did talk, her

speech was slow and slurred. She also had blood-shot, glassy eyes. She told the
trooper that she was headed to her home in Elyria. On direct examination by the city,

the trooper testified that he also detected an odor of alcoholic beverage coming from

inside the vehicle.

{¶7} Trooper Kay testified that based on the “totality of the circumstances” —

which he identified as (1) the reason for the traffic stop, (2) an odor of alcohol coming

from inside the vehicle, (3) Hyppolite’s slow, slurred speech and blood shot, glassy eyes,

and (4) the Florida driver’s license — he ordered Hyppolite out of the vehicle to perform

field sobriety tests. He performed the following tests: (1) the horizontal gaze

nystagmus (“HGN”) test/vertical gaze nystagmus (“VGN”) test, (2) the walk and turn test,

(3) the one leg stand test, and (4) the alphabet test. The trooper testified that he

performed the tests in accordance with the National Highway Safety Administration’s

(“NHTSA”) standards, on which he receives yearly training. He also testified that he

has had “more in-depth” training on standardized field sobriety tests through advanced

roadside impaired driving training he has completed.

{¶8} The trooper found that Hyppolite did not exhibit any of the clues of

intoxication of the VGN test, but exhibited all six of the possible clues of intoxication of

the HGN test. After those two tests, he asked Hyppolite if she had been drinking, to

which Hyppolite responded that she had had three shots of “Crown Royal.” Trooper

Kay then administered the other tests.

{¶9} In regard to the walk and turn test, the trooper testified that Hyppolite

exhibited four of the eight possible clues of intoxication, and on the one leg stand test, she
exhibited three of the four possible clues of intoxication. In regard to the alphabet test,

Trooper Kay asked Hyppolite to recite the alphabet starting with D through Q.

Hyppolite responded by reciting the alphabet, E through Z. She tried again, and again

went to Z. She attempted to try a third time, but Trooper Kay terminated the test and

arrested her. Hyppolite was transported to a State Highway Patrol post, and asked to

submit to a breath test, which she agreed to. She did not pass the test and was charged

with OVI.

{¶10} The defense declined to cross-examine Trooper Kay. Rather, after the city

rested its case, the defense called the trooper in its case as if on cross-examination.

According to Hyppolite, this was done as a “tactical strategy to get the [city] to rest its

case without introducing the NHTSA manual into evidence or asking the Court to take

judicial notice of the manual.”

{¶11} The trooper testified that when he conducts field sobriety tests he does so

from memory, based on his training and experience; he does not have the NHTSA manual

or a “cheat sheet” with him.

{¶12} Trooper Kay admitted that when Hyppolite’s car passed him he did not

know what speed it was traveling and he did not witness any other erratic driving on

Hyppolite’s part. Further, the trooper admitted that his police report indicated that he

smelled the odor of alcohol after he ordered Hyppolite out of the vehicle.

{¶13} After the suppression hearing, the trial court denied Hyppolite’s motion to

suppress. Hyppolite requested findings of fact and conclusions of law, which the court
issued. Hyppolite pleaded no contest to the charges against her, and the trial court found

her guilty. The court sentenced her; the sentence has been stayed pending this appeal.

Assignments of Error

{¶14} Hyppolite raises the following assignments of error for our review:

I. The trial court’s findings of fact were against the manifest weight of the
evidence.

II. The trial court errored [sic] in its determination that the officer had
reasonable suspicion to expand the scope of the traffic stop.

III. The trial court errored [sic] in its determination to limit appellant’s
cross-examination of the arresting officer as to substantial compliance with
the NHTSA manual.

IV. The trial court errored [sic] in its determination that the administration
of the field sobriety tests substantially complied with the NHTSA manual
standards.

V. The trial court erred in its determination that the arresting officer had
probable cause to arrest the appellant for OVI.

Law and Analysis

Standard of Review

{¶15} This court reviews a decision on a suppression motion under a mixed

standard of review. “In a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and evaluate witness

credibility.” State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994).

The reviewing court must accept the trial court’s findings of fact in ruling on a motion to

suppress if the findings are supported by competent, credible evidence. State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. With respect to the
trial court’s conclusion of law, the reviewing court applies a de novo standard of review

and decides whether the facts satisfy the applicable legal standard. Id., citing State v.

McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

Trial Court’s Finding Relative to Initial Encounter

{¶16} In her first assignment of error, Hyppolite contends that the trial court’s

findings relative to Trooper Kay’s initial encounter with her were not supported by

competent, credible evidence and were “contrary to the clarifications and concessions

made by Trooper Kay on cross-examination.” Specifically, Hyppolite cites Trooper

Kay’s testimony in the defense’s case that his police report did not indicate that he

smelled an odor of alcohol prior to ordering Hyppolite out of her vehicle. She contrasts

that testimony with the trial court’s finding that the trooper detected the odor of alcohol

prior to ordering Hyppolite out of her vehicle. Trooper Kay did testify on

cross-examination that his report did not state that he smelled an odor of alcohol prior to

ordering Hyppolite out of her vehicle. But he also testified that just because something is

not in his report does not mean that it did not happen. He explained that his police

report is not a “complete regurgitation of the traffic stop. It doesn’t have every detail in

there.” Trooper Kay further testified that he remembered this traffic stop. Moreover,

he never testified that he was mistaken about smelling the odor of alcohol coming from

Hyppolite’s car prior to ordering her out of it.

{¶17} As mentioned, the trial court “assumes the role of trier of fact and is in the

best position to resolve questions of fact and evaluate witness credibility.” Curry, 95
Ohio App.3d 93 at 96, 641 N.E.2d 1172 (8th Dist.1994). Based on Trooper Kay’s

testimony, there is nothing incredible about the trial court’s finding that the trooper

detected an odor of alcohol coming from Hyppolite’s vehicle prior to ordering her out of

the vehicle — the finding was supported by some competent, credible evidence.

{¶18} Hyppolite also challenges the trial court’s finding that “[u]pon further

investigation, the defendant stated that she had consumed tree shots of Crown Royal at [a]

bar and that she was headed to her home in Elyria.” Hyppolite again claims that the trial

court found that the trooper learned this information prior to ordering Hyppolite out of her

vehicle, but the trooper’s testimony was that he learned it after Hyppolite was out of the

vehicle.

{¶19} On this record, and for the purpose of resolving this assignment of error, we

find the distinction as to when the trooper learned that Hyppolite had been drinking

inconsequential. The trial court did not rely on Hyppolite’s admission that she had been

drinking as a ground to justify the expanded scope and duration of the stop.

{¶20} Rather, as to the extension of the scope and duration of the stop, the court

found that upon his initial contact with Hyppolite, the trooper “detected an odor of

alcohol coming from the vehicle. He observed the defendant to have glassy bloodshot

eyes and slurred speech.” The court went on to further find that “[w]hen the defendant

produced a Florida driver’s license, Kay requested the defendant to exit the vehicle and

she complied. Specifically, Kay testified that he decided to conduct further investigation

into whether or not the defendant was impaired based upon all of these things together.”
 {¶21} Nonetheless, the court’s finding relative to Hyppolite’s admission that she

had been drinking was supported by competent, credible evidence: the trooper testified

that when he asked Hyppolite if she had been drinking, she stated that she had “three

shots of Crown Royal.” But, in light of the above, whether the court found that the

trooper learned of this before or after ordering Hyppolite out of the car is immaterial.

{¶22} The first assignment of error is overruled.

Reasonable Suspicion to Expand Scope of Stop

{¶23} In her second assignment of error, Hyppolite contends that the trial court

erred in finding that Officer Kay had reasonable suspicion to expand the traffic stop.

According to Hyppolite, “[b]ased on the [police] report and testimony provided by

Trooper Kay, he only observed two clues of intoxication before asking appellant to exit

her vehicle for field sobriety tests, which, based on the totality of the circumstances, was

insufficient to justify a prolonged and expanded investigation.” We disagree.

{¶24} It is well established that the scope and duration of a routine traffic stop

“must be carefully tailored to its underlying justification * * * and last no longer than is

necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500,

103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); see also State v. Gonyou, 108 Ohio App.3d 369,

372, 670 N.E.2d 1040 (6th Dist.1995). The rule set forth in Royer is designed to prevent

law enforcement officers from conducting “fishing expeditions” for evidence of a crime.

Sagamore Hills v. Eller, 9th Dist. Summit No. 18495, 1997 Ohio App. LEXIS 4883,*12

(Nov. 5, 1997); see also Fairborn v. Orrick, 49 Ohio App.3d 94, 95, 550 N.E.2d 488 (2d
Dist.1988) (stating that the “mere fact that a police officer has an articulable and

reasonable suspicion sufficient to stop a motor vehicle does not give that police officer

‘open season’ to investigate matters not reasonably within the scope of his suspicion”).

{¶25} Thus, generally, “[w]hen a law enforcement officer stops a vehicle for a

traffic violation, the officer may detain the motorist for a period of time sufficient to issue

the motorist a citation and to perform routine procedures such as a computer check on the

motorist’s driver’s license, registration and vehicle plates.” State v. Aguirre, 4th Dist.

Gallia No. 03CA5, 2003-Ohio-4909, ¶ 36; citing State v. Carlson, 102 Ohio App.3d 585,

598, 657 N.E.2d 591 (9th Dist.1995); see also Rodriguez v. United States, 575 U.S.

, 135 S.Ct. 1609, 1615, 191 L.Ed.2d 492 (2015).

{¶26} However, “[a]n officer may expand the scope of the stop and may

continue to detain the vehicle without running afoul of the Fourth Amendment if the

officer discovers further facts which give rise to a reasonable suspicion that additional

criminal activity is afoot.” State v. Rose, 4th Dist. Highland No. 06CA5,

2006-Ohio-5292, ¶ 17, citing State v. Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d

762 (1997). As the Robinette court explained,

[w]hen a police officer’s objective justification to continue detention of a
person * * * is not related to the purpose of the original stop, and when that
continued detention is not based on any articulable facts giving rise to a
suspicion of some illegal activity justifying an extension of the detention,
the continued detention to conduct a search constitutes an illegal seizure.

Id. at paragraph one of the syllabus.

{¶27} Conversely, “if a law enforcement officer, during a valid investigative stop,
ascertains ‘reasonably articulable facts giving rise to a suspicion of criminal activity, the

officer may then further detain and implement a more in-depth investigation of the

individual.’” Rose at ¶ 17, quoting Robinette at 241.

{¶28} “In determining whether a detention is reasonable, the court must look at the

totality of the circumstances.” State v. Matteucci, 11th Dist. Lake No. 2001-L-205,

2003-Ohio-702, ¶ 30. The totality of the circumstances approach “allows officers to

draw on their own experience and specialized training to make inferences from and

deductions about the cumulative information available to them that might well elude an

untrained person.” State v. Ulmer, 4th Dist. Scioto No. 09CA3283, 2010-Ohio-695, ¶

23. Thus, when an appellate court reviews a police officer’s reasonable suspicion

determination, “the court must give due weight to factual inferences drawn by resident

judges and local law enforcement officers.” Id.

{¶29} In Parma Hts. v. Dedejczyk, 8th Dist. Cuyahoga No. 97664,

2012-Ohio-3458, this court held that an officer may request a motorist to perform field

sobriety tests after a traffic stop for a minor traffic violation where the officer has

articulable facts that give rise to reasonable suspicion that the motorist is intoxicated. Id.

at ¶ 29.

{¶30} Trooper Kay testified as to the reasons he expanded the scope and duration

of the stop. He specifically testified that it was based on the reason for the initial traffic

stop, that is, Hyppolite’s failure to exercise due care when passing his police cruiser; an

odor of alcohol coming from inside the vehicle; Hyppolite’s slow, slurred speech and
glassy bloodshot eyes; and her presentation of a Florida driver’s license.

{¶31} On this record, the trooper had articulable facts that gave rise to reasonable

suspicion that Hyppolite may have been intoxicated and, therefore, the extension of the

scope and duration of the stop was proper. The second assignment of error is overruled.

Cross-Examination of Trooper Kay

{¶32} For her third assigned error, Hyppolite contends that the trial court abused

its discretion by limiting her right to cross-examine Trooper Kay on the NHTSA manual’s

standards for the administration of field sobriety tests. Hyppolite also contends that the

trial court abused its discretion by limiting her cross-examination as to the instructions he

gave her while administering the field sobriety tests.

{¶33} The Sixth Amendment’s right to confront witnesses guarantees a criminal

defendant the right to cross-examine witnesses. Columbus v. Miller, 10th Dist. Franklin

No. 89AP-111, 1989 Ohio App. LEXIS 3541, *18 (Sept. 12, 1989). A criminal

defendant’s right to confront and cross-examine a witness is not unlimited, however.

State v. Albanese, 11th Dist. Portage No. 2005-P-0054, 2006-Ohio-4819, ¶ 56, citing

Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

{¶34} The extent of cross-examination with respect to an appropriate subject of

inquiry is within the sound discretion of the trial court. State v. Green, 66 Ohio St.3d

141, 147, 609 N.E.2d 1253 (1993). A trial court has considerable discretion to impose

reasonable limits on such cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant. State v. Treesh, 90 Ohio St.3d 460, 480,

739 N.E.2d 749 (2001).

{¶35} On direct examination in the city’s case, Trooper Kay testified about his

training for the administration of field sobriety tests in accordance with the NHTSA

standards. He testified that since his original training as to the standards, he has had

yearly training, including “advanced roadside impaired driving training,” which he

explained “goes into more depth on standardized field sobriety tests.” The trooper then

testified as to his administration of the standardized tests on Hyppolite and how she

performed. As mentioned, no NHTSA manual was introduced into evidence.

{¶36} As further mentioned, the defense did not cross-examine Trooper Kay

during the city’s case; rather, it called the trooper “as if on cross-examination” in its case.

During that questioning, Trooper Kay testified that he had originally been trained on an

earlier edition on the NHTSA manual, “probably” the 2006 edition. The defense then

attempted to question him on portions of the 2006 manual. The city objected, “because

the new standard is [set forth in the] 2013 [manual and] that’s what [Trooper Kay] used in

this stop.” The court responded, “well, the fact of the matter is, just for the record, this

is 2015. The officer testified that he was trained on [the] most recent manual. I’m not

sure what the relevancy of the 2006 manual is at this point. Can you tell me why we

need to go over that?”

{¶37} The defense responded that it wanted to question the trooper using the 2006

manual because that was the one he (the trooper) had been trained on. The court
responded that the problem with that was Trooper Kay had had subsequent training every

year since 2006, and asked counsel “are you saying you don’t have a copy of the 2013

manual because you’re using the 2006 manual?” Counsel responded, “Yeah. That’s it

exactly.”

{¶38} The court then instructed counsel as follows: “Let’s just do that then.

Just clarify that you’re reading from the 2006 manual and that * * * you’re understanding

is that it’s the same as the most recent manual, if that’s true.” Counsel agreed, stating,

“Okay. Yeah. I won’t be long on this point.”

{¶39} Counsel then handed Trooper Kay a page of the 2006 manual and asked him

if he recognized it and was familiar with it. The trooper responded, “ I mean, I — I may

have seen this before. I don’t really recall. It doesn’t really have too much in it.” The

city objected, contending that the manual is an “enormous book. He’s showing him * *

* an isolated page.” The court sustained the objection and told defense counsel that if

there was a point that he wanted to make relative to the NHTSA manual, he could ask the

city to stipulate to what the manual says, “but we’re not going to sit here while the officer

goes through the NHTSA manual page by page.” Defense counsel then went on to

question the trooper regarding the NHTSA standards generally, without specific reference

to the manual.

{¶40} Upon review, the trial court did not abuse its discretion by not permitting the

defense to question Trooper Kay on single page copies of an outdated NHTSA manual.

The record demonstrates that the defense was still able to effectively cross-examine
Trooper Kay about the NHTSA requirements, and Hyppolite’s Sixth Amendment rights

were not violated.

{¶41} We likewise find no abuse of discretion in the trial court’s limitation of

Hyppolite’s cross-examination of the trooper with regard to the instructions he gave her

while administering the field sobriety tests. In this instance, defense counsel sought to

play the instructions as recorded on the dashboard camera video “one by one” and ask

Trooper Kay what he said. The trial court asked counsel for his reasoning for seeking to

do this, given that the video had already been played and the trooper had already testified

on direct examination about the instructions given in light of the NHTSA standards.

{¶42} In response, counsel told the court that the instructions Trooper Kay had

given did not match the instructions in the 2006 NHTSA manual. The city interjected

that there was no NHTSA manual in evidence, and therefore defense counsel was

“testifying” as to what the manual stated. The court stated that it would not limit

counsel’s questioning about his administration of the standardized tests to Hyppolite, but

that counsel’s attempt to compare what the trooper did vis-a-vis the NHTSA manual,

which was not in evidence, was improper. The court further told counsel that playing

the video was cumulative, because it had already been played by the city during its case

and the court intended to watch it again during its deliberations. Defense counsel

conceded, agreeing that the video “speaks for itself.”

{¶43} There was no abuse of discretion on this record. The court was within its

discretion to limit counsel’s questioning to how the trooper administered the tests,
without specific references to the NHTSA manual, which was not in evidence. The

court was likewise within its discretion to limit repetitive evidence, that is, the re-playing

of the entire dashboard camera video; even with the limitation, counsel was still able to

effectively cross-examine Trooper Kay.

{¶44} For example, the defense was able to elicit testimony from the trooper that,

according to the defense’s calculations, he administered the HGN test to Hyppolite in

approximately half of the time recommended in the NHTSA manual. The defense also

elicited testimony from Trooper Kay that the alphabet test is not a standardized test, and it

is generally done prior to ordering a suspect out of a car rather than after, as he had done

in this case.

{¶45} In light of the above, the third assignment of error is overruled.

Substantial Compliance with NHTSA Standards

{¶46} For her fourth assignment of error, Hyppolite contends that the trial court

erred in finding that Trooper Kay substantially complied with the NHTSA standards.

{¶47} Under R.C. 4511.19(D)(4)(b), an officer may testify “concerning the results

of the field sobriety test” if the officer administered the test in “substantial compliance”

with the testing standards. Thus, in order for the results of the field sobriety tests to be

admissible, the city must demonstrate by clear and convincing evidence that the officer

performing the testing substantially complied with accepted testing standards. Middleburg

Hts. v. Gettings, 8th Dist. Cuyahoga No. 99556, 2013-Ohio-3536, ¶ 12; Dedejczyk, 8th

Dist. Cuyahoga No. 97664, 2012-Ohio-3458 at ¶ 42. The city 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, ¶ 28; State v. Reddington, 9th Dist. Medina No. 14CA0064-M,

2015-Ohio-2890, ¶ 19.

{¶48} Substantial compliance is not defined in R.C. 4511.19(D)(4)(b); it is

“obviously less than strict compliance, but how much less? Since the term is not

legislatively defined, courts are apparently left with some discretion to determine the

substantiality of the compliance.” State v. Perry, 129 Ohio Misc. 61, 2004-Ohio-7332,

822 N.E.2d 862, ¶ 45. Because the statute does not define substantial compliance, this

court makes a determination of whether the facts satisfy the standard on a case-by-case

basis. Brookpark v. Key, 8th Dist. Cuyahoga No. 89612, 2008-Ohio-1811,¶ 52, citing

State v. Mapes, 6th Dist. Fulton No. F-04-031, 2005-Ohio-3359.

{¶49} Upon review, we find that Trooper Kay provided competent testimony as to

what the NHTSA standards were. At the start of the suppression hearing, the defense

stipulated to the trooper’s training and experience. Trooper Kay elaborated on his

training, testifying that he takes yearly update classes through the Ohio State Highway

Patrol, and the classes included advanced roadside impaired driver training that goes in

depth about field sobriety testing.

{¶50} Trooper Kay testified that he was familiar with the NHTSA standards, and

he testified about them for each of the tests he administered. We are not persuaded by

Hyppolite’s contention that the trooper did not substantially comply with the standards
because he (1) administered the HGN test in less than the recommended time, (2) did not

use the exact language from the NHTSA manual in instructing her, or (3) instructed her

slightly out of order.

{¶51} In regard to the HGN test, although the trooper admitted that, according to

the defense’s calculations, he may have conducted the test in a shorter period of time than

suggested in the manual, he explained that, for officer safety, he does not stand on the

side of the road/highway with the manual, a “cheat sheet,” or a stop watch. Rather, he

conducts the test as he had been trained to do, first inquiring of the driver as to whether he

or she has any eye issues or wears glasses or contact lenses. He then has the driver face

forward and look at a stimulus so that he can establish “resting nystagmus.” Trooper

Kay further testified as to the NHTSA standards for each phase of the testing and

indicated that Hyppolite exhibited all six of the possible clues.

{¶52} The trooper also testified as to the NHTSA standards for the walk and turn

test. Although Hyppolite contends that Trooper Kay failed to instruct her to “place her

left foot on the line,” the trooper can be heard on the dashboard camera video instructing

her to “place her right foot in front of left foot touching heel to toe.” Hyppolite further

contends that Trooper Kay instructed her out of order and failed to ask if she understood

the instructions. A review of the dashboard camera video reveals that he did ask her if

she understood, and requiring that he instruct her exactly sequentially as set forth in the

manual would be requiring strict, rather than substantial, compliance.

{¶53} In regard to the one leg stand test, Trooper Kay testified as to the standard
way the test is administered, the clues that he is trained to observe, and the clues that

Hyppolite presented. Hyppolite contends, however, that the trooper failed to tell her to

look at her right foot and failed to ask her whether she understood the directions. A

review of the dashboard camera video reveals substantial compliance: Trooper Kay

instructed Hyppolite to “raise her foot, keep it flat and parallel, and look at it the entire

time,” and he did ask Hyppolite whether she understood the directions.

{¶54} In sum, Hyppolite stipulated to Trooper Kay’s training and experience. He

testified about the standards for each of the NHTSA tests he performed and how

Hyppolite performed on these tests. Although the NHTSA manual was not entered into

evidence, that is but one way of determining what the standards are — another way is

by presenting competent testimony about them. On this record, we find that Trooper

Kay’s testimony about the standards was competent and established that he substantially

complied with them.

{¶55} The fourth assignment of error is overruled.

Probable Cause to Arrest

{¶56} For her final assigned error, Hyppolite contends that the trial court

improperly found that Trooper Kay had probable cause to arrest her for OVI. We

disagree.

{¶57} Probable cause to arrest exists when an officer is aware of facts that would

lead a reasonable person to believe that the suspect has committed or is committing a

crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). In the
OVI context, courts must determine whether, “at the moment of the 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, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000),

superseded by statute on other grounds.

{¶58} Upon review, there were sufficient facts that would have caused a prudent

person to believe that Hyppolite was driving under the influence of alcohol. The trooper

testified that in his interaction with Hyppolite to investigate the traffic violation, he

observed that her eyes were bloodshot and glassy, and her speech was slow and slurred.

He also testified that he smelled an odor of alcoholic beverage coming from inside the

vehicle. Further, upon his initial encounter with Hyppolite, she was looking down,

while her passenger was doing all the talking.

{¶59} When asked if she had been drinking, Hyppolite stated that she had had

three shots of Crown Royal. Hyppolite’s impairment was indicated on all three of the

standardized field sobriety tests Trooper Kay administered, as well as on the

nonstandardized alphabet test. On this record, Trooper Kay had probable cause to arrest

Hyppolite.

{¶60} The fifth assignment of error is overruled.

{¶61} Judgment affirmed; case remanded to the trial court for execution of

sentence.

It is ordered that appellee recover of appellant 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 Cleveland

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
KEYWORDS:
#103955

Motion to suppress; manifest weight; traffic stop; field sobriety tests; probable cause;
R.C. 4511.19(D)(4)(b)/officer testimony on field sobriety tests; substantial compliance.
The officer smelled an odor of alcohol coming from appellant’s vehicle thus furthering
the officer’s scope of the stop. The trial court was in the best position to resolve
questions of fact and evaluate witness credibility. The trial court’s findings were not
against the manifest weight of the evidence. The officer had articulable facts that gave
rise to an extension of the scope and duration of the stop. The trial court did not err in
its determination that the officer had reasonable suspicion to expand the scope of the
traffic stop. The trial court was within its discretion in limiting defense counsel’s
questioning of the officer as to how he administered the NHTSA field sobriety tests.
The officer’s testimony about the NHTSA standards was competent and he substantially
complied with them. There was no abuse of discretion committed by the trial court.
The officer observed that appellant’s eyes were bloodshot and glassy; her speech was
slow and slurred; the officer smelled the odor of alcohol coming from the vehicle; and
appellant showed impairment on all three of the standardized field sobriety tests.
Sufficient facts existed to give the officer probable cause to arrest.