Willowick v. Osborne , 2019 Ohio 3235 ( 2019 )

[Cite as Willowick v. Osborne, 2019-Ohio-3235.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
CITY OF WILLOWICK,
:
Plaintiff-Appellee,
: CASE NOS. 2018-L-124
- vs - 2018-L-125
: 2018-L-126
CHRISTOPHER JOHN OSBORNE,
:
Defendant-Appellant.
Criminal Appeals from the Willoughby Municipal Court, Case Nos. 2018 TRC 00158 A,
2018 TRC 00158 B, and 2018 TRC 00158 C.
Judgment: Affirmed.
Donald J. Ezzone, Parkhill Professional Building, 35104 Euclid Avenue, Willoughby, OH
44094 (For Plaintiff-Appellee).
Patrick D. Quinn, Quinn Legal Associates, 2802 SOM Center Road, Suite 102,
Willoughby, OH 44094, and Joseph Hada, 1392 SOM Center Road, Mayfield Heights,
OH 44124 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Christopher John Osborne (“Mr. Osborne”), appeals the
judgment of the Willoughby Municipal Court denying his motion to suppress following his
pleas of no contest to and convictions for speeding and two counts of operating a vehicle
under the influence of alcohol (“OVI”).
{¶2} Mr. Osborne argues (1) the police officer did not have reasonable suspicion
to justify field sobriety tests, (2) the City of Willowick (the “city”) did not establish that the
officer administered field sobriety tests in substantial compliance with National Highway
Traffic Safety Administration (“NHTSA”) standards, (3) the officer did not have probable
cause to arrest Mr. Osborne for OVI, and (4) the city did not demonstrate that the officer
administered a breath test in substantial compliance with the Ohio Revised Code and the
Ohio Administrative Code.
{¶3} After a careful review of the record and pertinent law, we find (1) the police
officer’s decision to conduct field sobriety tests was justified by specific, articulable facts,
(2) any possible error in finding substantial compliance with NHTSA standards was
harmless, (3) the officer had probable cause to arrest Mr. Osborne for OVI, (4) Mr.
Osborne’s motion to suppress did not provide the city with adequate notice of the issues
in dispute in relation to the breath test; and (5) with respect to Mr. Osborne’s specific
challenges to the breath test, the city demonstrated substantial compliance.
{¶4} For the reasons that follow, we affirm the judgment of the Willoughby
Municipal Court.
Substantive and Procedural History
{¶5} On January 11, 2018 at approximately 1:27 a.m., Officer Jacob Cook
(“Officer Cook”) of the Willowick Police Department observed Mr. Osborne’s vehicle
traveling westbound on State Route 2 in the City of Willowick, Ohio, at a rate of speed of
88 m.p.h. in a 60 m.p.h. zone. Officer Cook initiated a traffic stop for the speeding
violation, and Mr. Osborne pulled over to the left side of the roadway rather than the right
side.
{¶6} After approaching the driver’s side window of the vehicle, Officer Cook
detected the odor of alcoholic beverage and slightly slurred speech. Mr. Osborne
admitted he had been at the Handle Bar in the City of Eastlake where he drank at least
2
three Long Island Iced Teas. At some point, Officer Cook also noticed that Mr. Osborne’s
eyes were bloodshot.
{¶7} Officer Cook instructed Mr. Osborne to exit the vehicle so he could conduct
field sobriety tests. Officer Cook proceeded to administer the horizontal gaze nystagmus
(“HGN”) test, where he observed all six clues of impairment. He next administered the
one-leg stand, where he observed two clues of impairment, although this did not
constitute a failed test. Finally, he administered the walk-and-turn, where he observed
six clues of impairment. Officer Cook placed Mr. Osborne under arrest for OVI and took
him to the police station.
{¶8} At the police station, Mr. Osborne provided two breath samples on the
Intoxilyzer 8000 following the expiration of a 20-minute observation period. During the
collection of both samples, Officer Cook observed that Mr. Osborne’s breath alcohol
concentration (“BAC”) was measuring above 0.190.
{¶9} The printer attached to the Intoxilyzer failed to print the test results
immediately following the test. Therefore, Officer Cook reported on the applicable state
reporting form (BMV-2255) that Mr. Osborne’s BAC test result was 0.190. After Mr.
Osborne posted bond and was released, another officer was able to retrieve a printout of
the test results from the Intoxilyzer’s internal printer, which showed a BAC of 0.201.
Officer Cook crossed out “.190” on the BMV-2255, wrote “.201,” and initialed it.
{¶10} Mr. Osborne was charged with OVI in violation of R.C. 4511.19(A)(1)(a),
OVI in violation of R.C. 4511.19(A)(1)(h), and speeding in violation of section 333.03 of
the Codified Ordinances of the City of Willowick. Mr. Osborne initially pleaded not guilty.
{¶11} After several continuances and a change of counsel, Mr. Osborne filed a
motion to suppress, alleging that the police did not have reasonable suspicion to stop his
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vehicle, unjustifiably expanded the scope of the stop to require field sobriety tests, did not
conduct the field sobriety tests in compliance with the NHTSA rules and regulations, did
not administer the breath test in compliance with R.C. 4511.19 and Ohio Adm.Code
Chapter 3701, and that the breath test was inadmissible under Evid.R. 702.
{¶12} At the hearing on the motion, Mr. Osborne waived his challenge to the
officer’s initial stop of his vehicle. Following the hearing, the trial court issued a judgment
entry denying Mr. Osborne’s motion to suppress. The trial court found that the initial traffic
stop was justified based on the officer’s observation of the speed violation and that the
officer possessed reasonable and articulable suspicion to continue the detention of Mr.
Osborne and require field sobriety testing based on the odor of alcohol, slurred speech,
the time of night, excessive speed, Mr. Osborne’s admission to consuming alcoholic
beverages prior to driving, and the officer’s previous experience in dealing with drunk
drivers.
{¶13} The trial court also found that the city established substantial compliance
regarding the field sobriety tests, and they were admissible at trial as to the officer’s
observations. The trial court noted that the tests were not conclusive as evidence of
impairment, since the one-leg stand was not a failed test.
{¶14} The trial court further found that probable cause existed for Mr. Osborne’s
arrest based on his excessive speeding, the odor of alcohol, admission of drinking
alcoholic beverages, observations during the field sobriety testing, and slurred speech.
With regard to the breath test, the trial court referenced Mr. Osborne’s “boilerplate” motion
to suppress but found that the city had met its burden of substantial compliance.
{¶15} Mr. Osborne subsequently entered pleas of no contest to the three charges.
As part of his sentence, the trial court imposed three days in jail.
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{¶16} Mr. Osborne filed separate appeals for each of his three convictions, which
we consolidated, sua sponte. We also granted Mr. Osborne’s motion to stay execution
of his three-day jail sentence during the pendency of his appeal.
{¶17} Mr. Osborne raises the following four assignments of error:
{¶18} “[1.] The trial court erred in finding that reasonable articulable suspicion
existed for the officer to expand the scope of the investigation.
{¶19} “[2.] The trial court erred in finding that the city proved that the officer
administered the standardized field sobriety tests in substantial compliance with the
NHTSA standards in effect at the time the tests were given pursuant to R.C.
4511.19(D)(4)(b).
{¶20} “[3.] The trial court erred in finding that the city proved that the officer had
probable cause to arrest the defendant in light of the admiisble [sic] evidence.
{¶21} “[4.] The trial court erred in finding that the city proved the city showed
substantial compliance with the Ohio Revised Code and the Ohio Administrative Code for
the breath test to be admissible at trial.”
Jurisdiction
{¶22} Although Mr. Osborne pleaded no contest to the charges against him, a
plea of no contest does not waive a defendant’s appeal from an adverse ruling on a
motion to suppress. Crim.R. 12(I).
Standard of Review
{¶23} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶8. 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. Id.,
5
citing State v. Mills, 62 Ohio St. 3d 357, 366 (1992). Consequently, an appellate court
must accept the trial court’s findings of fact if they are supported by competent, credible
evidence. Id., citing State v. Fanning, 1 Ohio St. 3d 19, 20 (1982). The appellate court
must then independently determine, without deference to the conclusions of the trial court,
whether the facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124
Ohio App. 3d 706, 707 (4th Dist.1997).
Reasonable Suspicion
{¶24} In his first assignment of error, Mr. Osborne claims Officer Cook was not
justified in requiring him to perform field sobriety tests. We disagree.
{¶25} The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution guarantee the right to be free from unreasonable
searches and seizures. (Citation omitted.) State v. Mays, 119 Ohio St. 3d 406, 2008-
Ohio-4539, ¶7. When a police officer observes a traffic violation, he or she is justified in
initiating a limited stop for the purpose of issuing a citation. State v. Brickman, 11th Dist.
Portage No. 2000-P-0058, 2001 WL 635954, *2 (June 8, 2001). However, a request that
a driver perform field sobriety tests constitutes a greater invasion of liberty than the initial
stop, and “must be separately justified by specific, articulable facts showing a reasonable
basis for the request.” State v. Evans, 127 Ohio App. 3d 56, 62 (11th Dist.1998), citing
State v. Yemma, 11th Dist. Portage No. 95-P-0156, 1996 WL 495076, *3 (Aug. 9, 1996).
Whether a request to perform field sobriety tests was reasonable is to be considered
under the totality of the circumstances. Id. at 63.
{¶26} Mr. Osborne does not contest the propriety of the initial stop. Rather, he
claims that once stopped, Officer Cook improperly detained him in order to conduct field
sobriety tests.
6
{¶27} In Evans, we set forth a non-exclusive list of factors to be considered when
determining whether a police officer had a reasonable suspicion of intoxication justifying
the administration of field sobriety tests. That list, on which no one factor is dispositive,
consists of the following:
{¶28} “(1) the time and day of the stop (Friday or Saturday night as opposed to,
e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling
alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of
coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable
report that the driver may be intoxicated; (5) the condition of the suspect’s eyes
(bloodshot, glassy, glazed, etc.); (6) impairments of the suspect's ability to speak (slurred
speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of
the car, or more significantly, on the suspect’s person or breath; (8) the intensity of that
odor, as described by the officer (‘very strong,’ ‘strong,’ ‘moderate,’ ‘slight,’ etc.); (9) the
suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect
after the stop that might indicate a lack of coordination (dropping keys, falling over,
fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the
number of drinks had, and the amount of time in which they were consumed, if given.” Id.
at fn. 2.
{¶29} A reviewing court may consider all these factors, together with the officer’s
previous experience in dealing with impaired drivers, in determining whether the officer
acted reasonably. Id. Courts generally defer to the law enforcement officer’s judgment
in deciding to conduct field sobriety tests when the officer’s decision was based on a
number of factors. State v. Trimble, 11th Dist. Portage No. 2010-P-0078, 2011-Ohio-
4473, ¶14, citing Evans at 63.
7
{¶30} Application of the Evans factors to this case indicates that Officer Cook’s
decision to conduct field sobriety tests was justified by specific, articulable facts showing
a reasonable basis for the request. Specifically, the record indicates that seven factors
set forth in Evans were present: (1) the time of the stop (the stop occurred at 1:27 a.m.);
(2) the location of the stop (Mr. Osborne admitted he was coming from the Handle Bar);
(3) an odor of alcohol emanating from suspect’s car or person (Officer Cook noticed an
odor of alcohol while speaking with Mr. Osborne, and Mr. Osborne was the only occupant
of the vehicle); (4) the condition of the suspect’s eyes (Officer Cook reported that Mr.
Osborne’s eyes were bloodshot); (5) impairment of the suspect’s ability to speak (Mr.
Osborne exhibited slightly slurred speech); (6) the suspect’s admission to alcohol
consumption (Mr. Osborne admitted to having at least three Long Island Iced Teas); and
(7) an indicia of erratic driving before the stop (Mr. Osborne was traveling at 88 m.p.h., or
28 m.p.h. over the speed limit. In addition, when Officer Cook activated his lights, Mr.
Osborne pulled over onto the left side of the roadway instead of the right side).
{¶31} “Where a non-investigatory stop is initiated and the odor of alcohol is
combined with glassy or bloodshot eyes and further indicia of intoxication, such as an
admission of having consumed alcohol, reasonable suspicion exists.” (Citations omitted.)
State v. Wiesenbach, 11th Dist. Portage No. 2010-P-0029, 2011-Ohio-402, ¶24.
{¶32} Mr. Osborne cites this court’s decision in Brickman, supra, in support of his
argument that Officer Cook did not have reasonable suspicion. In Brickman, we held that
an officer did not have reasonable suspicion to administer sobriety tests based on a
suspect’s (1) driving 20 miles per hour over the speed limit (55 mph in a 35 mph zone),
(2) smelling “mildly” of alcohol, and (3) admission that he “had a beer.” Id. at *3. However,
we noted that the officer’s decision was not “based on a number of factors set forth in
8
Evans.” We further noted that the officer’s report did not state that the suspect had “red,
glossy eyes” or “had driven aggressively or erratically.” Id.
{¶33} Mr. Osborne also cites a line of cases originating from the Second District.
In State v. Spillers, 2d Dist. Darke No. 1504, 2000 WL 299550 (Mar. 24, 2000), the
Second District held an officer did not have reasonable suspicion to administer sobriety
tests based on (1) three or four “de minimis” lane violations, followed by an interval in
which the suspect drove home with no traffic violations or remarkable driving, (2) a slight
odor of alcohol on the suspect, which was possibly beer, and (3) the suspect’s admission
to consuming “a couple” of beers. Id. at *3.
{¶34} In State v. Dixon, 2d Dist. Greene No. 2000 CA 30, 2000 WL 1760664 (Dec.
1, 2000), the Second District, citing Spillers, held an officer did not have reasonable
suspicion to administer sobriety tests based on (1) the time of night (2:20 a.m.), (2) the
suspect’s glassy, bloodshot eyes, (3) an odor of alcohol on the suspect’s person, and (3)
the suspect’s admission of having consumed one or two beers. Id. at *2. The court noted
that the officer did not observe any erratic driving prior to administering field sobriety tests.
Id.
{¶35} In State v. Swartz, 2d Dist. Miami No. 2008 CA 31, 2009-Ohio-902, the
Second District, citing Spillers and Dixon, held an officer did not have reasonable
suspicion to administer sobriety tests based on (1) a de minimis traffic violation (failure to
signal), (2) the suspect’s glassy, bloodshot eyes, and (2) an unspecified odor of alcohol.
Id. at ¶16. The court noted that the officer did not observe any erratic driving prior to
administering field sobriety tests. Id.
{¶36} Similarly, in Whitehouse v. Stricklin, 6th Dist. Lucas No. L-10-1277, 2012-
Ohio-1877, the Sixth District, citing Spillers and Dixon, held a state trooper did not have
9
reasonable suspicion to administer sobriety tests based on (1) a de minimis traffic
violation (faulty headlight), (2) the suspect’s red glassy eyes, and (3) a slight odor of
alcohol. Id. at ¶15. The court noted that the trooper did not witness any erratic driving or
notice any signs of intoxication. Id.
{¶37} In State v. Reed, 7th Dist. Belmont No. 05 BE 31, 2006-Ohio-7075, the
Seventh District, citing Dixon and Spillers, held an officer did not have reasonable
suspicion to administer sobriety tests based on (1) a slight smell of alcohol on the suspect,
(2) the suspect’s red, glassy eyes, and (3) the suspect’s admission of drinking two beers.
Id. at ¶12. The court noted that the officer did not witness a moving violation or erratic
driving, and the suspect’s speech was not impaired. Id.
{¶38} Finally, in State v. Derov, 7th Dist. Mahoning No. 07 MA 71, 2009-Ohio-
5513, the Seventh District, relying on Dixon and Reed, held a state trooper did not have
reasonable suspicion to administer sobriety tests based on (1) the time of night, (2) the
suspect’s red glassy eyes, and (3) a strong smell of alcohol coming from the suspect’s
person. Id. at ¶15. The court noted that the trooper did not witness any erratic driving or
notice any signs of physical impairment. Id.
{¶39} The above cases are factually distinguishable because Mr. Osborne
demonstrated actual signs of impairment. He was not stopped for a de minimis traffic
violation but for driving 88 m.p.h., which was 28 m.p.h. over the speed limit. Mr. Osborne
also stopped his car in an unusual manner after Officer Cook initiated the traffic stop. In
addition to bloodshot eyes and emanating an odor of alcohol, Mr. Osborne exhibited
slurred speech. Further, Mr. Osborne did not claim to have had only a beer or two. He
admitted that he had left a local bar where he recently drank at least three Long Island
Iced Teas, which are mixed drinks comprised of various hard liquors.
10
{¶40} Citing materials issued by the NHTSA, Mr. Osborne argues that speeding
and bloodshot eyes should not be considered as indicators of OVI. However, NHTSA
materials, unlike our binding precedent, do not carry the force of law. State v. Bish, 191
Ohio App. 3d 661, 2010-Ohio-6604, ¶44 (7th Dist.). Further, NHTSA materials do not
conclude that such factors are inconsistent with intoxication, especially when combined
with other indicators. While many circumstances, taken alone, can be consistent with a
completely innocent explanation, taken together, they are sufficient to support requiring
field sobriety tests. See United States v. Frantz, 177 F. Supp. 2d 760, 764 (S.D. Ohio
2001).
{¶41} We conclude that the seven Evans factors stated above, together with the
Officer Cook's previous experience and training regarding impaired drivers, as referenced
in the record, demonstrated a justifiable reasonable suspicion to detain Mr. Osborne after
the initial stop to conduct field sobriety tests.
{¶42} Mr. Osborne’s first assignment of error is without merit.
Field Sobriety Tests
{¶43} In his second assignment of error, Mr. Osborne claims the trial court erred
in finding that the city met its burden of proof that Officer Cook administered the field
sobriety tests in substantial compliance with the NHTSA standards in effect at the time
the tests were given.
{¶44} An officer may testify concerning the results of a field sobriety test
administered in substantial compliance with the testing standards. (Emphasis added.)
State v. Schmitt, 101 Ohio St. 3d 79, 2004-Ohio-37, ¶9. Specifically, R.C.
4511.19(D)(4)(b)(i) provides that an officer may testify concerning the results of a field
sobriety test “if it is shown by clear and convincing evidence that the officer administered
11
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[.]”
{¶45} However, a law enforcement officer may testify at trial regarding
observations made during a defendant's performance of nonscientific standardized field
sobriety tests. (Emphasis added.) Schmitt at ¶15.
{¶46} Mr. Osborne alleges that the state did not produce sufficient evidence of the
applicable NHTSA standards. In addition, he alleges numerous instances of
noncompliance with the NHTSA manual with respect to all three field sobriety tests.
However, we do not need to determine whether Officer Cook’s testimony demonstrated
substantial compliance with the applicable standards.
{¶47} Although the trial court found that the field sobriety tests “were administered
in substantial compliance,” it concluded that the tests were “admissible at trial as to the
officer’s observations.” (Emphasis added.) Significantly, the trial court did not rule that
the test results were admissible at trial.
{¶48} Similarly, in determining that probable cause existed for Mr. Osborne’s
arrest, the trial court only referenced Officer Cook’s observations during the field sobriety
testing, not the test results. As demonstrated below, the totality of the facts and
circumstances, without reference to the field sobriety tests, support a finding of probable
cause to arrest Mr. Osborne for OVI.
{¶49} Therefore, even if the trial court erred in finding substantial compliance,
such error was harmless. State v. Duncan, 11th Dist. Lake No. 2004-L-065, 2005-Ohio-
7061, ¶26 (“the state’s failure to introduce the standard and prove substantial compliance
12
was harmless error. The surrounding circumstances of the stop provide adequate
probable cause for the arrest”); Gates Mills v. Mace, 8th Dist. Cuyahoga No. 84826, 2005-
Ohio-2191, ¶29 (“Although the trial court erroneously failed to suppress the results of the
field sobriety tests, there was ample evidence to support the arrest and conviction, and
such error, in this matter, was harmless”); State v. Matus, 6th Dist. Wood No. WD-06-
072, 2008-Ohio-377, ¶28 (“even without the sobriety tests, there was sufficient evidence
to demonstrate that there was probable cause to stop and to convict appellant of operating
a vehicle while under the influence of an alcoholic beverage. Therefore, the trial court’s
error in denying appellant’s motion to suppress the sobriety tests was harmless”); State
v. Calder, 7th Dist. Monroe No. 08 MO 5, 2009-Ohio-3329, ¶47 (“even if the results of the
walk and turn and one leg stand tests should have been suppressed, there was still
probable cause for arrest and thus, for the administration of the breath test.
Consequently, any error in failing to suppress the results of those tests was harmless”);
State v. Stout, 5th Dist. Licking No. 07-CA-51, 2008-Ohio-2397, ¶84 (although the HGN
test was not in substantial compliance with the manual, “there were other indicia of
intoxication sufficient to establish probable cause for Appellant’s arrest”).
{¶50} Mr. Osborne’s second assignment of error is without merit.
Probable Cause
{¶51} In his third assignment of error, Mr. Osborne claims Officer Cook did not
have probable cause to arrest him for OVI. We disagree.
{¶52} In determining whether the police had probable cause to arrest an individual
for OVI, courts consider whether, at the moment of arrest, the police had sufficient
information, derived from a reasonable trustworthy source of facts and circumstances, to
cause a prudent person to believe that the suspect was driving under the influence. State
13
v. Homan, 89 Ohio St. 3d 421, 427 (2000), citing Beck v. Ohio, 379 U.S. 89, 91 (1964)
and State v. Timson, 38 Ohio St. 2d 122, 127 (1974). In making this determination, courts
examine the “totality of facts and circumstances surrounding the arrest.” Id. The totality
of the circumstances can support a finding of probable cause to arrest, even where no
field sobriety tests were administered or where the test results are excluded. Id.
{¶53} Even excluding the results of the field sobriety tests, the totality of the facts
and circumstances in this case provided ample probable cause for Officer Cook to arrest
Mr. Osborne for OVI. See id. (probable cause found where officer observed erratic
driving, the suspect had red, glassy eyes and breath that smelled of alcohol, and the
suspect admitted to consuming alcoholic beverages); State v. Wojewodka, 11th Dist.
Portage No. 2009-P-0029, 2010-Ohio-973, ¶20 (probable cause found where suspect
had red and watery eyes and slow speech, the officer smelled a strong odor of alcohol,
and the suspect admitted to consuming alcohol); State v. Penix, 11th Dist. Portage No.
2007-P-0086, 2008-Ohio-4050, ¶30 (probable cause found where suspect sped on
snowy, wet road conditions during the early morning hours, had an odor of alcohol
emanating from his vehicle and person, admitted to drinking, and admitted to being at a
bar); State v. Dwyer, 11th Dist. Lake No. 2001-L-075, 2002 WL 255498, *4 (Feb. 22,
2002) (probable cause found where officer observed erratic driving, the suspect had
bloodshot and glassy eyes, breath that smelled of alcohol, and slurred speech, and the
suspect admitted to consuming alcoholic beverages).
{¶54} Mr. Osborne cites the Fifth District’s decision in State v. Kopp, 5th Dist.
Licking No. 16-CA-96, 2017-Ohio-4428, in support of his argument that Officer Cook did
not have probable cause. However, Kopp is clearly distinguishable. The officer in Kopp
pulled the suspect over for an expired license, not for any traffic or moving violations. Id.
14
at ¶3-4. In addition, the officer in Kopp smelled the odor of fresh marijuana and an
alcoholic beverage, but the suspect exhibited no visible signs of impairment. Id. at ¶5,
21.
{¶55} Mr. Osborne’s third assignment of error is without merit.
Breath Test
{¶56} In his fourth assignment of error, Mr. Osborne claims the city did not
demonstrate substantial compliance with the Ohio Revised Code and the Ohio
Administrative Code in relation to the breath test. Therefore, he argues the trial court
erred in finding the breath test to be admissible.
Legal Standards
{¶57} R.C. 4511.19(D)(1), which governs the admissibility of alcohol test results,
provides that a suspect’s breath “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.” Pursuant to this statutory mandate,
the Ohio Director of Health promulgated alcohol testing regulations in Ohio Adm.Code
Chapter 3701-53. See Burnside, supra, at ¶10.
{¶58} The issue of whether “[t]he bodily substance withdrawn [was] analyzed in
accordance with methods approved by the director of health” is not a jury question and is
to be decided by the court prior to trial. State v. Edwards, 107 Ohio St. 3d 169, 2005-
Ohio-6180, ¶20. To make that determination, a trial court may rely on hearsay and other
evidence, even though that evidence would not be admissible at trial. (Citations omitted.)
Id. at ¶14.
{¶59} Courts apply a burden-shifting procedure to govern the admissibility of
alcohol test results. (Citation omitted.) Burnside at ¶24. The defendant must first
15
challenge the validity of the alcohol test by way of a pretrial motion to suppress; failure to
file such a motion waives the requirement on the state to lay a foundation for the
admissibility of the test results. (Citation omitted.) Id.
{¶60} After a defendant challenges the validity of test results in a pretrial motion,
the state has the burden to show that the test was administered in substantial compliance
with the regulations prescribed by the Director of Health. Id. The substantial compliance
standard excuses only errors that are clearly de minimis. Id. at ¶34.
{¶61} Once the state has satisfied this burden and created a presumption of
admissibility, the burden then shifts to the defendant to rebut that presumption by
demonstrating that he was prejudiced by anything less than strict compliance. (Citation
omitted.) Id. at ¶24.
“Shotgun” Motion to Suppress
{¶62} In his motion to suppress, Mr. Osborne alleged generally that the breath
test was not administered in accordance with R.C. 4511.19(D) and Ohio Adm.Code
Chapter 3701-53. He then provided a laundry list of citations to the Ohio Department of
Health (“ODH”) regulations and asserted that the police failed to comply with each of
them.
{¶63} Pursuant to Crim.R. 47 and Xenia v. Wallace, 37 Ohio St. 3d 216 (1988), a
suppression motion must “state with particularity the legal and factual issues to be
resolved,” thereby placing the prosecutor and court “on notice of those issues to be heard
and decided by the court and, by omission, those issues which are otherwise being
waived.” (Emphasis added.) State v. Shindler, 70 Ohio St. 3d 54, 58 (1994).
16
{¶64} Mr. Osborne argues that his motion is sufficiently particular based on the
Supreme Court of Ohio’s decisions in Shindler, supra, and State v. Codeluppi, 139 Ohio
St.3d 165, 2014-Ohio-1574. We disagree.
{¶65} In Shindler, the defendant filed a motion to suppress a breath test that was
a virtual copy of a sample motion contained in a legal handbook. Id. at 57. The court
found that the defendant’s motion was sufficient because in addition to setting forth a list
of legal reasons for suppression, the defendant also set forth “underlying facts.” Id.
{¶66} In Codeluppi, the defendant’s motion to suppress alleged that the officer
had not conducted field sobriety tests in substantial compliance with NHTSA guidelines
as required by R.C. 4511.19(D)(4)(b). Id. at ¶13. The court found this statement to be
sufficient to identify the issues the defendant was raising. Id. The court noted that a video
recording of the field sobriety tests was not available. Id. at ¶14. Thus, the defendant
provided notice of “legally significant facts to the extent that the facts were available,”
which rendered her motion more than a “mere fishing expedition.” Id.
{¶67} Here, Mr. Osborne’s motion contained no factual basis nor was it targeted
toward one specific code section. Rather, Mr. Osborne employed a “shotgun approach
achieved by merely ‘wrapping the administrative code in a folder and filing it.’” (Citation
omitted.) See State v. Stoner, 6th Dist. Ottawa No. OT-05-042, 2006-Ohio-2122, ¶26;
State v. Kuzma, 11th Dist. Portage No. 93-P-0019, 1993 WL 545129, *2 (Dec. 3, 1993).
By alleging a violation of everything, Mr. Osborne alleged a violation of nothing in
particular. See State v. Tyner, 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, ¶13.
{¶68} Such motions do not give the prosecutor or the court adequate notice of the
issues truly in dispute. See Tyner at ¶15 (defendant did not meet his burden where he
“filed a boilerplate memorandum that * * * unreasonably alleged every conceivable
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violation of Ohio Admin. Code 3701-53-01, et seq.”); Stoner at ¶15 (defendant did not
meet his burden by listing a “laundry list of 15 allegations that appear to encompass every
possible defect that may have occurred in [his], or any other defendant’s, field sobriety
test or chemical test”); State v. Zink, 9th Dist. Summit No. 17484, 1996 WL 502317, *2
(Sept. 4, 1996) (“Appellant’s motion to suppress was totally inadequate because it merely
listed every possible rule and regulation that might conceivably be applicable”).
{¶69} Therefore, we conclude Mr. Osborne did not meet his burden to adequately
place the city on notice of the need to present suppression hearing testimony establishing
compliance with R.C. 4511.19(D) and Ohio Adm.Code Chapter 3701-53.
{¶70} Further, at the suppression hearing, Mr. Osborne raised only two specific
challenges to the breath test. Mr. Osborne’s failure to assert additional challenges
constitutes a waiver of such issues for purposes of appeal. See State v. Box, 10th Dist.
Franklin No. 16AP-371, 2017-Ohio-1138, ¶13; Xenia, supra, at 218 (“Failure on the part
of the defendant to adequately raise the basis of his challenge constitutes a waiver of that
issue on appeal”).
Substantial Compliance
{¶71} Even if Mr. Osborne properly placed the city on notice regarding the
specific issues he raised at the suppression hearing, the city established substantial
compliance.
{¶72} The first issue involved whether the Intoxilyzer ran a “dry gas control” in
between Mr. Osborne’s two breath samples. Officer Cook testified that after Mr. Osborne
provided his first breath sample, he took the air hose and put it back on the holster so the
machine could run a dry gas control. He then took the hose back out and had Mr. Osborne
provide his second sample. When Mr. Osborne’s counsel presented him with the test
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result printout, Officer Cook admitted it contained no data indicating a dry gas control ran
between Mr. Osborne’s two samples.
{¶73} Ohio Adm.Code 3701-53-04(B) specifically states “[a] dry gas control is not
required between the two breath samples.” See State v. Jones, 11th Dist. Portage No.
2012-P-0107, 2013-Ohio-4114, ¶62 (interpreting the prior version of this regulation).
Therefore, even if the machine failed to run a dry gas control in between the two samples,
it would not constitute a violation.
{¶74} The second issue related to the printout of Mr. Osborne’s test results.
Officer Cook testified that the printer attached to the Intoxilyzer failed to print the test
results immediately following Mr. Osborne’s test. After Mr. Osborne posted bond and
was released, another officer was able to retrieve a printout of the test results from the
Intoxilyzer’s internal printer, which showed a BAC of 0.201. Officer Cook also identified
the printout at the suppression hearing. Although the printout is not part of the record for
our review, the trial court stated in its judgment entry that the printout showed a BAC of
0.201 and contained no error reports.
{¶75} Accordingly, the trial court’s finding of substantial compliance is supported
by competent, credible evidence. Further, Mr. Osborne did not attempt to demonstrate
that he was prejudiced by anything less than strict compliance.
{¶76} Mr. Osborne’s fourth assignment of error is without merit.
{¶77} Based on the foregoing, the judgment of the Willoughby Municipal Court is
affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
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