State v. Nation , 2023 Ohio 106 ( 2023 )

[Cite as State v. Nation, 2023-Ohio-106.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Sylvania Court of Appeals No. L-21-1251
Appellee Trial Court No. TRC2002853A
v.
Brandon Nation DECISION AND JUDGMENT
Appellant Decided: January 13, 2023
*****
Blaise C. Katter and Tim Huey, for appellant.
*****
OSOWIK, J.
I. Introduction
{¶ 1} This is an appeal from a judgment of the Sylvania Municipal Court’s
decision to deny defendant-appellant’s motion to suppress evidence. Appellant
challenges this denial, arguing that his arrest lacked competent, credible evidence; that
the officer failed to substantially comply with the guidelines and regulations established
by the National Highway Traffic Safety Administration (“NHTSA”) in the conduction of
standardized field sobriety tests (“SFSTs”); and that his arrest lacked probable cause. For
the following reasons, the judgment of the trial court is affirmed.
II. Facts and Procedural Background
{¶ 2} On September 5, 2020, around 10:30 p.m., Lucas County Sheriff’s Deputy
Jeff Bretzloff observed a white GMC SUV traveling in the wrong direction on Dorr
Street. At the time, Dorr Street was a one-way road as a result of construction. Deputy
Bretzloff stopped appellant, Brandon Nation, near the intersection of McCord Road and
Dorr Street. Deputy Bretzloff approached appellant at the driver’s side window which
appellant had already rolled down. Upon the officer’s approach, appellant immediately
stated “Hi, I apologize” with slurred speech. He then stated he had no idea it was a one-
way street.
{¶ 3} Deputy Bretzloff noticed a strong odor of alcohol emanating from
appellant’s vehicle and that the appellant had bloodshot and glossy eyes. Appellant
denied he had been drinking. Appellant handed his license and proof of insurance to the
deputy, which was provided to the appellant from his passenger. Deputy Bretzloff found
no prior arrests for appellant and asked appellant to step out of his vehicle. Upon exiting,
Deputy Bretzloff told appellant he was going to need him do some field sobriety tests.
Appellant complied with this request.
{¶ 4} Performance of the Horizontal Gaze Nystagmus (“HGN”) test found the
appellant lacked smooth pursuit of his eyes and an inability to follow directions.
2.
Performance of the HGN test also found a distinct nystagmus and that the appellant’s
eyes lacked a smooth tracking plane when he was asked to follow the pen up and down.
Appellant denied having ever been diagnosed with natural nystagmus.
{¶ 5} On the one-leg stand test, appellant had trouble following directions. He
failed to count “one thousand one, one thousand two...” until told to stop as directed.
Appellant was advised that the test would last for about thirty seconds. Appellant put his
left foot down prior to the deputy telling him to stop. When asked why he put his foot
down, he stated that “thirty seconds is a long time.” He also had difficulty following
instructions on the walk and turn test; this test was performed with noticeable swaying as
appellant walked heel to toe. Deputy Bretzloff also observed four empty cans of
Michelob Ultra Beer in a plastic bag behind the driver’s seat.
{¶ 6} Appellant was taken into custody upon completion of the performance of the
field sobriety tests. Appellant refused to submit to the preliminary breath test and was
taken to the Lucas County jail where he was booked. He was then charged with
operating a vehicle under the influence of alcohol (OVI) in violation of R.C.
4511.19(A)(1)(a); driving the wrong way on a one-way highway in violation of R.C.
4511.32(A); and driving upon a closed highway in violation of R.C. 4511.71(A).
{¶ 7} Appellant filed a motion to suppress evidence on February 5, 2021 and
asserted that there was no lawful cause to stop or detain him and that there was no
probable cause to arrest him without a warrant, in violation of the Fourth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 14 and 16 of the
3.
Ohio Constitution. Appellant also argued that the administration of the field sobriety
tests that were given to him was not done in substantial compliance with the rules and
regulations of NHTSA, and therefore were not admissible at trial or to be considered as a
factor in determining if there was probable cause for his arrest.
{¶ 8} The motion to suppress went to a hearing before the trial court on March 11,
2021. Deputy Bretzloff was the only witness to testify; appellant also admitted into
evidence chapters 7 and 8 of the 2018 version of the National Highway Traffic Safety
Administration DWI Detection and Standardized Field Sobriety Testing Manual
(“NHTSA manual”). The State submitted Deputy Bretzloff’s bodycam video footage as
evidence. Deputy Bretzloff testified it was reasonable to stop appellant’s vehicle when it
drove around a road closed sign near a construction zone by the intersection of McCord
Road and Dorr Street and continued to drive the wrong way down the road approximately
100 to 150 yards until he initiated a stop.
{¶ 9} Upon approaching appellant’s vehicle, Deputy Bretzloff stated he observed
bloodshot and glossy eyes, slurred speech, and a strong odor of alcohol being emitted
from the passenger compartment. He also noted appellant denied the consumption of any
alcohol that evening but stated that he and his wife were coming from dinner. Based on
these factors in conjunction with his demeanor, Deputy Bretzloff asked appellant to exit
the vehicle and conducted sobriety tests. He observed six of the six clues on the HGN
test, five clues on the one-leg stand test, and he thought “fourteen” clues on the walk-and-
4.
turn test. Deputy Bretzloff determined that, based on his observations that night and on a
totality of the circumstances, he had probable cause to arrest appellant.
{¶ 10} The motion to suppress was filed five months after the initial incident.
Appellant originally challenged the lawfulness of the traffic stop itself, the detention for
field sobriety testing, his arrest for OVI, and that the SFSTs were not conducted in
accordance with NHTSA standards. Appellant withdrew his original challenges to the
lawfulness of the traffic stop itself, and continued to plead not guilty to OVI, challenging
the conduction of the SFSTs and probable cause to arrest for OVI.
{¶ 11} On August 9, 2021, the trial court denied the motion to suppress, stating
that “a police officer has probable cause for an arrest if the facts and circumstances
within his or her knowledge are sufficient to cause a reasonably prudent person to believe
that the defendant committed the offense.” (citing State v. Barrett, 5th Dist. Richland No.
19 CA 23, 2019-Ohio-4270, ¶ 24). The Court reasoned that Deputy Bretzloff witnessed
appellant maneuver his SUV around the road-closed sign and continue the wrong way
down a one-way road. The deputy then noted appellant’s bloodshot and glossy eyes,
slurred speech, and a strong odor of alcohol stemming from the vehicle and appellant’s
person. In addition, the court noted appellant’s performance on the sobriety tests and the
video evidence, when viewed together with the factors previously mentioned, provided
probable cause to arrest appellant for an OVI offense.
{¶ 12} After the court denied appellant’s motion to suppress, on November 8,
2021, he pleaded no contest to an amended charge of a violation of R.C. 4511.194,
5.
physical control of vehicle while under the influence. He was then found guilty by the
court and was sentenced to 180 days in jail, all but 177 of which were suspended upon
certain terms and conditions, in addition to a $375 fine and court costs and a 12-month
license suspension. The accompanying charges of one-way street and driving on a closed
roadway were dismissed pursuant to a recommendation of the prosecutor.
{¶ 13} Appellant timely filed this appeal from the November 8, 2021 judgment of
the trial court.
III. Assignment of Error
{¶ 14} Appellant presents a single assignment of error for our review: The Trial
Court Erred in Overruling the Motion to Suppress.
{¶ 15} Appellant’s appeal is premised upon the following two arguments:
1. The trial court erred by admitting field sobriety tests in support of
probable cause, when the arresting officer did not conduct the tests in any
compliance with his NHTSA training.
2. The trial court erred in concluding there was probable cause to
arrest under the totality of the circumstances in this case.
IV. Law and Analysis
Issue
{¶ 16} The question in this appeal is whether or not the Sylvania Municipal Court
erred in denying appellant’s motion to suppress.
6.
Standard of Review
{¶ 17} Appellate review of a motion to suppress presents a mixed question of law
and fact. 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. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. Consequently, the appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. The appellate court applies a
de novo standard of review to determine whether the facts satisfy the applicable legal
standard. Id. See also State v. Bragg, 6th Dist. Lucas No. L-07-1162, 2007-Ohio-5993, ¶
4; State v. Steed, 2016-Ohio-8088, 75 N.E.3d 816, ¶ 11 (6th Dist.). Accepting these facts
as true, the appellate court must then independently determine, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal standard.
Burnside at ¶ 8, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th
Dist.1997).
{¶ 18} Appellant argues that the trial court erred in denying his motion to
suppress, challenging the detention for field sobriety testing, compliance with NHTSA
standards, and probable cause for this arrest. The Fourth Amendment to the United
States Constitution, as applied to the states through the Fourteenth Amendment, and Ohio
Constitution, Article I, Section 14 protect individuals against “unreasonable searches and
seizures” by the government and protects privacy interests where an individual has a
reasonable expectation of privacy. State v. Fielding, 2014-Ohio-3105, 15 N.E.3d 912, ¶
7.
15 (10th Dist.), quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d
220 (1979).
{¶ 19} Temporary detention of individuals during the stop of an automobile by the
police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of
“persons” within the meaning of this provision. Whren v. United States, 517 U.S. 806,
809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, in certain circumstances the
United States Supreme Court has interpreted the Fourth Amendment to permit police
stops of motorists in order to investigate a reasonable suspicious of criminal activity.
Maumee v. Weisner, 87 Ohio St.3d 295, 720 N.E.2d 507 (1999).
{¶ 20} When determining the reasonableness of a stop, this Court has previously
held that the decision to stop an automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred. Bowling Green v. Godwin, 110
Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698. In this instance, Deputy Bretzloff
observed appellant drive around a road-closed sign and drive the wrong way on a one-
way road for approximately 100 to 150 yards, potentially endangering any oncoming
traffic that was driving the correct way down the road. We can find no error on the part
of the trial court’s finding that Deputy Bretzloff had probable cause to stop appellant.
{¶ 21} Appellant argues Deputy Bretzloff failed to substantially comply with
NHTSA standards, citing that he failed to perform the entire HGN test and that the
portions performed were incorrect. Appellant also argues the deputy could not remember
the number of clues on both the one-leg stand test and walk-and-turn test, nor could he
8.
articulate the exact clues he was looking for. Therefore, appellant reasons that the
standardized field sobriety tests should have been excluded in determining whether the
deputy had probable cause to arrest him for OVI. And if the results of the SFSTs are
excluded, appellant contends, the deputy did not have probable cause to arrest him.
{¶ 22} Appellant next argues that there was no probable cause to arrest him; that
there was no evidence of impaired driving. In support, he points out that he properly
retrieved all requested documentation for the deputy and argues that he spoke in a normal
manner and that his speech was not slurred. He further contends that all the state can
point to in support of probable cause was an odor of alcohol, bloodshot and glossy eyes,
and a disputed allegation of stuttering, which appellant contends as being misclassified as
slurred speech. We are not persuaded. A review of the record indicates that there was
sufficient evidence to establish probable cause to believe that appellant was operating his
vehicle in violation of R.C. 4511.19(A)(1)(a), OVI. In this case, appellant specifically
challenges the factual findings made by the trial court.
A. Slurred Speech
{¶ 23} Appellant’s primary argument in regards to a lack of clear, competent
evidence rests on the trial court’s characterizations of appellant’s speech as slurred;
appellant contends that the video evidence shows that he “stuttered” versus slurred.
{¶ 24} A review of the video evidence establishes that appellant mischaracterizes
his slurred speech as “stuttering.” The evidence shows appellant indeed slurs the phrase
“I apologize.” Webster’s New International Dictionary of the English Language (11th
9.
Ed.2003) defines “stutter” as “to speak with involuntary disruption of blocking of speech
(as by repetition or prolongation of vocal sounds).” In this instance, there was no
stopping or starting of any consonant or syllable. The phrase “I apologize” was all
spoken indistinctly so that the sounds ran into one another. We find no error in the
finding of slurred speech by the trial court.
B. Compliance with NHTSA standards
{¶ 25} Appellant argues that Deputy Bretzloff did not comply with the standards
developed by NHTSA when he administered the SFSTs. See NHTSA manual.
Therefore, appellant argues, the results of the tests could not be considered in
determining whether the deputy had probable cause to arrest him for OVI. And if the
results of the SFSTs are excluded, appellant contends, Deputy Bretzloff did not have
probable cause to arrest him.
{¶ 26} Deputy Bretzloff’s testimony at the suppression hearing showed that,
although he did not substantially comply with NHTSA requirements when he
administered the HGN test, he substantially complied with NHTSA requirements for the
one-leg stand and walk-and-turn tests. Appellant exhibited sufficient clues on the one-leg
stand and walk-and-turn tests to demonstrate impairment, which combined with his other
observations to give the deputy probable cause to arrest appellant. Thus, although the
trial court erred by denying appellant’s motion to suppress the HGN test results, the error
was harmless, and the court did not err in denying his motion to suppress.
10.
Admissibility of the Field Sobriety Tests
{¶ 27} Results from field sobriety tests are not admissible unless the state shows
by clear and convincing evidence that the officer administered the tests in substantial
compliance with NHTSA guidelines. State v. Codeluppi, 139 Ohio St.3d 165, 2014-
Ohio-1574, 10 N.E.3d 691, ¶ 11, citing R.C. 4511.19(D)(4)(b). “Substantial compliance”
is not defined by the statute. Thus, whether the facts satisfy the substantial compliance
standard is determined on a case-by-case basis. State v. Mapes, 6th Dist. Fulton No. F-
04-031, 2005-Ohio-3359, ¶ 44.
{¶ 28} In his brief, appellant cites to Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, at ¶ 34, quoting State v. Homan, 89 Ohio St.3d 421, 426, 732
N.E.2d 952 (2000), superseded by statute on other grounds, for the proposition that
“substantial compliance is no more than a ‘de minimis’ deviation from the prescribed
rules.” However, the de-minimis-deviation standard in Burnside is only applicable to the
testing procedures detailed in R.C. 4511.19(D)(1)—i.e., tests of breath, blood, and other
bodily fluids—not the testing procedures detailed in R.C. 4511.19(D)(4)—i.e., SFSTs.
See, e.g., State v. Fridley, 2017-Ohio-4368, 93 N.E.3d 10, ¶ 15, 30 (12th Dist.) (citing
different substantial-compliance standards for reviewing field sobriety tests and blood
alcohol test); and compare Weiler, Weiler, and Katter, Baldwin’s Ohio Handbook Series
Ohio Driving Under the Influence Law, Section 7:14 (2022) (Regarding SFSTs, “[s]ince
[R.C. 4511.19(D)(4)(b)] does not define substantial compliance, a determination of
whether the facts satisfy the standard is made on a case-by-case basis.”) with id. at
11.
Section 8:25 (Because the director of the Ohio Department of Health (“ODH”) has the
authority to set standards for chemical tests, and judicial determination of the effect of
noncompliance with the director’s regulations requires courts to question the reliability of
chemical tests, the Supreme Court “concluded that to avoid usurping a function that had
been assigned to the Director of Health, it must limit the substantial compliance
[standard] to excuse only errors that are clearly de minimus [sic] * * *.” (Emphasis sic.)).
The case law has not clearly articulated the distinction—and, at times, courts (including
ours) have confused the two standards. See, e.g., State v. DeVault, 6th Dist. Ottawa No.
OT-12-027, 2013-Ohio-2942; State v. Parks, 5th Dist. Licking No. 12-CA-87, 2013-
Ohio-2492.
{¶ 29} Chemical tests of breath and bodily fluids are regulated by rules
promulgated by the director of the ODH. See Ohio Adm.Code Chapter 3701-53. These
rules “are simply the law in Ohio.” State v. Bish, 191 Ohio App.3d 661, 2010-Ohio-
6604, 947 N.E.2d 257, ¶ 42 (7th Dist.). To protect the separation of powers doctrine and
prevent the courts from usurping the executive branch’s rulemaking authority, the
Supreme Court has determined that only “‘minor procedural deviations’” will be
considered substantial compliance when it comes to regulations that have the force of
law. Burnside at ¶ 34, quoting Homan at 426. This prevents the courts from second-
guessing decisions made by the director of the ODH and undercutting the department’s
rulemaking authority. State v. Farrell, 2021-Ohio-1554, 172 N.E.3d 488, ¶ 24 (6th
Dist.).
12.
{¶ 30} Standards for SFSTs, on the other hand, come from some “official
publication”—usually the NHTSA manual—that, while reliable, does not carry the force
of law. Bish at ¶ 44, citing State v. Frakes, 5th Dist. Coshocton No. 07CA0013, 2008-
Ohio-4204, ¶ 44-47. Because the standards for SFSTs are not laws, the separation of
powers concerns that can arise with regulations promulgated by an executive branch
agency simply do not exist when courts more closely examine the standards controlling
SFSTs. Thus, although the issue has not been squarely before it, the Supreme Court (on
the few occasions that it has addressed the statute) has not limited the substantial-
compliance standard in cases involving R.C. 4511.19(D)(4) in the way that it has in cases
involving R.C. 4511.19(D)(1). See Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10
N.E.3d 691, at ¶ 11 (addressing the particularity required in a motion to suppress the
results of SFSTs); State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d
155, ¶ 21-24 (finding the substantial-compliance standard in R.C. 4511.19(D)(4)
constitutional). Accordingly, the appellate courts are left to determine in each case
whether the officer substantially complied with NHTSA regulations when he
administered SFSTs.
{¶ 31} For the results of SFSTs to be admissible, the state must lay a proper
foundation as to (1) the administering officer’s training and ability to administer the tests
and (2) the actual techniques he used to administer the tests. State v. Boles, 2020-Ohio-
4485, 158 N.E.3d 1013, ¶ 15 (2d Dist.), citing Boczar at ¶ 28. The state’s burden of
proof for the admissibility of field sobriety test results in not onerous; if unchallenged,
13.
general testimony that the officer followed all pertinent rules and regulations is sufficient.
State v. Aiken, 6th Dist. Fulton No. F-21-005, 2021-Ohio-3503, ¶ 27, citing Boles at ¶ 15;
and State v. Murray, 2d Dist. Greene No. 2002-CA-10, 2002-Ohio-4809, ¶ 11. When the
defendant challenges the general testimony, however, the state is required to present more
particular evidence of compliance. State v. Murray, 2d Dist. Montgomery No. 28373,
2020-Ohio-45, ¶ 19.
{¶ 32} Here, appellant challenged Deputy Bretzloff’s general testimony that he
complied with his training and NHTSA standards when he administered appellant’s
SFSTs. The details that emerged when Deputy Bretzloff gave more particular testimony
on cross-examination—including the footage from his body camera—showed that the
deputy substantially complied with the requirements in the NHTSA manual for the one-
leg stand and walk-and-turn tests. Based on those tests and the other indicia of
impairment that Deputy Bretzloff testified to, he had probable cause to arrest appellant
for OVI, and the trial court’s failure to suppress the results of the HGN test was harmless.
Horizontal gaze nystagmus test
{¶ 33} Turning first to the HGN test, Deputy Bretzloff’s testimony, when
considered in conjunction with the video from his body camera that was admitted into
evidence at the suppression hearing, shows that he failed to administer the test in
substantial compliance with NHTSA guidelines.
{¶ 34} The NHTSA manual details nine steps an officer should follow when
administering the test: (1) check the subject for eyeglasses or contact lenses, (2) provide
14.
verbal instructions for the test, (3) position the stimulus 12 to 15 inches in front of the
subject and slightly above eye level, (4) check for equal pupil size and resting nystagmus,
(5) check for equal tracking, (6) check for lack of smooth pursuit, (7) check for distinct
and sustained nystagmus at maximum deviation, (8) check for onset of nystagmus prior
to 45 degrees, and (9) total the clues.1 NHTSA manual, Session 8, 31-32. The officer is
supposed to verbally instruct the subject to (1) stand with their feet together and their
hands at their sides, (2) keep their head still, (3) look at the stimulus, (4) follow the
movement of the stimulus with their eyes only, and (5) keep looking at the stimulus until
the officer tells them that the test is over. Id. at 33.
{¶ 35} When checking the subject’s eyes, the manual instructs officers to check
for each of the three clues in each eye independently—resulting in a maximum possible
score of six clues of impairment—and to repeat the test for each clue twice on each eye.
Id. at 38. That is, to complete the HGN test as prescribed by the NHTSA manual, an
officer would have to complete a minimum of 14 “passes” of the stimulus in front of the
eyes—at least one pass per eye (or two total passes) to check for equal tracking and two
passes per eye (or four total passes) for each of the three clues.
{¶ 36} Regarding specific instructions for each portion of the HGN test, to check
for lack of smooth pursuit, the manual instructs the officer to move the stimulus
1
The manual also includes the optional vertical gaze nystagmus test that Deputy
Bretzloff did not testify about in this case.
15.
smoothly, steadily, without stopping at the sides or center, and at a speed that takes
approximately two seconds to get from the center to the side. Id. at 41. For distinct and
sustained nystagmus at maximum deviation, the manual requires the officer to move the
stimulus toward the subject’s shoulder until their eye has gone as far as possible and then
hold the stimulus there for a minimum of four seconds. Id. at 45. The manual
specifically notes that an officer “cannot simply hold the eye to the side for an instant and
expect to observe distinct jerking.” Id. It also points out that the eye will not experience
“fatigue nystagmus” unless it is held at maximum deviation for more than 30 seconds.
Id. at 46. The manual is quite clear that this clue does not count unless the nystagmus is
distinct and sustained for at least four seconds. Finally, for onset before 45 degrees, the
manual says that the officer should move the stimulus at a speed that takes approximately
four seconds to reach a 45-degree angle, and when the officer sees jerking start, he should
hold the stimulus steady, ensure that the jerking continues, and determine whether the
stimulus is before or after 45 degrees. Id. at 51.
{¶ 37} Deputy Bretzloff testified that he first asked if appellant had ever been
diagnosed with “natural nystagmus” and if he could see the stimulus that the deputy was
holding 12 to 15 inches from appellant’s face. Next, he checked appellant’s eyes for
“[s]mooth pursuit * * * two to three times.” He also testified—in response to leading
questions by the prosecutor and without providing any details on how he performed these
portions of the test beyond “basically looking at, going from the center point of the, of the
face out to the just lateral point of the shoulder looking [at] his eye[s] * * *”—that
16.
appellant’s eyes tracked equally, he had onset of nystagmus before 45 degrees, and had
distinct and sustained nystagmus at maximum deviation. Deputy Bretzloff concluded
that appellant showed six of six clues on the HGN test.
{¶ 38} On cross-examination, Deputy Bretzloff conceded that he did not conduct
parts of the HGN test exactly as prescribed by the NHTSA manual. Specifically, (1) he
did not ask appellant if he had any head injuries before beginning the test; (2) he did not
hold the stimulus for more than “a second” when checking for distinct and sustained
nystagmus at maximum deviation because he did not “want to overstimulate the eye”; (3)
when checking for onset before 45 degrees, he moved the stimulus at “the same speed
and duration” as he did for the other two tests; and (4) he only completed ten total passes,
which was less than the 16 total passes required by the NHTSA manual.2
{¶ 39} The video from Deputy Bretzloff’s body camera showed that he gave
appellant instructions that were substantially similar to those in the NHTSA manual. He
told appellant to stand with his feet together and arms at his sides, asked if he had
contacts in, asked if he could see the tip of the pen that the deputy was using as the
2
During cross-examination, defense counsel and Deputy Bretzloff arrived at 16 total
passes by adding two passes per eye (four total passes) for the officer’s assessment of
equal tracking. Although the NHTSA manual says that the equal tracking “check may be
done more than once[,]” it only requires one pass per eye (two total passes) to check for
equal tracking. (Emphasis added.) NHTSA manual, Session 8, 34.
17.
stimulus, told him to follow the tip of the pen with only his eyes, asked if appellant
understood the instructions, and appeared to hold the pen an appropriate distance in front
of appellant’s face. At the beginning of the test, Deputy Bretzloff repeated his
instructions that appellant was to follow the pen with only his eyes and was to hold his
head still twice when he believed that appellant was not following instructions. He
stopped moving the stimulus—and subsequently restarted his HGN assessment—each
time he reinstructed appellant. Midway through the test, Deputy Bretzloff asked
appellant if he had ever been diagnosed with “natural nystagmus.” The passes that the
deputy completed took approximately two to four seconds each, and he moved the
stimulus at approximately the same speed throughout the test.
{¶ 40} Of the ten total passes that Deputy Bretzloff completed (excluding the
vertical passes that he did in the middle of the test and that were not discussed by either
side at the suppression hearing), seven passes were of appellant’s left eye and three were
of his right eye. Because Deputy Bretzloff did not vary the speed of his passes, hold the
stimulus to check for distinct and sustained nystagmus, or do an equal number of passes
on each eye, it is not possible to tell from the video alone which clue the deputy is
checking with each pass.
{¶ 41} In its judgment entry denying appellant’s motion to suppress, the trial court
determined that Deputy Bretzloff substantially complied with NHTSA guidelines in
administering appellant’s HGN test because the deputy “describe[d], in detail, the steps
for administering the HGN test and testified that he had performed the test in accordance
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with the guidelines[,]” and Deputy Bretzloff’s failure to conduct the appropriate number
of passes was excused by appellant’s “lack of cooperation and/or his inability to perform
the test * * *.”
{¶ 42} Deputy Bretzloff’s administration of the HGN test to appellant does not
constitute substantial compliance with NHTSA requirements. Although the times in the
manual for completing each pass (and, consequently, the speed at which the officer
completes each pass) are approximate, the time that the officer must hold the stimulus
while checking for distinct and sustained nystagmus is not. Murray, 2d Dist.
Montgomery No. 28373, 2020-Ohio-45, at ¶ 20, 26; State v. Scott, 6th Dist. Lucas No. L-
21-1128, 2022-Ohio-2071, ¶ 37 (citing cases). Similar to the length of the hold for
distinct and sustained nystagmus, the requirement that officers complete two passes of
each eye to check for each of the three clues of impairment is a “mandate[]” rather than a
“guideline[].” Murray at ¶ 20. The NHTSA manual repeatedly mentions that the
administering officer should check each eye twice or do two passes of each eye when
checking for each clue; it does not say that a second pass is “optional” or that the officer
can do “approximately” two passes. See NHTSA manual, Session 7, 11; Session 8, 35,
38, 40, 41, 43.
{¶ 43} We are mindful that we must accept the trial court’s findings of fact if they
are supported by some competent, credible evidence. Codeluppi, 139 Ohio St.3d 165,
2014-Ohio-1574, 10 N.E.3d 691, at ¶ 7, citing Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, at ¶ 8; State v. Jones-Bateman, 6th Dist. Wood Nos. WD-11-074
19.
and WD-11-075, 2013-Ohio-4739, ¶ 9. However, we cannot find that the trial court’s
assessment of the facts surrounding the HGN test meet that standard.
{¶ 44} Deputy Bretzloff did not provide much, if any, independent information
about what the guidelines for the HGN test are or how he administered the test in
appellant’s case. The bulk of his direct testimony consisted of answers to the
prosecutor’s leading questions, and his testimony that he conducted the test in accordance
with NHTSA guidelines is belied by his testimony on cross and—importantly—the video
footage from his body camera. Despite providing accurate instructions and doing some
of the required preliminary questioning, Deputy Bretzloff failed to do at least three
mandatory passes of appellant’s right eye and testified that he intentionally—albeit
mistakenly—failed to administer the mandatory four-second hold when checking for
distinct and sustained nystagmus at maximum deviation. Under these circumstances, we
cannot find that Deputy Bretzloff’s administration of the HGN test substantially complies
with NHTSA’s guidelines.
{¶ 45} Regardless, the trial court’s failure to suppress the results of the HGN test
was harmless because Deputy Bretzloff substantially complied with NHTSA guidelines
for the one-leg stand and walk-and-turn tests, giving him probable cause to arrest
appellant for OVI.
One-leg stand test
{¶ 46} The second SFST that Deputy Bretzloff administered to appellant was the
one-leg stand test. Appellant argues that the deputy could not have administered the one-
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leg stand test correctly because when he testified “[h]e was unable to accurately identify
the standardized clues [from the NHTSA manual], inaccurately listed observations that
were not clues and was unable to correctly articulate factors that supported his arrest
decision.”
{¶ 47} Although Deputy Bretzloff’s testimony about this SFST—standing alone—
does not show substantial compliance with NHTSA guidelines, the record as a whole
shows that Deputy Bretzloff did substantially comply.
{¶ 48} To administer the one-leg stand test, the NHTSA manual requires the
testing officer to (1) ask if the subject has any physical problems or disabilities because
people over age 65, who have back, leg, or inner ear problems, or who are 50 or more
pounds overweight could have difficulty performing the test; (2) conduct the test on a
reasonably dry, hard, level, non-slippery surface; (3) verbally instruct the subject to (a)
stand with their feet together and arms at their sides, (b) not to start the test until told, (c)
when told to begin, lift either foot approximately six inches off the ground, keeping the
foot parallel to the ground, (d) keep both legs straight and arms at their sides the whole
time, (e) count out loud starting with 1,001 until told to stop, and (f) watch their raised
foot; (4) demonstrate each part of the test; (5) ensure that the subject understands the
instructions and answer any questions before beginning the test; (6) time the subject and
stop the test after 30 seconds; and (7) if the subject puts their foot down during the test,
tell them to pick up their foot and continue counting from the point when their foot
touched the ground. NHTSA manual, Session 8, 73, 75-76.
21.
{¶ 49} The NHTSA manual list four clues for the one-leg stand test: (1) swaying
while balancing, which means distinct, noticeable side-to-side or front-to-back motion of
the body or raised foot; (2) using arms for balance, which means moving one or both
arms six or more inches from their side in order to keep their balance; (3) hopping to
keep balance; and (4) putting their foot down. A subject showing two or more clues, or
failing to complete the test, indicates impairment. Id. at 77-79.
{¶ 50} At the hearing, Deputy Bretzloff testified that he gave appellant
instructions that were substantially similar to those in the NHTSA manual. The video
showed that the deputy asked appellant if he had any physical problems that could affect
the test, and showed that the age and weight concerns did not apply to appellant. Deputy
Bretzloff said that the clues he was looking for included appellant removing his arms
from his sides, putting his foot on the ground, “excessive movement in the legs,”
hopping, “swerving,” not looking at his raised foot, and something involving counting
that was inaudible. He testified that he actually observed that appellant “failed to look at
his raised foot, failed to count out loud, placed his foot down twice prior to being
instructed to do so, and had excessive movement in his non-raised leg while trying to
maintain his balance * * *.”
{¶ 51} On cross-examination, Deputy Bretzloff was not able to recall the exact
number of clues in the NHTSA manual for the one-leg stand test, and said that he
believed that the manual required three clues to make a proper arrest decision.
22.
{¶ 52} Although Deputy Bretzloff did not have the list of indicators that he was
supposed to be looking for precisely correct, and not all of the things that he observed are
“clues” according to the NHTSA manual, on the whole, he conducted the one-leg stand
test in compliance with NHTSA guidelines. In addition to asking appropriate preliminary
questions and giving appropriate instructions, Deputy Bretzloff testified to two indicators
of impairment. Appellant putting his foot down is a clue listed in the NHTSA manual,
and the video from Deputy Bretzloff’s body camera shows that the “excessive movement
in [appellant’s] non-raised leg * * *” that the deputy described was swaying, i.e., distinct,
noticeable side-to-side and front-to-back movement, which is also a clue. The video also
showed that appellant put his foot down, looked at Deputy Bretzloff, shrugged, and
stopped the one-leg stand test before the deputy told him to stop and before 30 seconds
had elapsed. In other words, Deputy Bretzloff testified—albeit imprecisely—that he
observed two clues of impairment, and the evidence showed that appellant failed to
complete the test, which the NHTSA manual also lists as a sign of impairment.
{¶ 53} Appellant cites to S. Euclid v. Bautista-Avila, 2015-Ohio-3236, 36 N.E.3d
246 (8th Dist.), for the proposition that an officer does not administer SFSTs in
substantial compliance with the NHTSA manual when “the officer is mistaken about
which indicators he was testing and chang[es] indicators to include his own observations
* * *.” The court in Bautista-Avila did not make such a broad, generalized holding,
however. Rather, based on the specific facts of that case, the Eighth District upheld the
trial court’s suppression of SFSTs. And the facts of Bautista-Avila are distinguishable.
23.
{¶ 54} Overall, the officer in Bautista-Avila demonstrated far less knowledge
about the process for administering SFSTs and the indicators of intoxication that he was
supposed to be looking for during the tests than Deputy Bretzloff did in this case. See id.
at ¶ 11-16. The Eighth District also noted that the video of the SFSTs “was not
consistent with [the officer’s] testimony[,]” id. at ¶ 13, which—with the exceptions
discussed regarding the HGN test—is not true here.
{¶ 55} Specifically regarding the one-leg stand test, the officer in Bautista-Avila
admitted that one of the so-called clues that he noted—that Bautista-Avila “kept looking
at his toe”—was not a clue in the NHTSA manual, but was “his own indicator.”3 Id. at ¶
16. Notably, the court did not say whether the officer observed any of the indicators from
the NHTSA manual, i.e., whether the officer saw the minimum two clues required to
determine that Bautista-Avila was intoxicated. In contrast, although Deputy Bretzloff
was mistaken about some of the indicators from the NHTSA manual, he did not
intentionally make up and use his own indicators of intoxication, and—critically—he
actually observed two of the clues of impairment from the NHTSA manual. This makes
Bautista-Avila inapplicable to appellant’s case.
3
The Eighth District cited the 2006 version of the NHTSA manual in its decision. The
court did not include the one-leg stand test instructions from that version of the manual in
its decision, but the officer’s testimony leads to the conclusion that the 2006 version did
not instruct the subject to look at his raised foot during the test.
24.
{¶ 56} Because the record as a whole shows that Deputy Bretzloff substantially
complied with NHTSA guidelines in administering the one-leg stand test, the trial court
properly denied appellant’s motion to suppress this test.
Walk-and-turn test
{¶ 57} The final SFST that Deputy Bretzloff administered to appellant was the
walk-and-turn test. Appellant argues that the deputy failed to comply with the NHTSA
manual when he administered and interpreted this test because he could not recall how
many indicators the test has, but believed that he observed 14 clues from appellant, he
observed things that are not clues in the manual, and he instructed appellant to walk in a
“relatively straight path” instead of a straight line.
{¶ 58} Again, while Deputy Bretzloff’s testimony about this SFST—standing
alone—does not show substantial compliance with NHTSA guidelines, the record as a
whole shows that he substantially complied with the guidelines.
{¶ 59} To administer the walk-and-turn test, the NHTSA manual requires the
testing officer to (1) check the same environmental and physical factors as the one-leg
stand test; (2) verbally instruct the subject to (a) put their left foot on the (real or
imaginary) line, put their right foot in front of their left with the heel of the right against
the toe of the left, and keep their arms at their sides, (b) stay in that position until the
instructions are finished and not to start the test until told, (c) when told to begin, take
nine heel-to-toe steps on the line, turn, and take nine heel-to-toe steps back, (d) to turn,
keep their front foot on the line and take a series of small steps with the other foot, (e)
25.
while walking, keep their arms at their sides, watch their feet, and count their steps out
loud, and (f) once they start walking, not to stop until they are finished; (3) demonstrate
at least three steps each direction and the process for turning; and (4) ensure that the
subject understands the instructions and answer any questions before beginning the test.
NHTSA manual, Session 8, 62, 64-65.
{¶ 60} The NHTSA manual lists eight clues for the walk-and-turn test: (1) the
subject cannot balance while listening to the instructions, which means that the subject
breaks the heel-to-toe stance during the instructions; (2) the subject starts too soon; (3)
the subject stops while walking; (4) the subject does not touch their feet heel‐to‐toe,
which means there is one-half inch or more between the feet on any step; (5) the subject
steps off of the line they are walking on, which requires the subject to step so that a foot
is entirely off the line; (6) the subject uses their arms to balance, which means that they
raise one or both arms six inches or more from their side to maintain balance; (7) the
subject makes an improper turn by removing their front foot from the line during the turn,
not turning in the manner instructed, or losing their balance during the turn; and (8) the
subject takes an incorrect number of steps in either direction. Id. at 66-70.
{¶ 61} At the suppression hearing, Deputy Bretzloff testified that he verbally
instructed appellant to “maintain a heal-to-toe [sic] step”; keep his arms at his sides
during the instructions; take nine heel-to-toe steps each direction on “a relatively straight
path” with his arms at his sides, looking at his feet, and counting his steps out loud; and
26.
after his ninth step in the first direction, turn around by making a series of small pivot
steps. He said that he also demonstrated all of these instructions for appellant.
{¶ 62} The video includes additional instructions that Deputy Bretzloff did not
mention in his testimony. The deputy actually instructed appellant to (1) stand with his
right foot on the white edge line of the road, put his left foot in front of his right “in a
heel-to-toe step,” keep his arms at his sides, and hold that position until Deputy Bretzloff
told him to do otherwise; (2) “take nine heel-to-toe steps down this white line” with his
arms to his sides, looking at his feet, and counting his steps out loud; (3) after taking nine
steps, make a series of small pivot steps to turn and face the direction he just came from;
and (4) repeat the process in the other direction, walking heel-to-toe, arms to his sides,
looking at his feet, and counting his steps out loud until he got to nine. Deputy Bretzloff
demonstrated each part of the test as he was giving appellant the instructions, although
what he was doing as he was demonstrating the test is not visible on the video,4 and asked
if appellant understood the instructions. Taken together, Deputy Bretzloff’s testimony
and the video show that he substantially complied with NHTSA guidelines when he
instructed appellant on the walk-and-turn test.
4
This fact is largely inconsequential because “R.C. 4511.19 only requires the
administration, not the demonstration, of field sobriety tests to be conducted in
substantial compliance with the NHTSA standards.” State v. Way, 12th Dist. Butler No.
CA2008-04-098, 2009-Ohio-96, ¶ 17, citing State v. Perl, 11th Dist. Lake No. 2006-L-
082, 2006-Ohio-6100, ¶ 14. Therefore, the fact that Deputy Bretzloff demonstrated the
test at all would seem to be sufficient to comply with the demonstration requirement in
the NHTSA manual.
27.
{¶ 63} Regarding the clues for the walk-and-turn test, Deputy Bretzloff said that
he looks for lack of balance, removing the arms from the sides to maintain balance, the
subject failing to look at their steps, not counting out loud, staying heel-to-toe, staying on
a straight path, any stopping during the test, and the pivot steps during the turn. Deputy
Bretzloff said that he thought appellant demonstrated 14 clues of impairment, but “would
have to * * * look at [his] report * * *.” He also said that the clues would be on the
video. On cross-examination, Deputy Bretzloff was not able to recall the exact number
of clues in the NHTSA manual for the walk-and-turn test or how many the manual
required to make a proper arrest decision, but said that he had a form on his phone that he
could refer to.
{¶ 64} Deputy Bretzloff’s report, which is in the record, noted that appellant failed
to follow instructions and began the test prior to being instructed, failed to maintain a
heel to toe step on step four of the first set, failed to complete the pivot steps as
instructed, stumbled while attempting to turn and failed to maintain a heel-to-toe step
throughout the rest of the test as he was instructed to do.
{¶ 65} These observations are confirmed by the video and constitute more than the
two clues necessary, according to the NHTSA manual, to classify a subject as
intoxicated. So, although Deputy Bretzloff’s testimony was insufficient to show that he
administered the walk-and-turn test in substantial compliance with NHTSA guidelines,
when the totality of the evidence before the trial court is considered, the state met its
28.
burden of showing that the deputy administered the walk-and-turn test in substantial
compliance with NHTSA standards.
Conclusion
{¶ 66} Deputy Bretzloff did not substantially comply with NHTSA guidelines
when he administered the HGN test, so the trial court should have suppressed the results
of that test. However, the deputy’s testimony, combined with the other evidence in the
record, showed that he substantially complied with NHTSA guidelines when he
administered the one-leg stand and walk-and-turn tests, so the trial court properly denied
appellant’s motion to suppress the results of those tests.
{¶ 67} Finally, the results of the one-leg stand and walk-and-turn tests, combined
with the other indicia of impairment that Deputy Bretzloff observed, gave the deputy
probable cause to arrest appellant for OVI. The trial court correctly denied appellant’s
motion to suppress on that basis.
Probable Cause
{¶ 68} “‘Probable cause “has come to mean more than bare suspicion,” but “less
than evidence which would justify condemnation” or conviction.’” Bautista-Avila, 2015-
Ohio-3236, 36 N.E.3d 246, at ¶ 17, citing United States v. Thomas, 11 F.3d 620, 627 (6th
Cir.1993), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed.
1879 (1949). “[E]ach ‘drunken driving’ case is to be decided on its own particular and
peculiar facts.” Id. at ¶ 18, citing Mentor v. Giordano, 9 Ohio St.2d 140, 146, 224
N.E.2d 343 (1967).
29.
{¶ 69} “Probable cause is generally defined as a reasonable ground of suspicion
supported by facts and circumstances sufficiently strong in themselves to warrant a
prudent person in believing an accused person has committed or was committing an
offense.” State v. Christopher, 12th Dist. Clermont No. CA2009-08-041, 2010-Ohio-
1816, ¶ 16. Probable cause to arrest for OVI exists when, at the moment of arrest, the
arresting officer had sufficient information, derived from a reasonably trustworthy source
of facts and circumstances, to cause a prudent person to believe the accused was driving
under the influence of alcohol. Way, 12th Dist. Butler No. CA2008-04-098, 2009-Ohio-
96, at ¶ 30. A court makes this determination based on the totality of the facts and
circumstances surrounding the arrest. State v. Aslinger, 12th Dist. Preble No. CA2011-
11-014, 2012-Ohio-5436, ¶ 13, citing Homan, 89 Ohio St.3d at 427, 732 N.E.2d 952. A
finding of probable cause is therefore objective, not subjective. State v. Willis, 12th Dist.
Butler No. CA2012-08-155, 2013-Ohio-2391, ¶ 25; see also State v. Shelton, 12th Dist.
Clermont No. CA2019-01-010, 2019-Ohio-4207, ¶ 6.
{¶ 70} Probable cause to arrest may exist, even without field sobriety tests results,
if supported by such factors as: evidence that the defendant caused an automobile
accident; a strong odor of alcohol emanating from the defendant; an admission by the
defendant that he or she was recently drinking alcohol; and other indicia of intoxication,
such as red eyes, slurred speech, and difficulty walking. Oregon v. Szakovits, 32 Ohio
St.2d 271, 291 N.E.2d 742 (1972); Fairfield v. Regner, 23 Ohio App.3d 79, 84, 491
N.E.2d 333 (12th Dist.1985); State v. Bernard, 20 Ohio App.3d 375, 376, 485 N.E.2d
30.
783 (9th Dist.1985); Westlake v. Vilfroy, 11 Ohio App.3d 26, 27, 462 N.E.2d 1241 (8th
Dist.1983); State v. Judy, 5th Dist. Delaware No. 2007-CAC-120069, 2008-Ohio-4520, ¶
27.
{¶ 71} In the case at bar, the probable cause to arrest appellant for OVI was
supported by the deputy’s observing him operating his vehicle in the wrong direction on a
one-way road in a construction area. The deputy also observed glossy eyes and the odor
of alcohol. Appellant’s wife, a passenger at the time, admitted to drinking “a little.” The
deputy also observed the four empty beer cans in a plastic bag behind the driver’s seat.
Appellant also poorly performed the field sobriety tests. Accordingly, the totality of the
evidence gave rise to probable cause to arrest for OVI. As such, we find it was not error
for the trial court to determine there was probable cause to support appellant's arrest for
OVI, in violation of R.C. 4511.19(A)(1)(a), operating a vehicle under the influence of
alcohol.
V. Conclusion
{¶ 72} On consideration whereof, the judgment of the Sylvania Municipal Court is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24(A)(4).
Judgment affirmed.
31.
State of Ohio/City of Sylvania
v. Brandon Nation
L-21-1251
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
32.