State v. White , 2014 Ohio 555 ( 2014 )

[Cite as State v. White, 2014-Ohio-555.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-13-27
v.
LARRY L. WHITE, OPINION
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court
Trial Court No. 12 TRC 01916
Judgment Affirmed
Date of Decision: February 18, 2014
APPEARANCES:
Andrew R. Bucher for Appellant
E. Richard Eddy, II for Appellee
Case No. 1-13-27
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Larry L. White brings this appeal from the
judgment of the Lima Municipal Court in Allen County, Ohio, denying in part his
motion to suppress evidence collected at an OVI (operation of a vehicle while
under the influence of alcohol) roadblock, on March 16, 2012. For the reasons
that follow we affirm the judgment of the trial court.
{¶2} On March 16, 2012, between 9 p.m. and midnight, the Ohio State
Highway Patrol operated an OVI checkpoint in Allen County, Ohio. At around
10:14 p.m., White drove into the checkpoint and was approached by Trooper
Matthew Geer of the Ohio State Highway Patrol, Findlay post. Upon talking to
White, Trooper Geer noticed a strong odor of alcoholic beverage coming from
inside White’s vehicle and noticed that White’s face was flushed and his eyes
were bloodshot. (Mot. Hr’g Tr. at 8, July 13, 2012 and Sept. 4, 2012.) Trooper
Geer also recognized White to have slurred speech. (Id.) White admitted that he
had had about three beers that night. He was then asked to pull into the parking lot
and perform three field sobriety tests. (Id. at 8-22.) Based on White’s
performance on those tests, Trooper Geer believed that White was operating under
the influence of alcohol and placed him under arrest. (Id. at 22-24.)
{¶3} Initially, White was placed in a police cruiser, but he was later moved
to a command center vehicle, “a trailer wherein a portable Intoxilyzer 8000 breath-
-2-
Case No. 1-13-27
testing machine was located.” (Id. at 24; R. 24, J. Entry at 3.) Trooper Geer asked
White for his consent to submit to a chemical test and then read him the “BMV
2255” form. (Tr. at 24-25.) After this test showed that White was driving with a
prohibited concentration of alcohol in his system, he was issued a citation for
operating a vehicle under the influence of alcohol. (R. at 24, at 4.) White was
then released. (Id.)
{¶4} White pled not guilty to the charges against him and filed a motion to
suppress, requesting that the trial court exclude the evidence obtained during his
warrantless seizure. (R. at 12.) White requested suppression of the following: (1)
coordination and/or sobriety tests; (2) alcohol and/or drug level tests; (3)
statements taken from or made by White; (4) White’s exercise of his right to
remain silent; (5) observations and opinions of the police officer(s) who stopped
and/or arrested and/or tested White; (6) results of the field sobriety tests performed
by White and/or video or audio recordings of the stop and tests. (R. at 12.) As
one of the reasons for his motion, White contended that the OVI roadblock was
unauthorized and therefore, the stop of his vehicle at the roadblock was
unconstitutional, violating his protection against unreasonable searches and
seizures. He further argued that even if the initial stop was valid, his arrest was
unconstitutional because the field sobriety tests that gave Trooper Geer probable
cause for the arrest did not comply with statutory requirements of R.C.
-3-
Case No. 1-13-27
4511.19(D)(4)(B). White also argued that the breath test was coerced and
improperly performed. He requested an oral hearing on the motion.
{¶5} After conducting a two-day motion hearing, the trial court suppressed
evidence of one of the three field sobriety tests, but it overruled the motion to
suppress in all other respects. (R. at 24.) Subsequently, White entered a plea of
no contest and was found guilty of operating a vehicle while impaired and/or
operating a vehicle with a prohibited blood alcohol content in violation of R.C.
4511.19(A)(1)(a) and (A)(1)(d). (R. at 28, J. Entry OVI Sentence.) He was
subsequently sentenced but the sentence was stayed pending this appeal.
{¶6} White now appeals the trial court’s denial of his motion to suppress
raising five assignments of error.
I. THE TRIAL COURT ERRED WHEN IT DETERMINED
THE OVI ROADBLOCK USED TO STOP APPELLANT
WAS CONSTITUTIONAL
II. THE TRIAL COURT ERRED WHEN IT DETERMINIEND
[sic] THAT APPELLANT'S SUBMISSION TO THE
BREATH TEST WAS NOT A PRODUCT OF COERCION
III. THE TRIAL COURT ERRED WHEN IT DETERMINED
THAT THE 20 MINUTE OBSERVATION PERIOD WAS
SUBSTANTIALLY COMPLIED WITH
IV. THE TRIAL COURT ERRED IN DETERMINING THAT
THE BREATH TEST WAS PROPERLY ADMINISTERED
AND ADMISSABLE [sic] AS THE DRY GAZ WAS
EXPIRED
-4-
Case No. 1-13-27
V. THE TRIAL COURT ERRED IN FINDING THERE WAS
PROBABLE CAUSE TO ARREST MR. WHITE
Standard of Review
{¶7} Before addressing White’s assignments of error we note the applicable
standard of review. An appellate review of the trial court’s decision on a motion
to suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio
App.3d 46, 51, 735 N.E.2d 953 (3d Dist.). We will accept the trial court’s factual
findings if they are supported by competent, credible evidence because the
“evaluation of evidence and the credibility of witnesses” at the suppression
hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582
N.E.2d 972 (1992); Burnside, 2003-Ohio-5372, at ¶ 8; Norman, 136 Ohio App.3d
at 51. But we must independently determine, without deference to the trial court,
whether these factual findings satisfy the legal standard as a matter of law because
“the application of the law to the trial court’s findings of fact is subject to a de
novo standard of review.” Norman, 136 Ohio App.3d at 52; Burnside, 2003-Ohio-
5372, at ¶ 8.
{¶8} With this standard in mind, we proceed to review the issues raised by
White as they pertain to the trial court’s denial of his motion to suppress.
-5-
Case No. 1-13-27
1. First Assignment of Error— Constitutionality of the OVI Roadblock
{¶9} White contends that the OVI roadblock at issue was unconstitutional
because it was based on the request that was “supported only by a conclusory
statement, devoid of facts or empirical data, then approved by a higher divisions
[sic] of the highway patrol.” (App’t Br. at vi.) Therefore, White alleges that his
stop at the checkpoint and the subsequent arrest were in violation of the United
States Constitution and the Ohio Constitution.
{¶10} The Ohio Supreme Court held that the constitutional provisions
affording protection against “unreasonable searches and seizures” are implicated
in cases involving a vehicle stop at a checkpoint “because a vehicle stop at a
highway checkpoint constitutes a ‘seizure’ within the meaning of the Ohio and
United States Constitutions.” State v. Orr, 91 Ohio St.3d 389, 391, 745 N.E.2d
1036 (2001); accord Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450,
110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (“a Fourth Amendment ‘seizure’ occurs
when a vehicle is stopped at a checkpoint”). Yet, highway checkpoints or
roadblocks are not per se unconstitutional and they have been upheld by the
United States Supreme Court and the Ohio Supreme Court. See Sitz, 496 U.S.
444; Orr, 91 Ohio St.3d 389.
{¶11} In 1990, the Supreme Court of the United States established a three-
pronged balancing test by which to determine the constitutionality of the sobriety
-6-
Case No. 1-13-27
checkpoints. See Sitz, 496 U.S. 444. In 2001, the Ohio Supreme Court followed
the Supreme Court of the United States and other federal and state courts, and
applied the three-prong balancing test to a driver’s license checkpoint in Ohio,
noting that the same test is used for sobriety checkpoints and immigration
checkpoints. Orr, 91 Ohio St.3d at 392-393, following Sitz, 496 U.S. 444, United
States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976),
United States v. McFayden, 865 F.2d 1306 (D.C.Cir.1989), and State v. Cloukey,
486 A.2d 143 (Me.1985). Therefore based on Orr, the Ohio standard for
determining the constitutionality of a roadblock, requires a case-by-case
evaluation of “[1] the checkpoint’s intrusion on privacy, [2] the state’s interest in
maintaining the checkpoint, and [3] the extent to which the checkpoint advances
the state interest.” Id. at syllabus, 392-393.
{¶12} In spite of this well-established standard, White claims in his brief
that “[a]n OVI Roadblock is tested for constitutionality in Ohio through the second
district four part test,” established in a 1984 Second Appellate District case, State
v. Goines, 16 Ohio App.3d 168, 474 N.E.2d 1219 (2d Dist.1984).1 (App’t Br. At
5.) The court in Goines quoted the Iowa Supreme Court’s holding:
1
Attempting to boost the authority of Goines, White incorrectly states in his brief that this case, decided in
1984, utilized Sitz, the United States Supreme Court decision that was not decided until six years later, in
1990. (App’t Br. At 5.) He further misstates in his brief that the four-prong test quoted in Goines was
“recently outlined” in the Ohio Supreme Court’s decision State v. Orr, although Orr did not mention the
four-prong standard or the Goines opinion but rather, used the three-prong standard of Sitz, as discussed
above. (Id.)
-7-
Case No. 1-13-27
Where there is no consent, probable cause, or Terry-type reasonable
and articulable suspicion, a vehicle stop may be made only where
there minimally exists (1) a checkpoint or roadblock location
selected for its safety and visibility to oncoming motorists; (2)
adequate advance warning signs, illuminated at night, timely
informing approaching motorists of the nature of the impending
intrusion; (3) uniformed officers and official vehicles in sufficient
quantity and visibility to “show * * * the police power of the
community;” and (4) a predetermination by policy-making
administrative officers of the roadblock location, time, and
procedures to be employed, pursuant to carefully formulated
standards and neutral criteria.2
Id. at 170-171, quoting State v. Hilleshiem, 291 N.W.2d 314, 318 (Iowa 1980).
Alleging that the fourth element of the above standard is not satisfied in the
current case, White urges us to find the roadblock at issue unconstitutional.
{¶13} We recognize that some Ohio courts have used the four-prong
analysis quoted in Goines to determine constitutionality of roadblocks or
checkpoints. For example, the First Appellate District expressly adopted the four-
prong test stating, albeit incorrectly, that it had been “adopted in Ohio by the
Second Appellate District,”3 and classifying it as “a more particular analysis to
2
We note that the Second Appellate District in Goines did not expressly adopt the four-prong standard and
did not analyze the case under the four elements dictated therein although it did quote the Iowa Supreme
Court’s standard. Indeed, the facts, as stated in the Goines opinion, did not support the elements of the
four-prong test; yet, the appellate court affirmed the “designated checkpoint” in the case on the basis that
“[p]rivacy interests of all citizens must at times be surrendered to reasonable demands of society, e.g.,
public safety.” Goines, 16 Ohio App.3d at 172, citing United States v. Villamonte-Marquez, 462 U.S. 579,
103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). Therefore, this standard has not been “adopted” or “established,”
but merely quoted in Goines. Nevertheless, for ease of discussion, we will refer to the four-prong test
throughout this opinion as the “Goines test.”
3
As explained in fn. 2, the Second Appellate District in Goines merely quoted and did not expressly adopt
or apply the four-prong Iowa Supreme Court’s standard from Hilleshiem. See Goines, 16 Ohio App.3d at
170-171, 172 (affirming the checkpoint in the case on the basis that “[p]rivacy interests of all citizens must
at times be surrendered to reasonable demands of society, e.g., public safety”).
-8-
Case No. 1-13-27
determine the constitutionality of sobriety checkpoints” than the three-part test
established by the United States Supreme Court in Sitz. State v. Williams, 181
Ohio App.3d 472, 2009-Ohio-970, 909 N.E.2d 667, ¶ 18 (1st Dist.). See also State
v. Park, 5th Dist. Licking No. 12-CA-25, 2012-Ohio-4069, ¶¶ 11-23; State v. Hall,
5th Dist. Ashland No. 03-COA-064, 2004-Ohio-3302, ¶¶ 18-25.
{¶14} Conversely, other Ohio courts recognized the four-prong test from
Goines as an elaboration of the Orr test, or a useful tool for analyzing the intrusion
element in the three-prong balancing test, without holding that a failure to satisfy
the test is a constitutional violation. For example, the Tenth District Court of
Appeals held that “[i]n measuring the potential subjective impact upon motorists
of the checkpoint, we find useful the first three elements of the test set forth by the
Iowa Supreme Court and relied upon in Goines.” State v. Bauer, 99 Ohio App.3d
505, 512, 651 N.E.2d 46 (10th Dist.1994) (rejecting an idea that a checkpoint must
be publicized with information including “all the specifics of the checkpoint
locations and duration” in order to be constitutional). That district court also
stated that the Goines test provided “guidelines for determining interference with
personal liberties.” (Emphasis added.) State v. Nelson, 10th Dist. Franklin No.
01AP-699, 2002 WL 356317, *3.
{¶15} Nevertheless, neither the United States Supreme Court nor the Ohio
Supreme Court adopted a similar analysis although they addressed the issue of
-9-
Case No. 1-13-27
constitutionality of roadblocks after Goines and Hilleshiem. Therefore, we hold
that the proper test to be applied in this case is the three-prong case-by-case
balancing standard established in Orr and Sitz. Hence, the trial court was required
to evaluate the following three elements to determine whether the checkpoint
established by the Ohio State Highway Patrol was constitutional: (1) the
checkpoint’s intrusion on privacy, (2) the state’s interest in maintaining the
checkpoint, and (3) the extent to which the checkpoint advanced the state interest.
Orr, 91 Ohio St.3d 389, at syllabus, 392-393, citing Sitz, 496 U.S. 444. The trial
court applied this balancing standard to the case at issue and found that “the
stopping of an individual at the sobriety checkpoint in question constituted a
minimal intrusion into the privacy of the individual”; “[t]he State’s interest in
maintaining such a checkpoint is * * * the safety of the motoring public by taking
those persons operating vehicles under the influence of alcohol and/or drugs off
the roadway [and it] is a very important interest”; and that “[t]he interests of the
State of Ohio were met by this checkpoint.”4 (R. at 24, at 5.)
{¶16} Under the applicable standard, we must review de novo whether the
three elements of the Orr balancing test weigh in favor of upholding the
constitutionality of the roadblock at issue. White does not dispute the trial court’s
4
The trial court then recognized that the standard quoted in Goines had not been adopted in this appellate
district. Yet, the trial court found the standard persuasive and therefore, analyzed the current case under the
four-prong test as well, concluding that each of its elements was satisfied. (R. at 24, at 5-6.) Even though
we do not find the trial court’s analysis under Goines to be erroneous, we refuse to adopt the four-prong
test in a way suggested by White, as a means of testing constitutionality of an OVI roadblock in Ohio.
-10-
Case No. 1-13-27
conclusion as to the state’s important interest in maintaining an OVI checkpoint
and such interest has previously been found to satisfy the second prong of the
Orr/Sitz analysis. See Sitz, 496 U.S. at 451; Nelson, 2002 WL 356317, at *3; State
v. Eggleston, 109 Ohio App.3d 217, 224, 671 N.E.2d 1325 (2d Dist.1996).
Therefore, we also hold that the first prong weighs in favor of the checkpoint’s
validity.
{¶17} Next, we address the third prong, which is the extent to which the
checkpoint advances the state interest, “determined by the effectiveness of the
roadblock.” Nelson, 2002 WL 356317, at *3; Orr, 91 Ohio St.3d at 394. The trial
court found that in support of this element was the fact that “more than just the
defendant were shepherded to the holding area after showing signs of impairment
for further testing in just a brief time that the defendant was being questioned and
tested.” (R. at 24, at 5.) This factual finding is supported by the record. (See
State’s Ex. B.) Furthermore, checkpoints as a “system” have been found to
reasonably advance “the State’s interest in preventing drunken driving.” Sitz, 496
U.S. at 444-455 (recognizing expert testimony stating “that experience in other
States demonstrated that, on the whole, sobriety checkpoints resulted in drunken
driving arrests of around 1 percent of all motorists stopped”). Accordingly, the
third prong of the Orr analysis weighs in favor of the roadblock.
-11-
Case No. 1-13-27
{¶18} White’s main contention seems to go to the second prong of the Orr
test, the checkpoint’s intrusion on privacy, since the issue addressed by the four-
prong Goines test, and challenged by White, is the validity of the checkpoint
procedures as they limit the checkpoint’s intrusion on privacy. The United States
Supreme Court in Sitz “did not establish precise limits to the length and procedure
employed at an initial checkpoint stop.” Bauer, 99 Ohio App.3d at 511. Neither
did the Ohio Supreme Court in Orr adopt a precise standard for determining
whether the checkpoint was procedurally proper, even though the Goines opinion
and its four-prong standard predated Orr. Instead, the Sitz court evaluated the
guidelines governing checkpoint operation that minimized the discretion of the
officers on the scene, the brief duration of the stop, and the fact that uniformed
police officers stopped every approaching vehicle. Sitz, 496 U.S. at 451-453. The
court then concluded that the intrusion caused by the checkpoint was not
unreasonable. Id. at 451-453; see also Eggleston, 109 Ohio App.3d at 226-227
(“When evaluating the lawfulness of the checkpoint, we are most concerned with
the guidelines, duration, and intrusiveness of the initial stop. Sitz, supra.”). The
Ohio Supreme Court in Orr analyzed the specific procedures employed by the city
of Dayton without reference to “a predetermination by policy-making
administrative officers of the roadblock location, time, and procedures to be
employed, pursuant to carefully formulated standards and neutral criteria,” as
-12-
Case No. 1-13-27
would be required under Goines and as White would like us to apply. See Orr, 91
Ohio St.3d at 393. Therefore, rather than adopting a rigid standard for analyzing
the intrusion on privacy in OVI roadblock cases, we will review the specific
procedures used by the Ohio State Highway Patrol and weigh them against the
state’s interest in preventing operating a vehicle under the influence.
{¶19} The trial court made the following findings of fact regarding
procedures employed by the Ohio State Highway Patrol at their roadblock:
The Court would find from the credible testimony presented that an
OVI check point was set up under the direction of the Ohio State
Highway Patrol on March 16, 2012 on State Route 309, between
Robb Avenue, and Cole Street in American Township, Allen
County, Ohio. It was operational from 9:00 P .M. to midnight on that
date. Officers from several agencies assisted in the running of such
checkpoint, including Trooper Mathew Geer of the Findlay post. All
were under the direction of Lieutenant Brant Zemelka, post
commander of the Lima post.
Lieutenant Zemelka, as post commander, requested permission from
District Headquarters of the Ohio State Highway Patrol in Findlay,
Ohio to conduct such an OVI checkpoint and was ultimately granted
permission from, not only the District, but also the State
headquarters in Columbus, Ohio. His reasoning for such request and
his procedural outline for the checkpoint’s operation were admitted
as State’s “Exhibit H”. While part of that form was generated by the
Lieutenant specifically for this particular checkpoint, much of the
form was preprinted and generic in nature. It is the form used by the
Ohio State Highway Patrol when seeking permission to run such an
operation. It contained no statistical data regarding why the
checkpoint was placed where it was placed but merely generalities
concerning the heavy traffic pattern in the area, the traffic accidents
in the area and arrests for OVI in the area.
-13-
Case No. 1-13-27
Prior to the operation of the checkpoint, motorists and the general
public were alerted that such an operation was to take place. By
press releases to local media on March 12, 2012, March 14, 2012
and March 16, 2012 (State’s “Exhibit I”), the checkpoint was
announced for release to the public with the last one identifying
State Route 309, along with the time. Albeit, the exact location on
State Route 309 was not given, it is well known that said highway
traverses almost the entire width of Allen County from east to west.
The exact location where the checkpoint was set up is a heavily
traveled roadway between Lima’s city limit and the Lima Mall.
Advanced warning signs alerting motorists of the OVI checkpoint
were located at the intersections of State Route 309 and Robb Ave.,
affording those traveling eastbound to exit onto Robb Avenue and
avoid the checkpoint, and State Route 309 and Cole Street, affording
those traveling westbound the opportunity to turn onto that street,
and, also, avoid the checkpoint. In either event, motorists were not
required to enter the checkpoint area.
***
The checkpoint location, west of Cole Street and east of Robb
Avenue, was easily visible to oncoming motorists and in a safe area,
and that it is a straight stretch of road easily navigable to the
motoring public. The area was extremely well lit and had adequate
signage informing the public of what was taking place at access for
them to avoid the area by turning onto either Cole Street, or Robb
Avenue prior to entering the restricted zone. The numerous police
cars and over a dozen officers from various departments could be
seen easily by the public and showed a sufficient police power of the
community.
Lt. Zemelka testified that the criteria used to select the checkpoint
location included the fact that it was a high traffic area with a history
of alcohol-related crashes and OVI arrests. * * * He also testified as
to the procedure to be used on vehicles stopped within the
checkpoint (State’s "Exhibit H”). * * * On cross-examination, it was
admitted that no statistics were submitted in the request to support
the assertions made about the particular area of the alcohol
checkpoint.
-14-
Case No. 1-13-27
* * * As was testified by Trooper Geer, the driver was approached
and explained the purpose of the checkpoint, given a pamphlet on
the dangers of operating a vehicle under the influence, and, if no
odor of alcohol was detected or any other sign of impairment noted,
the driver was sent on his or her way. Although no testimony was
given as to the exact time of such stop, the Court can reasonably
conclude that it was minimal.
(R. at 24, at 1-2, 4-5.)
{¶20} Accepting the trial court’s unchallenged factual findings, which are
supported by evidence in this case (see, e.g., Tr. at 78-88), we hold that the
procedures described above were reasonably sufficient to satisfy the constitutional
protections against unreasonable searches and seizures. These procedures include
all of the elements found sufficient by the Ohio Supreme Court in Orr: advance
warning of the checkpoint’s presence, “[v]isible signs of the officers’ authority,”
“at least eleven officers, with police cruisers present,” immediate advice of the
purpose of the stop, brief duration of the stop, and an explanatory pamphlet given
to the driver. See Orr, 91 Ohio St.3d at 393. We note that this particular
checkpoint had additional elements, not noted by the Orr court: approval of the
checkpoint by the district and state headquarters of the Ohio State Highway Patrol,
press releases announcing the checkpoint ahead of time, and an opportunity to
avoid the checkpoint area. Furthermore, a challenge very similar to the one White
advances, based on allegedly insufficient data to support the roadblock’s location,
time, and procedures, was rejected by the Tenth District Court of Appeals, which
-15-
Case No. 1-13-27
utilized the four prongs of the Goines test in Nelson, 2002 WL 356317, at *4.
Therefore, we are inclined to hold that “[c]learly, [this checkpoint] constituted a
very limited intrusion into travelers’ privacy and sense of security.” See Orr, 91
Ohio St.3d at 393.
{¶21} In sum, we hold that the trial court did not err when it determined
that the OVI roadblock used to stop White was constitutional, because “the
balance of the State’s interest in preventing [operation of a vehicle while under the
influence of alcohol], the extent to which this system can reasonably be said to
advance that interest, and the degree of intrusion upon individual motorists who
are briefly stopped, weighs in favor of the state program.” See Sitz, 496 U.S. at
455.
{¶22} Based upon the foregoing, White’s first assignment of error is
overruled.
2. Fifth Assignment of Error—Probable Cause to Arrest
{¶23} We opt to take this assignment of error out of order as it has bearing
on our resolution of the second assignment of error. White argues that the single
“failed” field sobriety test was insufficient to create probable cause for his arrest
and therefore, his arrest was unconstitutional. If White’s arrest was in fact
unconstitutional, all evidence derived from the arrest must be suppressed as
illegally obtained. See State v. Flanagan, 4th Dist. No. 03CA11, 2003-Ohio-6512,
-16-
Case No. 1-13-27
¶ 7, citing State v. Daily, 4th Dist. No. 97CA25, 1998 WL 18139, *2 (Jan. 15,
1998), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
{¶24} We begin by recognizing that the arrest at issue was conducted
without a warrant and as such, it required Trooper Geer to have probable cause to
believe that a criminal offense had been committed or was being committed by
White. See State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858,
¶ 66, citing Gerstein v. Pugh, 420 U.S. 103, 111-112, 95 S.Ct. 854, 43 L.Ed.2d 54(1975). “In determining whether the police had probable cause to arrest an
individual for [OVI], we must consider whether, at the moment of arrest, the
police had 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. Dillehay, 3d Dist. Shelby No. 17-12-07,
2013-Ohio-327, ¶ 19, quoting State v. Thompson, 3d Dist. No. 14-04-34, 2005-
Ohio-2053, ¶ 18; State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000),
superseded by statute on other grounds as stated in State v. Boczar, 113 Ohio
St.3d 148, 863 N.E.2d 155, 2007-Ohio-1251, ¶ 10. We will evaluate the existence
of probable cause in this case under the totality of the circumstances approach.
Id., citing State v. Cromes, 3d Dist. Shelby No. 17-06-07, 2006-Ohio-6924, ¶ 38.
Under this approach, an arresting officer may “draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
-17-
Case No. 1-13-27
information available to them that ‘might well elude an untrained person.’ ”
Cromes, 2006-Ohio-6924, at ¶ 38, quoting United States v. Arvizu, 534 U.S. 266,
273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and United States v. Cortez, 449 U.S.
411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
{¶25} Trooper Geer testified that he was a certified peace officer who had
worked for the Highway Patrol in traffic enforcement for over six years. (Tr. at 3,
5.) He had been trained in investigation and detection of operating under the
influence offenses and had participated in arrests for impaired drivers between 800
to 1000 times. (Tr. at 4-5, 10-12.) The trial court found credible Trooper Geer’s
testimony that there was “a strong odor of alcoholic beverage emanating from
inside [White’s] vehicle,” as well as his observation that White had “flushed face,
bloodshot eyes, and somewhat slurred speech.” (R. at 24, at 2.) The trial court
considered Geer’s testimony that he had observed “a ‘strong’ odor of alcoholic
beverage coming from the defendant’s breath, even after separating him from the
vehicle and its two other passengers.” (Id. at 6.) The trial court acknowledged
White’s admission that he had consumed three beers prior to driving, but it also
recognized that White did not demonstrate “ ‘bad’ driving.” (Id. at 2, 6.)
{¶26} With respect to the field sobriety tests, Geer testified that during the
-18-
Case No. 1-13-27
administration of the Horizontal Gaze Nystagmus (HGN)5 test he had observed
White’s eyes still being bloodshot and glassy. (Tr. at 16.) He further observed a
positive result on six out of six clues present in the test, which included a lack of
smooth pursuit, nystagmus at maximum deviation, and onset nystagmus prior to
forty-five degrees. (Tr. at 15-17.) Geer stated that, based on his training and
experience, the more of the above described clues that are observed during the
administration of the test, the more the subject had to drink. (Id. at 17.) Geer
testified that he had never seen anyone test below the legal limit on alcohol
content after exhibiting six out of six clues. (Id.) The trial court excluded the
results of the HGN test for failure to substantially comply with National Highway
Traffic Safety Administration (NHTSA) standards.
{¶27} The trial court admitted “the heel-to-toe test,” and concluded that
White “flunked” it because he started it “prior to being instructed to do so, he
moved his feet to maintain balance during the instructional phase and * * * he
5
For the purpose of this opinion we find it necessary to quote the explanation of the HGN test, provided in
State v. Homan, 89 Ohio St.3d 421, 422, 732 N.E.2d 952 (2000), fn. 1:
The HGN test is one of several field sobriety tests used by police officers in detecting
whether a driver is intoxicated. “Nystagmus” is an involuntary jerking of the eyeball.
“Horizontal gaze nystagmus” refers to a jerking of the eyes as they gaze to one side. The
position of the eye as it gazes to one side is called “maximum deviation.” In
administering the test, an officer takes some object, a pen for example, and places it
approximately twelve to fifteen inches in front of the suspect's nose. The officer then
observes the suspect's eyes as they follow the object to determine at what angle
nystagmus occurs. The more intoxicated a person becomes, the less the eyes have to
move toward to the side before nystagmus begins. Cohen & Green, Apprehending and
Prosecuting the Drunk Driver: A Manual for Police and Prosecution (1997), Section 4.04
[2][a]. Other signs of intoxication include distinct nystagmus at maximum deviation and
the inability of the suspect's eyes to smoothly follow the object. See 1 Erwin, Defense of
Drunk Driving Cases (3 Ed.1997), Sections 10.04[5] and 10.06[1].
-19-
Case No. 1-13-27
failed to touch heel to toe on six of these steps going forward and back.” (R. at 24,
at 2.) The trial court also admitted “the one-leg stand test,” concluding that White
“did not flunk [it] under NHTSA standards” although he “put his foot down one
time at approximately count 23, and * * * swayed for balance while taking the
test.”6 (Id.) Because of the trial court’s exclusion of the HGN test and its finding
that White did not “flunk” the one-leg stand test, White now argues that the trial
court’s finding of probable cause was based on one “failed” field sobriety test
only.
{¶28} We have previously held that factors that may be taken into account
in probable cause determination are not limited to the field sobriety tests:
While field sobriety tests must be administered in strict compliance7
with standardized procedures, probable cause to arrest does not
necessarily have to be based, in whole or in part, upon a suspect’s
poor performance on one or more of these tests. The totality of the
facts and circumstances can support a finding of probable cause to
arrest even where no field sobriety tests were administered or where,
as here, the test results must be excluded for lack of strict
compliance.
State v. Ferguson, 3d Dist. Defiance No. 4-01-34, 2002 WL 596115, *3, citing
Homan, 89 Ohio St.3d at 427. Furthermore, even when the test results are
excluded, the testimony about the defendant’s performance during the
6
Although the trial court used the term “flunk” when referring to the field sobriety tests, we recognize that
the field sobriety tests are not “passed” or “failed” but rather, they are considered by the number of clues
that are exhibited by the suspect.
7
Although the above quote uses “strict compliance,” later cases clarified that strict compliance is no longer
required and substantial compliance with the testing procedures is sufficient. See State v. Plummer, 22
Ohio St.3d 292, 490 N.E.2d 902 (1986), syllabus.
-20-
Case No. 1-13-27
administration of the excluded tests is admissible for the purpose of determining
probable cause under the totality of the circumstances approach:
We see no reason to treat an officer’s testimony regarding the
defendant’s performance on a nonscientific field sobriety test any
differently from his testimony addressing other indicia of
intoxication, such as slurred speech, bloodshot eyes, and odor of
alcohol. In all of these cases, the officer is testifying about his
perceptions of the witness, and such testimony helps resolve the
issue of whether the defendant was driving while intoxicated.
Unlike the actual test results, which may be tainted, the officer’s
testimony is based upon his or her firsthand observation of the
defendant’s conduct and appearance.
State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶¶ 14-15;
State v. Griffin, 12th Dist. Butler No. CA2005-05-118, 2006-Ohio-2399, ¶ 11
(“Regardless of a challenge to field sobriety tests, a police officer may testify
regarding his observations made during administration of the tests.”). Therefore,
Trooper Geer’s observations about all administered field sobriety tests, “the failed
one”, “the passed one,”8 and the excluded one, are admissible for the purpose of
determining whether the trial court erred when it found there was probable cause
to arrest White on March 16, 2012.
{¶29} Under the totality of the circumstances we cannot conclude that the
trial court erred in its finding that it was reasonable for Trooper Geer to believe
that White was under the influence of alcohol, based on his experience and
8
See fn. 6, supra, regarding the terminology applicable to the field sobriety tests.
-21-
Case No. 1-13-27
specialized training. At the moment of the arrest, Trooper Geer had reasonably
trustworthy information indicating that White had had three beers prior to driving.
He observed White’s flushed face, bloodshot eyes, and slurred speech, as well as
an odor of alcoholic beverage coming from his breath. In addition to exhibiting a
number of clues during one field sobriety test, White swayed for balance and put
his foot down during the one-leg stand test. All these cumulative clues could
sufficiently cause a prudent person to believe that White was operating a vehicle
under the influence.
{¶30} Accordingly, White’s fifth assignment of error is overruled.
3. Second Assignment of Error—Consent to Take the Breath Test and
Coercion
{¶31} In the second assignment of error, White contends that his consent to
the breath test was a product of coercion because “the clear meaning of the
officers [sic] words were [sic] that further cooperation would prevent appellant
from being jailed and the immediate request after that coercive language was to
request a breath test.”9 (App’t Br. at vi.) White takes issue with a few of the
statements made by Trooper Geer during the stop. In particular, after informing
White that he was being placed under arrest for OVI, Trooper Geer stated, “As
9
We note that the record shows that the request for a breath test was not made immediately after the
statements regarding cooperation. See State’s Ex. B; Tr. at 24, 36 (testifying that the request to submit to
the breath test was made in the command center vehicle, while the statements regarding cooperation were
made prior to going to the command center, when White was still in the police cruiser).
-22-
Case No. 1-13-27
long as you remain cool and cooperative with me you are going to go home
tonight * * * I'll just issue you a ticket and I’ll not have to take you to jail.” (Tr. at
36.) White asserts that these statements were coercive and that his consent to the
breath test, given later that night,10 was the result of these allegedly coercive
statements. Of note, at no point in these proceedings has White alleged or proved
that he actually felt coerced or felt that his free will was overborne. He seems to
rely on the assumption that Trooper Geer’s statements were coercive on their face,
and on Geer’s admission, on cross-examination, that he “could see” “someone
believing that they needed to take the breath test or they’re going to jail,” even
though he did not mean it that way. (Tr. at 37-38.)
{¶32} A chemical test, such as a breath test, is a search under the Fourth
Amendment to the United States Constitution. See Schmerber v. California, 384
U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Groszewski, 183
Ohio App.3d 718, 2009-Ohio-4062, 918 N.E.2d 547 (6th Dist.), citing Schmerber;
Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1449 (9th Cir.1986). A
warrantless search is per se unreasonable unless certain “specifically established
and well delineated exceptions” exist. City of Xenia v. Wallace, 37 Ohio St.3d
216, 218, 524 N.E.2d 889 (1988), quoting Coolidge v. New Hampshire, 403 U.S.
443, 454–455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389
10
See fn. 9.
-23-
Case No. 1-13-27
U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The burden is on the state to
establish that a warrantless search is valid under one of those exceptions. Id.{¶33} In this case, the exception at issue is consent. Under the implied
consent statute in Ohio, the State’s burden is satisfied because
[a]ny person who operates a vehicle * * * upon a highway * * * shall
be deemed to have given consent to a chemical test or tests of the
person’s whole blood, blood serum or plasma, breath, or urine to
determine the alcohol * * * content of the person’s whole blood,
blood serum or plasma, breath, or urine if arrested for [operating a
vehicle under the influence].
R.C. 4511.191; State v. Turner, 11th Dist. Portage No. 2007-P-0090, 2008-Ohio-
3898, ¶ 44 (holding that under R.C. 4511.191 “an OVI suspect is already deemed
to have consented to the breath test”).
{¶34} White first contends that the implied consent statute does not apply
“unless the Defendant was validly arrested by an officer having reasonable
grounds to believe the Defendant was operating a vehicle while under the
influence of alcohol and/or drugs of abuse and was properly advised of the Ohio
Implied Consent Provisions.” (App’t Br. at 10.) As we have already established
in our analysis of the fifth assignment of error, White was validly arrested.
Further, the trial court found that White was read the BMV 2255 form, which
explained his right to request his own chemical test and advised him of the
consequences of taking or refusing to take the test. (R. at 24, at 3; Tr. State’s Ex.
C (including White’s acknowledgment of the form having been read to him).)
-24-
Case No. 1-13-27
This factual finding is supported by the record and therefore, the implied consent
statute, R.C. 4511.191, applies in this case.
{¶35} White next contends that the implied consent warnings in this case
were misstatements of law and therefore, they resulted in the consent being
involuntary and thus, evidence of breath alcohol content was unconstitutionally
obtained. (App’t Br. at 10.) There is no evidence to support an allegation that the
implied consent warnings, as read from BMV Form 2255, were read improperly or
misstated. In addition to Trooper Geer’s testimony regarding the reading of the
form, White and a witness signed an acknowledgment that the advice was shown
and read to White. (Tr. State’s Ex. C and D.)
{¶36} White attempts to argue, however, that Trooper Geer’s statements
constituted warnings related to the implied consent and they were misstatements
of law because they indicated that refusal to take the breath test is an arrestable
offense. White’s argument is misplaced because there is no reason to treat
Trooper Geer’s statements as implied consent warnings where actual warnings
were properly given in accordance with the statute. See R.C. 4511.192(B)
(prescribing the language contained in BMV Form 2255). Furthermore, there is
no link between those statements and the later request for breath test. Trooper
Geer merely asked White for cooperation and denied indicating that the lack of
corporation or refusal to take the breath test would result in an arrest. (See Tr. at
-25-
Case No. 1-13-27
37-38.) Thus, White’s argument that these comments implied that he would be
imprisoned if he did not take the breath test is based on a number of much
attenuated inferences, unsupported by any evidence in the record. Trooper Geer
made no misstatements of law as they relate to the implied consent warnings.
{¶37} Moreover, the argument fails because
arguments that an officer’s misinformation or other statements
coerced a suspect’s consent to submit to a chemical test have been
consistently rejected by courts of appeal. See e.g. Columbus v.
Dixon, 10th Dist. No. 07AP-536, 2008-Ohio-2018, at ¶ 7 (“despite
the fact that the police officers informed appellant that if she refused
the test she would be held in custody for 12 to 24 hours, we find that
the officers did not coerce appellant into taking the Breathalyzer
test”); Wickliffe v. Hromulak, 11th Dist. No.2000-L-069, 2001 Ohio
App. LEXIS 1835, at *13 (“[t]he fact that appellant * * * failed to
recognize that he would be subject to penalties beyond the ninety-
day administrative suspension * * * does not call into question the
validity of his consent in submitting to the BAC test”); State v. Tino,
1st Dist Nos. C-960393, C960394, and C-960395, 1997 Ohio App.
LEXIS 747, at *6 (“[t]he results of the [chemical] test * * * were
admissible in the disposition of appellant’s criminal case regardless
of whether the ALS provisions were properly communicated”).
State v. Morgan, 11th Dist. Portage No. 2008-P-0098, 2009-Ohio-2795, ¶ 67; see
also State v. Eaton, 3d Dist. Auglaize No. 2-10-10, 2010-Ohio-6065, ¶ 15-17, fn. 2
(citing the above authorities and rejecting an argument that an officer’s
“misstatement regarding the per se blood-alcohol limit for commercial drivers”
rendered “involuntary” the defendant’s refusal to submit to a chemical test).
{¶38} Since there were no irregularities in either White’s arrest or the
implied consent warnings read to him, the implied consent was valid and the State
-26-
Case No. 1-13-27
was not required to demonstrate “by ‘clear and positive’ evidence that consent was
freely and voluntarily given,” as White contends. (App’t Br. at 8.)
{¶39} Nevertheless, the trial court addressed White’s argument regarding
the consent being improperly coerced and determined that the consent was not a
result of coercion. (R. at 24, at 3, 9.) “The question of whether consent to a
search was voluntary or the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of the circumstances.” State v.
Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 99, citing
Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854(1973). The State established by unopposed testimony of Trooper Geer that White
was asked to submit to a breath test. (See Tr. at 24, 26.) Trooper Geer testified
that White “considered whether or not to take the test for a period of time before
consenting to take it.” (R. at 24, at 9.) There was no testimony to contradict the
State’s version of events and no evidence that White felt coerced. Looking at all
the circumstances, the trial court found that White consented and that the test was
taken voluntarily. (R. at 24, at 3, 9.) We hold that, under the totality of the
circumstances, the record supports the trial court’s conclusion.
{¶40} Based upon the foregoing discussion, White’s second assignment of
error is overruled.
-27-
Case No. 1-13-27
4. Third Assignment of Error—Twenty-Minute Wait Period Prior to Breath
Test
{¶41} The third assignment of error challenges the admissibility of the
breath test results due to an alleged failure to comply with the prescribed
procedural requirement of the twenty-minute observation period prior to testing.
This challenge is based on the regulation that breath samples “shall be analyzed
according to the operational checklist for the instrument being used.” Ohio
Adm.Code 3701-53-02(D); R.C. 4511.19(D)(1). It has been recognized that one
of the elements on the checklist is “that the person being tested be observed for
twenty minutes before the test to prevent the oral intake of any material.” State v.
Siegel, 138 Ohio App.3d 562, 566-567, 741 N.E.2d 938 (3d Dist.). This
requirement operates “to eliminate the possibility that the test result is a product of
anything other than the subject’s deep lung breath.” State v. McAuley, 8th Dist.
Cuyahoga No. 76720, 2000 WL 1038186, *4 (July 27, 2000); accord State v.
Steele, 52 Ohio St.2d 187, 191, 370 N.E.2d 740 (1977); State v. Camden, 7th Dist.
Monroe No. 04 MO 12, 2005-Ohio-2718, ¶ 13, quoting Bolivar v. Dick, 76 Ohio
St.3d 216, 218, 667 N.E.2d 18 (1996). Strict compliance with the twenty-minute
observation period is not required, however, as the courts require substantial
compliance. See Bolivar, 76 Ohio St.3d at 218; Camden, 2005-Ohio-2718, at ¶
14; McAuley, 2000 WL 1038186, at *4; State v. Holly, 135 Ohio App.3d 512, 515,
734 N.E.2d 869 (12th Dist.1999).
-28-
Case No. 1-13-27
{¶42} The trial court made the following factual findings relevant to this
assignment of error:
At the checkpoint diversion area, there was a “command center”
trailer wherein a portable Intoxilyzer 8000 breath-testing machine
was located. This allowed the arresting officers to give a BAC test
on scene without transporting defendants to the Ohio Highway
Patrol post. From the time stamp of the video, the Court would find
that the defendant was under surveillance from 10:14 P.M. until the
test was begun at 10:47 P.M. with the exception of a total of
approximately 55 seconds when Trooper Geer exited the command
center to briefly speak with another trooper. When the defendant was
inside the patrol car prior to going to the command center, the
trooper was just outside and able to keep the defendant in view
through the windshield and side windows. There is no evidence that
defendant ingested anything during any time that the troopers were
not physically with him.
(R. at 24, at 3.)
The first attempt to give the defendant a breath test was begun at
10:41 P .M.11 but was terminated one minute later when an
interference was detected, which automatically shut down the
machine (Defendant’s “Exhibit l”).12
Thereafter, a second test was begun at 10:43 P.M. that was
completed at 10:54 P.M..
(Id.)
In the instant case, defendant was placed in the patrol vehicle and
then the command center of the alcohol checkpoint, where the
Intoxilyzer 8000 was located. The video, by use of the time stamp
thereon, shows that he was out of direct observation by Trooper
11
Although this finding is not challenged here, we note that Trooper Geer testified that the first test was
started at 10:37 p.m., but the first air blank was blown at 10:41 p.m. (Tr. at 45; see also R. at 22, Def.’s
Proposed Findings of Facts and Conclusions of Law, Ex. 1.)
12
It appears that the trial court refers to an exhibit that was attached to R. at 22, Def.’s Proposed Findings
of Facts and Conclusions of Law, as there is no “Defendant’s ‘Exhibit 1’” attached to the Transcript.
-29-
Case No. 1-13-27
Geer for 52 seconds of the [20-minute] period he was to be watched
prior to the test being administered. While in the cruiser, defendant
is not on camera, but he was on camera while in the command center
and he could not be seen to put anything in his mouth during that
period. As to the period of time in the cruiser, there was no evidence
submitted that would lead a reasonable person to believe that he had
ingested anything that would have affected the test. The Court would
find that the defendant was personally observed for 95.67% of the
time required by the rule and no evidence was submitted giving any
indication that during the time he was not personally observed that
he did ingest anything that would have affected the test. Therefore,
the Court would conclude that the State of Ohio, substantially
complied with the requirement of the administrative rule concerning
the 20-minute observation period in this particular case.
(Id. at 10.)
In the instant case, the defendant was stopped at the sobriety
checkpoint at 10:14 P.M. on March 16, 2012. The Intoxilyzer 8000
(OH-5) breath test was administered at 10:43 P.M. * * *.
(Id. at 11.)
In this particular test, Trooper Geer followed the operational
checklist as shown on the machine's screen. It ran an air blank
showing clear and performed its diagnostic check and a second air
blank run at 10:47 P.M. on March 16, 2012, and then performed a
dry gas control test within standard. It then ran an air blank test
showing clear and the defendant’s sample of breath gave a BAC
result of .120 at 10:49 P.M .. Two more air blanks were run showing
the machine clear of any residual alcohol and a second sample of the
defendant’s breath was given at 10:53 P.M., showing a BAC result
of .120. The machine again cleared itself of any residual alcohol and
a second dry gas control was run showing it to be within standard at
10:54 P.M .. The machine then cleared itself again, of residual
alcohol and the test was concluded.
(Id. at 12.)
-30-
Case No. 1-13-27
{¶43} We first note that there seems to be some discrepancy in the above
quoted sections of the trial court’s findings with respect to the time that the breath
tests were administered. After reviewing the evidence, we clarify that according
to the first Subject Test Report, although the administration of the first test began
at 10:37:25 p.m., the first air blank was blown at 10:41 p.m. and the second air
blank was blown at 10:42 p.m. (See R. at 22, Def.’s Proposed Findings of Facts
and Conclusions of Law, Ex. 1; see also Tr. at 45.) This Report is marked with
words “Interferent Detect.” (Id.) The second Subject Test Report offered in
evidence shows that the administration of the second test was begun at 10:43 p.m.,
the first air blank was blown at 10:47 p.m., the first subject sample was received at
10:49 p.m., and the second subject sample was received at 10:53 p.m. (State’s Ex.
F.) This test was concluded with a dry gas control and an air blank at 10:54 p.m.
(Id.) Therefore, we recognize that although the administration of the second test
began at 10:43 p.m., White did not actually start performing this test until 10:47
p.m. Therefore, the trial court’s finding on page 3 of the Judgment Entry, that “the
test was begun at 10:47 P.M.” is correct and is supported by the record.
{¶44} White challenges the trial court’s finding that the break in the
observation period was only about fifty seconds. (App’t Br. at 13.) In this
respect, the trial court found that the break in the observation period occurred after
White had been placed in the command center, “when Trooper Geer exited the
-31-
Case No. 1-13-27
command center to briefly speak with another trooper,” which the video evidence
shows to be after 10:30 PM. (R. at 24, at 3; State’s Ex. B.) The trial court found
that White “was on camera while in the command center and he could not be seen
to put anything in his mouth during that period.” (R. at 24, at 10.) This finding is
not challenged on appeal. White asserts, however, that there was a separate three-
minute period when he was not observed, immediately after being placed in the
police cruiser, between 10:25:30 p.m. and 10:28:30 p.m. (App’t Br. at 13.)
{¶45} The record includes a video from a camera that was installed in the
police cruiser in which White was kept prior to being moved to the command
center. (State’s Ex. B.) After reviewing the video evidence, we recognize that
Trooper Geer left the vehicle’s immediate vicinity at 10:25:34 p.m. and he can be
seen returning at 10:27:26 p.m., which is less than two minutes later. (Id.; see also
Tr. at 34-35.) During that time, Trooper Geer can be seen leaning into another car
and talking on the phone, but there are also moments when he is out of the
camera’s reach. (Id.) Although we cannot say that White was out of Trooper
Geer’s sight for the entire two minutes, it is clear that there were moments when
Trooper Geer was not watching him. Furthermore, Trooper Geer admitted that he
did not personally monitor White all the time. (Tr. at 34, 41.) Therefore, the trial
court’s finding on page 3, stating that “[w]hen the defendant was inside the patrol
car prior to going to the command center, the trooper was just outside and able to
-32-
Case No. 1-13-27
keep the defendant in view through the windshield and side windows,” is not
supported by the record.
{¶46} Nevertheless, even if we accept White’s suggestion that the two-
minute interruption in observation mandated a “restart in the required 20 minute
observation period,” there was at least nineteen and a half minutes of monitoring
from 10:27:26 p.m., when Trooper Geer returned, until 10:47 p.m. when the first
air blank was blown, and at least twenty-one and a half minutes until the first
breath sample was received at 10:49 p.m. Therefore, the State substantially
complied with the requirement of a twenty-minute observation when it proved that
White was watched between 10:27:26 p.m. and 10:49 p.m.
{¶47} White next argues that a separate twenty-minute observation period
was required after the first attempt to administer the test detected interference.
Similar suggestions have been consistently rejected by the courts in Ohio. See
State v. Householder, 181 Ohio App.3d 269, 2009-Ohio-826, 908 N.E.2d 987, ¶¶
11, 22 (5th Dist.) (citing decisions by other Ohio courts that rejected a suggestion
that the observation period restarts after an invalid sample); State v. Reiger, 5th
Dist. Fairfield No. 02CA30, 2002-Ohio-6673, ¶¶ 8-16; State v. Gigliotti, 6th Dist.
Erie No. E-99-081, 2000 WL 1867265, *6 (Dec. 22, 2000) (holding that a
memorandum from the Ohio Department of Health that required the observation
period to be restarted after an invalid sample did not constitute a regulation and
-33-
Case No. 1-13-27
was not enforceable); State v. Bosier, 12th Dist. Clinton No. CA99-11-036, 2000
WL 1050976, *2 (July 24, 2000); City of Rocky River v. Papandreas, 8th Dist.
Cuyahoga No. 76132, 2000 WL 301080 (Mar. 23, 2000); McAuley, 2000 WL
1038186, at *5, quoting Papandreas, id. (holding that where the evidence
demonstrated that the defendant did not ingest anything between the first and
subsequent testings, “the police ‘had no reason to wait another twenty minutes
before administering the breath test.’ ”); State v. Matlack, 4th Dist. Athens No.
95CA1658, 1995 WL 646355, *4 (Nov. 2, 1995). Following our sister districts,
we reject White’s contention that a new twenty-minute observation period was
required after the breathalyzer displayed the message “Interferent Detect.”
{¶48} Therefore, we hold that the State substantially complied with the
Ohio Department of Health regulations and, lacking any prejudice shown or
alleged by White, the breath test results are admissible. See State v. Plummer, 22
Ohio St.3d 292, 490 N.E.2d 902 (1986), syllabus; Holly, 135 Ohio App.3d at 515,
citing Plummer id. (“Once the prosecution demonstrates substantial compliance,
the defendant must show that he would be prejudiced by failure to strictly comply
with the regulations. If the defendant is unable to show prejudice, then the results
of the breath-test are admissible.”).
{¶49} Accordingly, White’s third assignment of error is overruled.
-34-
Case No. 1-13-27
5. Fourth Assignment of Error—Administration of the Breath Test with the
Use of the Allegedly Expired Dry Gas
{¶50} The final point we need to address is White’s assertion that his breath
test was improperly administered because the dry gas used in “the wet bath
certification,” in the certification of the breath testing device, and in his test was
expired. In support of his contention that the dry gas was expired, White points
out that there are two expiration dates on one of the pages in State’s Exhibit G,
“Instrument Certification Report, Certificate of Analysis EBS - Ethanol Breath
Standard.” He argues that the ambiguity regarding the expiration dates should
have been resolved in his favor and, as a result, the trial court should have held
that his breath test was not properly administered.
{¶51} The trial court reviewed all the requirements of the administrative
rules promulgated by the Ohio Director of Health, including rules related to
certifications and testing of the dry gas and the instrument. (R. at 24, at 11.) After
reciting the standards, the trial court found that the machine used in White’s test,
Intoxilyzer 8000, “was tested on December 28, 2011 by Robert Norbeck, the
Director of Alcohol and Drug Testing’s field representative for such matters.” (Id.
at 3.) The trial court further found that there were no irregularities with the
machine, the “dry gas” or the “wet bath solution;” and that “the chemical test
administered on the defendant was analyzed in accordance with methods approved
by the director of health.” (Id. at 3, 11, 12.) Hence, the trial court concluded that
-35-
Case No. 1-13-27
the Intoxilyzer 8000 used in this test “was working properly when the test was
administered” and that “the defendant’s breath was analyzed according to the
requirements of Ohio Administrative Code Chapter 3701-53-02(E) and admissible
by the State of Ohio.” (Id. at 12.)
{¶52} We acknowledge that there are multiple dates on the dry gas
certification page in the report at issue. There is a printed phrase, “Product
Expiration: 26 May 2014” and, several lines below, there is a handwritten note,
“Adam S. Kelly 6/28/2011 expires 11/14/2011.” (State’s Ex. G.) There is no
link between the product expiration date and the handwritten note by Adam S.
Kelly. The person who prepared the Instrument Certification Report, Robert
Norbeck, testified that he did not know who Adam Kelly was. (Tr. at 67.)
Norbeck attested that the expiration date for the dry gas was May 26, 2014, and
that the Intoxilyzer at issue was properly certified. (Tr. at 60, 63, 65-66.) White
did not proffer any evidence to contradict this testimony or the clear meaning of
the phrase on the dry gas certification, which stated that the dry gas expired on
May 26, 2014.
{¶53} Therefore, we cannot conclude that the note, possibly made by Mr.
Kelly, referred to the dry gas expiration date, rather than Mr. Kelly’s commission
expiration date, anything else’s expiration, or whether it was merely a note put
there in error by one Adam S. Kelly. There is no explanation for why the
-36-
Case No. 1-13-27
handwritten note appears on the document, but the trial court relied on the
uncontradicted expert testimony and the documents in evidence in determining
that there were no issues with the dry gas, the wet bath certification, or the
instrument certification.
{¶54} There is no evidence to contradict the trial court’s factual finding that
the Intoxilyzer was working properly in all respects, that there were no issues with
the dry gas used, and that White’s breath test was administered properly. We thus
defer to the trial court’s “evaluation of evidence and the credibility of witnesses”
because it is supported by competent and credible evidence. See Mills, 62 Ohio
St.3d at 366; Burnside, 2003-Ohio-5372, ¶ 8; Norman, 136 Ohio App.3d at 51.
{¶55} As a result, the State has satisfied its burden of showing that the
breath test was administered in substantial compliance with the administrative
regulations and the trial court did not err in finding that the breath test was
properly administered and admissible. See Plummer, 22 Ohio St.3d 292, at
syllabus; Defiance v. Kretz, 60 Ohio St.3d 1, 3, 573 N.E.2d 32 (1991) (holding
that “admissibility of test results to establish alcoholic concentration under R.C.
4511.19 turns on substantial compliance with ODH regulations”).
{¶56} For the foregoing reasons, White’s fourth assignment of error is
overruled.
-37-
Case No. 1-13-27
Conclusion
{¶57} Having found no error prejudicial to Appellant, in the particulars
assigned and argued, we affirm the judgment of the Lima Municipal Court.
Judgment Affirmed
ROGERS, J., concurs, concurs in Judgment Only
as to Assignment of Error I
PRESTON, J., concurs.
/jlr
-38-