State v. Boles , 2020 Ohio 4485 ( 2020 )

[Cite as State v. Boles, 2020-Ohio-4485.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
:
STATE OF OHIO :
: Appellate Case No. 28704
Plaintiff-Appellant :
: Trial Court Case No. 2019-TRC-815
v. :
: (Criminal Appeal from
CHASE A. BOLES : Municipal Court)
:
Defendant-Appellee :
...........
OPINION
Rendered on the 18th day of September, 2020.
...........
NOLAN C. THOMAS, Atty. Reg. No. 0078255, City of Kettering Prosecutor’s Office, 2325
Wilmington Pike, Kettering, Ohio 45420
Attorney for Plaintiff-Appellant
ANGELINA N. JACKSON, Atty. Reg. No. 0077937, Montgomery County Public
Defender’s Office, 117 South Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellee
.............
FROELICH, J.
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{¶ 1} The State of Ohio appeals from a decision of the Kettering Municipal Court
that granted Chase A. Boles’s motion to suppress evidence that led to his arrest on
charges of operating a vehicle while under the influence of alcohol (“OVI”), in violation of
R.C. 4511.19(A)(1)(a). The judgment of the trial court will be reversed, and this matter will
be remanded for further proceedings.
Factual and Procedural Background
{¶ 2} Sometime shortly after 10 p.m. on February 12, 2019, the SUV that Boles
was attempting to pull forward through an open parking space struck an unoccupied
vehicle in the parking lot at Bargo’s Bar and Grill (“Bargo’s”) in Washington Township. At
that time, Deputies Brandon Baker and Michael Beach of the Montgomery County
Sheriff’s Office happened to be arriving at Bargo’s, in separate cars, in response to a call
about a different incident. Baker witnessed and Beach heard Boles’s collision.
{¶ 3} While Dep. Baker radioed in to report a crash involving property damage,
Dep. Beach exited his vehicle and approached Boles’s SUV. According to Dep. Beach,
he “immediately smell[ed] a strong odor of alcoholic beverage on [Boles’s] person.” (Tr.
p. 17.) In addition, Dep. Beach said that Boles’s “speech was a little slurred, his eyes
were bloodshot, glassy, red.” (Id.) Boles initially told Dep. Beach that he (Boles) had
consumed two drinks at Bargo’s; after further questioning, Boles said he had drunk a total
of four alcoholic beverages at two different locations that night. Based on his training and
observations, Dep. Beach suspected that Boles was under the influence of alcohol.
{¶ 4} Dep. Beach acquired Boles’s identification and car keys; he requested the
keys to prevent Boles from leaving the scene before the person driving the unoccupied
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vehicle had been identified. Dep. Beach then radioed Deputy Bradley Fizer of the
Montgomery County Sheriff’s Office for his assistance in administering field sobriety tests
to Boles. While waiting for Dep. Fizer to arrive, Dep. Beach proceeded inside Bargo’s with
Boles’s driver’s license and asked the bartender if she had served Boles any alcohol. The
bartender responded that she believed she had served Boles two “tall ones.” (Tr. p. 20.)
When Dep. Fizer arrived soon thereafter, Dep. Beach handed him Boles’s license, briefed
him (Fizer) about what Beach had observed, and “let [Dep.] Fizer take over.” (Id.)
{¶ 5} Dep. Fizer testified that at the time of this incident, his “sole duty” with the
Sheriff’s Office for about six years had been “to handle impaired drivers.” (Tr. p. 29.) He
outlined his basic and advanced training in that area, based on NHTSA1 standards, and
he noted that he also instructs other police officers to perform field sobriety tests in
accordance with NHTSA standards. He estimated he had made 600 to 700 OVI arrests
during his career. Dep. Fizer stated that other deputies frequently call him to assist in OVI
investigations due to his extensive experience. On the night of Boles’s collision, Dep.
Fizer already was en route to Bargo’s when Dep. Beach radioed him, and he arrived
within “just a couple minutes.” (Tr. p. 31.)
{¶ 6} Dep. Fizer found Boles still in the driver’s seat of his SUV. Boles said he had
“popped [his] clutch” while attempting to leave Bargo’s, and struck another car. (Tr. p. 33.)
Dep. Fizer observed minor damage to the front driver’s side fenders of both vehicles. He
said he “could smell a strong odor of alcoholic beverage on [Boles’s] breath” and noticed
that Boles had slurred speech and glassy eyes. Asked how much he had drunk that night,
1 An acronym for “National Highway Traffic Safety Administration” standards. (See
3/22/19 Motion to Suppress, p. 2).
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Boles told Dep. Fizer that he drank two Budweisers at Bargo’s and two earlier at another
nearby bar. Dep. Fizer asked Boles to exit his vehicle to perform field sobriety tests, and
Boles agreed.
{¶ 7} Dep. Fizer described Boles as “having trouble walking straight” toward the
deputy’s cruiser; ‘he was kind of stumbling and walking, you know, kind of staggered.”
(Tr. p. 34.) After determining that Boles did not wear glasses or contact lenses, did not
take any medications, and did not have any physical impairments, Dep. Fizer
administered a “horizontal gaze nystagmus” (“HGN”) test and obtained results indicative
of “a high level of impairment.” (Tr. p. 35-39.) He also administered a “vertical nystagmus
test,” with similar results. Next, Dep. Fizer administered a “walk and turn” test, as to which
he reported Boles “lost balance during instructions, he stopped or paused during the test,
he didn’t touch heel to toe, he stepped off the line, he raised his arms more than six inches
away from his body, and he did not turn correctly,” indicating impairment. (Tr. p. 42-43.)
On the “one-legged stand” test, Boles reportedly “swayed while balancing, * * * raised his
arms more than six inches, and * * * also put his foot down.” (Tr. p. 43-44.) Again, Dep.
Fizer testified that test result indicated a high probability that Boles was intoxicated.
{¶ 8} Boles refused to take a breath test, so evidence regarding his alcohol content
percentage was not available. Additionally, no video of Boles’s field sobriety testing was
presented; Dep. Fizer testified that he mistakenly believed that his cruiser camera was
recording, but learned only afterward that “my recorder was not on.” (Tr. p. 55.) Dep. Fizer
arrested Boles for OVI, but did not take him into custody. Boles was permitted to call
someone to drive him home.
{¶ 9} After entering a not guilty plea in the Kettering Municipal Court to the OVI
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charge, Boles moved through counsel to suppress the evidence against him. He argued
that law enforcement officers lacked probable cause to stop, detain, and arrest him; that
his field sobriety tests were not administered in substantial compliance with NHTSA
standards; and that his statements were obtained in violation of his Fifth Amendment right
against self-incrimination.
{¶ 10} Following a suppression hearing during which Deputies Baker, Beach, and
Fizer testified as summarized above, the trial court entered a decision granting Boles’s
motion to suppress. That decision stated in pertinent part as follows:
After due consideration of the evidence and testimony adduced, and the
legal arguments of counsel, the Court finds that based upon the totality of
the circumstances there was initially some reasonable suspicion upon
which to temporarily detain [Boles] to investigate further. However, the
Court also finds that based upon the testimony presented, the Court cannot
conclude that there was substantial compliance with NHTSA standards in
the administration of the field sobriety tests. The Court further finds that
based upon its evaluation of the testimony and evidence presented, and the
inconsistencies, gaps and omissions therein[,] there was not sufficient
probable cause upon which to arrest [Boles] for OVI.
(1/28/20 Decision & Entry on Defendant’s Motion to Suppress, p. 6.)
{¶ 11} The State of Ohio filed a timely appeal from that decision, setting forth two
assignments of error:
1) The trial court erred in failing to find that the field sobriety tests were
administered in substantial compliance with NHTSA standards and
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sustaining Boles’s Motion to Suppress.
2) The trial court erred in concluding that Deputy Fizer did not have probable
cause to arrest Boles for OVI and granting Boles’s Motion to Suppress.
Standard of Review
{¶ 12} When ruling on a motion to suppress, “ ‘the trial court assumes the role of
trier of facts and is in the best position to resolve questions of fact and evaluate the
credibility of witnesses.’ ” State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d
Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th
Dist.1994). We must accept the trial court’s findings of fact if they are supported by
competent, credible evidence in the record. State v. Villegas, 2d Dist. Montgomery No.
27234, 2017-Ohio-2887, ¶ 11, citing State v. Isaac, 2d Dist. Montgomery No. 20662,
2005-Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d
498 (2d Dist.1994). Accepting those facts as true, we then must determine as a matter of
law, without deference to the trial court’s legal conclusion, whether the applicable legal
standard is satisfied. Id.Assignment of Error #1 – Administration of Field Sobriety Tests
{¶ 13} The State first challenges the trial court’s conclusion that the evidence
presented at the suppression hearing was insufficient to demonstrate “substantial
compliance with NHTSA standards in the administration of the field sobriety tests.”
(1/28/20 Decision & Entry on Defendant’s Motion to Suppress, p. 6.) The State maintains
that Dep. Fizer’s uncontested testimony regarding the field sobriety tests he administered
and the manner in which he administered them was sufficient to establish the admissibility
of Boles’s test results.
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{¶ 14} With respect to the admission of field sobriety test results in an OVI
prosecution, the applicable statute provides as follows:
In any criminal prosecution * * * for a violation of division (A) or (B) of this
section, * * * if a law enforcement officer has administered a field sobriety
test to the operator of the vehicle involved in the violation and if it is shown
by clear and convincing evidence that the officer administered the test in
substantial compliance with the testing standards for any reliable, credible,
and generally accepted field sobriety tests that were in effect at the time the
tests were administered, including, but not limited to, any testing standards
then in effect that were set by the national highway traffic safety
administration, all of the following apply:
(i) The officer may testify concerning the results of the field sobriety test so
administered.
(ii) The prosecution may introduce the results of the field sobriety test so
administered as evidence in any proceedings in the criminal prosecution
* * *.
(iii) If testimony is presented or evidence is introduced under division
(D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is
admissible under the Rules of Evidence, the court shall admit the testimony
or evidence and the trier of fact shall give it whatever weight the trier of fact
considers to be appropriate.
R.C. 4511.19(D)(4)(b). See also State v. Murray, 2020-Ohio-45, __ N.E.3d __, ¶ 19 (2d
Dist.).
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{¶ 15} The results of field sobriety tests generally are admissible so long as the
proper foundation has been laid as to both the administering officer’s training and ability
to administer the tests and the actual technique he or she used to administer the tests.
State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 28. Accordingly,
the State’s burden of proof regarding the admissibility of field sobriety test results “is not
an onerous one”; “ ‘general testimony that all pertinent rules and regulations had been
followed in conducting the defendant’s test, if unchallenged, would amount to a sufficient
foundation for the admission of the results.’ ” State v. Murray, 2d Dist. Greene No. 2002-
CA-10, 2002-Ohio-4809, ¶ 11, quoting Painter & Looker, Ohio Driving Under the Influence
Law, T11.19 (2001 Ed.). “For example, testimony by the officer that he or she had been
trained to perform the HGN test under NHTSA standards, and that the test was performed
in the manner in which the officer had been trained, would suffice for admission of the
field sobriety test results, absent a challenge to some specific way the officer failed to
comply with NHTSA standards.” State v. Reynolds, 2d Dist. Greene No. 2012-CA-64,
2014-Ohio-3642, ¶ 27, citing State v. Reed, 2d Dist. Montgomery No. 23357, 2010-Ohio-
299, ¶ 54.
{¶ 16} Boles’s motion to suppress averred generally that “[t]he administration of
the field sobriety tests given to [Boles] by the officer were not done in substantial
compliance with the rules and regulations of the National Highway Traffic Safety
Administration,” but provided no specifics as to any alleged deficiencies. (3/2/19 Motion
to Suppress, p. 2.) During the suppression hearing that followed, Det. Fizer testified that
he was trained to administer field sobriety tests in accordance with NHTSA standards (Tr.
p. 30), and he provided details as to his administration, pursuant to his training, of three
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such tests – HGN, “walk and turn,” and “one-legged stand” – to Boles. (Id., p. 37-39, 41-
42, 43-44.) He also separately confirmed that each of the field sobriety tests he asked
Boles to perform was administered “per the standards of the NHTSA manual.” (Id., p. 44.)
Det. Fizer thus laid a proper foundation for the admission of Boles’s field sobriety test
results.
{¶ 17} In cross-examining Det. Fizer, Boles’s attorney did not question the
detective’s qualifications or the manner in which he administered those tests. (See id., p.
46-60.) Instead, she focused on Fizer’s failure to record the testing with his cruiser’s
camera and the fact that he did not prepare his “intoxication influence report” while
administrating the field sobriety tests, but rather “within an hour or so” afterward. (Id., p.
50.)
{¶ 18} Boles’s appellate brief, however, advances specific challenges to Dep.
Fizer’s testing procedures that were not raised in his motion to suppress or through cross-
examination at the suppression hearing. Those challenges consist in their entirety of the
following:
Deputy Fizer did not give any instructions to [Boles] for the HGN test.
Deputy Fizer demonstrated the WAT (walk and turn) test after giving [Boles]
instructions and did not confirm that [Boles] understood the instructions for
positioning before he began the walking portion of the test. Deputy Fizer did
not time the OLS (one-legged stand) test.
(Citations to record omitted.) (Brief of Defendant-Appellee, p. 5.)
a. Specific challenges to testing procedures
{¶ 19} As the trial court’s decision does not elaborate on its conclusion that Det.
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Fizer’s adherence to NHTSA standards was not sufficiently established, the record
contains no specific findings of fact to which we must defer on that issue. Because the
purported testing deficiencies identified in Boles’s appellate brief were not raised in his
motion to suppress or through cross-examination of Det. Fizer, we conclude that such
alleged deficiencies did not provide a proper basis for suppression of the field sobriety
test results.2
{¶ 20} In the context of a motion to suppress breath test results in an OVI case,
this court previously has remarked that the State’s “ ‘burden to establish substantial
compliance [with applicable testing standards] only extends to the level with which the
defendant takes issue with the legality of the test.’ ” State v. Conley, 2d Dist. Greene No.
2007-CA-52, 2008-Ohio-609, ¶ 7, quoting State v. Bissaillon, 2d Dist. Greene No. 06-CA-
130, 2007-Ohio-2349, ¶ 12. We there continued:
When the defendant’s motion to suppress merely raises a generalized claim
of inadmissibility * * *, the burden on the State is fairly slight. * * * Thus, the
State must demonstrate compliance only in general terms when the motion
to suppress raises issues in general terms. No specific evidence is required
unless the defendant raises a specific issue in his or her motion.
(Internal citations omitted.) Id., quoting Bissaillon at ¶ 12.
{¶ 21} Here, we by analogy extend that reasoning to motions to suppress the
results of field sobriety testing. Boles’s motion to suppress did not criticize any specific
aspects of Dep. Fizer’s administration of the field sobriety tests, but merely averred
2Given that conclusion, we need not address whether the specific acts or omissions
Boles now advances in fact constituted departures from NHTSA standards.
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generally that such tests failed to substantially comply with NHTSA standards. After
offering hearing testimony that provided a detailed summary of the tests he administered
to Boles (Tr. p. 35-44), Dep. Fizer affirmed that he had “administered th[o]se tests per the
standards of the NHTSA manual.” (Tr. p. 44.) Defense counsel’s cross-examination of
Dep. Fizer did not take issue with his execution of any particular portion of the field
sobriety testing he conducted. As a result, the State satisfied its burden to demonstrate
substantial compliance with NHTSA testing standards, commensurate with “the level with
which [Boles took] issue with the legality of the test.” See Conley at ¶ 7.
{¶ 22} Boles cites a single decision of another Ohio appellate court as support for
the proposition that Dep. Fizer’s testimony was insufficient to establish that he
administered the field sobriety tests to Boles in substantial compliance with the NHTSA
manual. See Cleveland v. Krivich, 2016-Ohio-3072, 65 N.E.3d 279 (8th Dist.). That
decision is inapposite. In Krivich, the testifying officer affirmatively acknowledged that he
had deviated from NHTSA standards while administering field sobriety tests to the
defendant. For example, the officer admitted that he did not ask whether the defendant
wore contact lenses, that he used his finger instead of a pen to conduct the HGN test,
and that “he did not time [the defendant] during the one-leg stand test.” Id. at ¶ 8. Dep.
Fizer made no such admissions. Although his summary description of administering field
sobriety tests to Boles made no mention of giving Boles instructions prior to the HGN test
or of timing Boles during the OLS test, Fizer never stated that he failed to comply with
those NHTSA testing expectations. (See Tr. p. 35-44.) Rather, he testified that he had
administered Boles’s field sobriety tests “per the standards of the NHTSA manual.” (Id. at
p. 44.)
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{¶ 23} Thereafter, defense counsel did not question Dep. Fizer about the now-
challenged details of the field sobriety tests Fizer administered to Boles. Accordingly,
unlike the facts in Krivich, nothing in the record before us directly contradicts Dep. Fizer’s
testimony that he fully complied with NHTSA testing standards.
{¶ 24} Given the sheer volume of the NHTSA standards applicable to field sobriety
testing,3 requiring a witness to accurately recount how the testing he or she administered
encompassed each and every element of such standards, even when no specific
challenge has been raised, would pose an undue and unreasonable burden. As observed
by another Ohio appellate court, again in the context of chemical tests in OVI cases,
permitting such a “shotgun” approach in motions to suppress would allow defendants to
“essentially regurgitate[ ] the [applicable standards] and then wait[ ] for the police officer
to forget to testify about one of the aspects of compliance.” (Citation omitted.) State v.
Richards, 2016-Ohio-3518, 67 N.E.3d 147, ¶ 8 (1st Dist.).
{¶ 25} We decline to endorse the use of such broad attacks on field sobriety
testing. Requiring instead that the State prove law enforcement officers’ adherence to the
specific requirements of field sobriety testing actually put at issue by the defendant’s
motion to suppress or through cross-examination during a suppression hearing provides
adequate assurance that field sobriety tests were administered “in substantial compliance
with [applicable] testing standards.” See R.C. 4511.19(D)(4)(b). The State did so in this
case.
{¶ 26} Having concluded that the State established Det. Fizer’s compliance with
3 According to the State, the current version of the NHTSA manual contains “95 pages
* * * devoted to the administration of field sobriety tests.” (Reply Brief of Appellant, p. 2).
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NHTSA standards to an extent commensurate with the challenge raised by Boles prior to
or during the suppression hearing, we determine that the trial court erred by deeming the
evidence insufficient to establish substantial compliance, and therefore suppressing the
results of the field sobriety tests. The State’s assignment of error on that basis is
sustained.
b. Lack of video recording
{¶ 27} In light of the trial court’s failure to articulate the factual basis for its
conclusion regarding NHTSA standards, we also have considered whether the trial court
properly could have suppressed the field sobriety test results based simply on the lack of
physical evidence to corroborate Fizer’s testimony. We conclude that it could not.
{¶ 28} As observed by the Ohio Supreme Court, “a video recording of the field
sobriety test” constitutes “[t]he primary source of evidence normally available to an OVI
defendant.” State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691,
¶ 14. Nevertheless, the availability of such a recording is not determinative of the
admissibility of field sobriety test results. See, e.g., Athens v. Gilliland, 4th Dist. Athens
No. 02CA4, 2002-Ohio-4347, ¶ 1 (reversing decision that granted motion to suppress, as
failure to record field sobriety testing “is not fatal to the [S]tate’s case”). Numerous Ohio
appellate courts, including this court, have noted that there is no legal requirement that
field sobriety tests be recorded. See State v. Pace, 3d Dist. Hancock No. 5-12-30, 2013-
Ohio-2143, ¶ 18-20, citing State v. Smith, 5th Dist. Licking No. 09-CA41, 2010-Ohio-1232,
¶ 44-45; State v. Delarosa, 11th Dist. Portage No. 2003-P-0129, 2005-Ohio-3399, ¶ 48
(NHTSA standards do not require field sobriety tests to be videotaped); State v. McDade,
12th Dist. Warren Nos. CA2003-09-096, CA2003-09-097, 2004-Ohio-3672, ¶ 17 (failure
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to make video of field sobriety tests did not violate due process); Gilliand at ¶ 5; State v.
Shepherd, 2d Dist. Clark No. 2002-CA-55, 2002-Ohio-6383, ¶ 27; State v. Wooten, 4th
Dist. Athens No. 01 CA31, 2002 WL 488, *4 (Mar. 25, 2002).
{¶ 29} In Shepherd, we “approve[d] and follow[ed]” the Fourth District’s decision in
Wooten, holding that, “[i]n the absence of bad faith, the failure of a police officer to cause
a videotape or audiotape record to be made of that officer’s encounter with a suspect
does not violate the suspect’s constitutional right to due process of law under the
Fourteenth Amendment to the United States Constitution.” Shepherd at ¶ 27. In the
instant case, we again find Wooten persuasive as to its conclusion that, “[b]ecause no
constitutional violation arises merely from a law enforcement officer’s failure to employ a
particular investigative tool, the suppression of evidence * * * is not warranted” by an
officer’s negligent failure to capture field sobriety testing on camera. Wooten at *4.
{¶ 30} In granting Boles’s motion to suppress, the trial court neither identified any
specific deficiencies in the testing procedures testified to by Dep. Fizer, nor found Dep.
Fizer to lack credibility. Significantly, the trial court also did not suggest that Dep. Fizer’s
failure to record Boles’s performance of the field sobriety tests was the product of bad
faith, and nothing in the record would support a bad faith finding. Although the record
lacks objective physical evidence to corroborate Fizer’s testimony, the lack of a video
recording implicates the weight to be given, not the admissibility of, that testimony. Under
the applicable statute, the trial court “shall admit the testimony or evidence” when a proper
foundation is laid, and the weight to be accorded that evidence is to be determined by the
trier of fact. (Emphasis added.) R.C. 4511.19(D)(4)(b)(iii).
{¶ 31} Because the trial court erred in suppressing the field sobriety test results
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where nothing rebutted the officer’s testimony that the tests were administered in
accordance with NHTSA standards and nothing suggested that the officer’s failure to
video-record those tests was a product of bad faith, the State’s first assignment of error
is sustained.
Assignment of Error #2 – Probable Cause to Arrest
{¶ 32} In its second assignment of error, the State contends that the trial court
erred in concluding that Deputy Fizer lacked probable cause to arrest Boles for violating
R.C. 4511.19(A)(1)(a)’s prohibition on operating a vehicle while under the influence of
alcohol. The State maintains that even absent the results of the field sobriety tests
administered to Boles, the totality of the circumstances demonstrates that probable cause
existed for that arrest. While the significance of that argument is lessened by our
conclusion that the field sobriety test results should not have been suppressed, we
nonetheless agree with the State’s position.
{¶ 33} “Probable cause to arrest exists when a reasonably prudent person would
believe that the person to be arrested has committed a crime.” State v. Adams, 2d Dist.
Montgomery No. 24184, 2011-Ohio-4008, ¶ 7, citing State v. Timson, 38 Ohio St.2d 122,
311 N.E.2d 16 (1974). In determining whether probable cause exists, the court considers
the totality of circumstances surrounding the arrest. State v. Thomas, 2d Dist.
Montgomery No. 21430, 2006-Ohio-6612, ¶ 9; State v. Turner, 2016-Ohio-7983, 74
N.E.3d 858, ¶ 19 (2d Dist.).
{¶ 34} The offense for which Boles was arrested is defined as follows:
(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley
within this state, if, at the time of the operation, any of the following apply:
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(a) The person is under the influence of alcohol, a drug of abuse, or a
combination of them.
R.C. 4511.19(A)(1)(a).
{¶ 35} An individual’s performance on field sobriety tests is one means of showing
that he or she was under the influence of alcohol. See State v. Donovan, 2d Dist. Clark
No. 02CA0052, 2003-Ohio-1045, ¶ 25. However, “ ‘[p]robable cause to arrest does not
have to be based, in whole or in part, upon a suspect’s poor performance on one or more
field sobriety tests.’ ” State v. Louis, 2d Dist. Montgomery No. 27268, 2017-Ohio-8666,
¶ 42, quoting Columbus v. Bickis, 10th Dist. Franklin No. 09AP-898, 2010-Ohio-3208, ¶
21. “Rather, ‘[t]he totality of the facts and circumstances can support a finding of probable
cause to arrest even where no field sobriety tests were administered[.]’ ” Id., quoting State
v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000), superseded by statute on
other grounds as recognized in Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d
155. See also R.C. 4511.19(D)(4)(c) (disallowance of field sobriety test results under R.C.
4511.19(D)(4)(b) “does not limit or preclude a court * * * from considering [other] evidence
or testimony” in determining “whether the arrest of a person was supported by probable
cause”).
{¶ 36} We previously have found probable cause for arrest to exist in cases where
no chemical or field sobriety test results were admitted. For example, in State v. Barger,
2017-Ohio-4008, 91 N.E.3d 277 (2d Dist.), this court determined that probable cause
existed for the OVI arrest of a driver who turned left in front of a motorcyclist; smelled of
alcohol; had glassy, bloodshot, and dilated eyes; was quiet and looked down and away
when speaking to the arresting officer; and responded in an abnormal, stiff manner to the
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officer’s question about alcohol consumption. Id. at ¶ 17.
{¶ 37} The facts here arguably are even more indicative of intoxication than those
in Barger. Dep. Beach saw Boles swerve into a stationary vehicle parked in a location
where Beach opined that contact could have been easily averted. Both Beach and Dep.
Fizer testified that Boles smelled strongly of alcohol and had glassy, bloodshot eyes and
slurred speech. Boles admitted to drinking four beers that night, two of which were
consumed in the bar from which he was departing when the accident occurred, and the
bartender at that bar confirmed that she had served Boles what she recalled as two “tall
ones.” Furthermore, Dep. Fizer testified that Boles was “having trouble walking straight”
upon exiting his SUV; Fizer said Boles “kind of staggered” toward Fizer’s cruiser. (Tr. p.
34.)
{¶ 38} Even without Dep. Fizer’s testimony regarding Boles’s performance on the
specific field sobriety tests the deputy administered, substantial credible, competent
evidence showed that Dep. Fizer had a reasonable basis to believe that Boles had driven
his vehicle while under the influence of alcohol. Despite the trial court’s allusion to
“inconsistencies, gaps and omissions” in the evidence the State presented at the
suppression hearing (1/28/20 Decision & Entry on Defendant’s Motion to Suppress, p. 6),
relatively minor discrepancies in a witness’s testimony ordinarily will not warrant the
exclusion of evidence. See, e.g., State v. Talbott, 8th Dist. Cuyahoga No. 89630, 2008-
Ohio-961, ¶ 20; State v. McNeal, 3d Dist. Allen No. 1-01-158, 2002-Ohio-2981, ¶ 42. Our
review of the evidence reveals no discrepancies significant enough to undermine the
existence of probable cause.
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{¶ 39} Although Dep. Fizer acknowledged that the written report he prepared
indicated that he did not detect the odor of alcohol on Boles (see Tr. Exh. A), he explained
that he accidentally checked the wrong box on the report form. (Tr. p. 54.) His testimony
that Boles actually did smell strongly of alcohol was substantiated by Det. Beach’s
testimony. Similarly, Fizer’s mistaken checking of the “video” box on his written report had
little or no bearing as to the probable cause issue; Det. Fizer testified that he initially
believed that Boles’s field sobriety tests had been recorded, and he learned only later that
they had not been. Other minor differences the trial court identified between Fizer’s
testimony and his written report – i.e., that the report did not reflect that Boles’s eyes were
bloodshot or that he appeared nervous, and did not include certain oral statements Fizer’s
testimony attributed to Boles – likewise did not significantly detract from the totality of the
facts and circumstances suggesting that Dep. Fizer had a reasonable basis for believing
that Boles had operated his vehicle while under the influence of alcohol, in violation of
R.C. 4511.19(A)(1)(a).
{¶ 40} We conclude that the trial court erred in finding that Dep. Fizer lacked
probable cause to arrest Boles for OVI, as the totality of the circumstances supported a
conclusion that probable cause existed for that arrest. The State’s second assignment of
error is sustained.
Conclusion
{¶ 41} For the foregoing reasons, the trial court’s decision granting Boles’s motion
to suppress evidence is reversed, and this matter is remanded for further proceedings
consistent with this opinion.
.............
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TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Nolan C. Thomas
Angelina N. Jackson
Hon. Frederick W. Dressel