State v. Aiken , 2021 Ohio 3503 ( 2021 )

[Cite as State v. Aiken, 2021-Ohio-3503.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY
State of Ohio Court of Appeals No. F-21-005
Appellee Trial Court No. TRC 2001960
v.
Forrest C. Aiken DECISION AND JUDGMENT
Appellant Decided: September 30, 2021
*****
Scott A. Haselman, Fulton County Prosecuting Attorney,
for appellee.
Autumn D. Adams, for appellant.
*****
ZMUDA, P.J.
I. Introduction
{¶ 1} Appellant, Forrest Aiken, appeals the judgment of the Fulton County Court,
Western District, sentencing him to two years of community control after he pled no
contest to one count of operating a vehicle under the influence of alcohol. Finding no
error in the proceedings below, we affirm.
A. Facts and Procedural Background
{¶ 2} On January 4, 2020, at 2:44 a.m., appellant was driving on County Road 14
in Dover Township, Fulton County, when he was stopped by Travis Pennington of the
Fulton County Sheriff’s Office. Following the administration of field sobriety tests and a
breathalyzer test, appellant was cited for operating a vehicle under the influence in
violation of R.C. 4511.19(A)(1)(d).
{¶ 3} Approximately seven weeks later, on February 21, 2020, appellant filed a
motion to suppress, in which he argued, inter alia, that the field sobriety tests
administered in this case failed to comply with standardized procedures set forth in the
National Highway Traffic Safety Administration’s (“NHTSA”) Full Instructor Manual
and thus the results of those tests could not be used to establish probable cause to believe
appellant was intoxicated. The matter proceeded to a hearing on appellant’s motion to
suppress on July 29, 2020.
{¶ 4} According to deputy Pennington’s suppression hearing testimony, he
stopped appellant after he observed appellant proceed through a stop sign and into an
intersection without stopping. Pennington indicated that appellant applied his brakes in
an attempt to stop, causing his tires to lock up. However, appellant was traveling too fast
for his vehicle’s brakes to bring the vehicle to a complete stop without proceeding into
the intersection.
{¶ 5} From his position in a nearby parking lot, Pennington observed appellant
accelerate “at a high rate of speed” after proceeding through the intersection. Pennington
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then attempted to follow appellant. As Pennington approached the intersection, he
observed appellant’s vehicle veer off the right side of the road “past the grass and the
ditch into a field.” Appellant’s vehicle then “spun around and was partially off the left
side of the roadway in the southbound lane on County Road 14.” During the suppression
hearing, a video of Pennington’s subsequent encounter with appellant was admitted. The
video depicts appellant’s vehicle positioned partially on County Road 14 as described
above.
{¶ 6} Pennington subsequently approached appellant’s vehicle from the driver’s
side and began speaking with appellant. When asked about his failure to stop before
entering the intersection, appellant explained that he had recently replaced the brakes on
his vehicle. Meanwhile, Pennington noticed that appellant’s eyes were glossy and he
detected an “odor of intoxicants coming from the vehicle.” Pennington then asked
appellant if he had been drinking, and appellant responded in the negative.
{¶ 7} Based upon his observation of appellant’s eyes and the odor of intoxicants,
Pennington asked appellant to exit the vehicle. Appellant complied, and Pennington
began to administer field sobriety tests. During the suppression hearing, Pennington
testified that he was previously trained to perform the field sobriety tests that were
administered during the traffic stop. Further, he verified that he administered the tests in
a manner that complied with standardized procedures promulgated by the NHTSA.
{¶ 8} The first test administered by Pennington was the horizontal gaze nystagmus
test. Initially, Pennington instructed appellant to stand with his hands and arms at his
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side and focus his eyes upon Pennington’s fingertip without turning his head as
Pennington moved his finger from side to side at a distance of seven to ten inches from
appellant’s face. As he performed the test, Pennington watched appellant’s eyes, looking
for a “lack of smooth pursuit * * * at maximum deviation and lack of smooth pursuit at *
* * prior to 45 degrees.” In so doing, Pennington noticed that appellant’s eyes were
involuntarily jerking as Pennington moved his finger from left to right. Pennington also
observed nystagmus in both eyes at maximum deviation, but did not observe nystagmus
prior to that point. Based on his observations, Pennington concluded that appellant was
legally intoxicated.
{¶ 9} On cross examination, Pennington was pressed for further details as to how
far he moved his finger from left to right. Pennington responded that he moved his finger
from side to side at a distance of “just past shoulder width.” Pennington was also asked
about the angle at which he moved his finger relative to the center of appellant’s face and
how long he held his finger at maximum deviation. Pennington explained that he moved
his finger in a straight line, holding it at maximum deviation for two seconds.
{¶ 10} After administering the horizontal gaze nystagmus test, Pennington again
asked appellant whether he had consumed any alcohol. At this point, appellant
acknowledged that he had consumed alcohol four hours prior to the traffic stop.
{¶ 11} Pennington then proceeded to administer the second field sobriety test,
namely the walk and turn test. Pennington explained the instructions to appellant and
demonstrated how to perform the test. On cross examination, Pennington testified that he
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instructed appellant to stand with his feet placed in a heel-to-toe position and take nine
heel-to-toe steps down and back along a line with his arms at his side. Pennington also
instructed appellant to count his steps aloud as he completed the test. As appellant
performed the test, Pennington witnessed appellant step off the line multiple times, use
his arms for balance, fail to complete all of his steps, and fail to properly count his steps.
According to Pennington, appellant’s performance during the walk and turn test was
indicative of impairment.
{¶ 12} The one leg stand test was the third and final field sobriety test that
Pennington administered. As with the walk and turn test, Pennington demonstrated for
appellant how to complete the test. During cross examination, Pennington stated that the
clues indicative of impairment from this test include using the arms for balance, failing to
count aloud, and resting your foot prior to being told to do so. Appellant was able to
perform the test, but only after holding his arms to the center of his chest for balance and
putting his foot down without being told to do so. According to Pennington, raising the
arms higher than six inches signified appellant’s need to balance himself and thus
constituted a failure.
{¶ 13} At the conclusion of the foregoing field sobriety tests, Pennington believed
he had probable cause to arrest appellant for operating his vehicle while under the
influence of alcohol. Consequently, Pennington placed appellant under arrest, read him
his Miranda rights, and transported him to the police station for a breathalyzer test.
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{¶ 14} Once at the station, Pennington read a “BMV 2255 form” for appellant in
the presence of another officer, Sergeant Waxler. Appellant then requested to use the
restroom. Pennington granted appellant’s request, and then he and Waxler accompanied
appellant to the restroom. Pennington testified that a deputy was with appellant while he
was in the restroom. Further, Pennington stated that appellant, who was in Pennington’s
custody at all times, did not ingest anything during the time period between his arrest and
the administration of a breathalyzer test.
{¶ 15} After returning from the restroom, appellant consented to a breathalyzer
test. Pennington administered the breathalyzer test with an Intoxilyzer 8000, which
Pennington stated he was certified to use. After the machine calibrated itself, Pennington
obtained two breath samples from appellant. The first and second sample registered a
blood alcohol level of .131 and .126, respectively. Based upon these results, Pennington
issued appellant a citation for operating a vehicle under the influence in violation of R.C.
4511.19(A)(1)(d).
{¶ 16} At the conclusion of Pennington’s testimony at the suppression hearing, the
trial court took the matter under advisement. On August 5, 2020, the trial court issued its
decision on appellant’s motion to suppress. Relevant to this appeal, the trial court found
that Pennington substantially complied with NHTSA standardized procedures with
respect to his administration of field sobriety tests. Based upon the results of those tests,
the trial court concluded that Pennington had probable cause to believe that appellant’s
ability to operate his vehicle was noticeably impaired by his consumption of alcohol.
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Thus, the court ruled that Pennington was justified in arresting appellant for operating his
vehicle under the influence of alcohol, and denied appellant’s motion to suppress.
{¶ 17} On January 20, 2021, appellant appeared before the trial court for a change
of plea hearing. He ultimately pled no contest to the sole count of operating his vehicle
under the influence of alcohol, was found guilty of said offense, and was sentenced to
two years of community control. Thereafter, appellant filed his timely notice of appeal.
B. Assignment of Error
{¶ 18} On appeal, appellant assigns the following error for our review:
The Trial Court erred in denying Appellant’s motion to suppress as
the Deputy did not have probable cause to arrest Appellant on suspicion of
OVI and the results of the breathalyzer must be suppressed as fruit of the
poisonous tree.
II. Analysis
{¶ 19} In his sole assignment of error, appellant argues that the trial court erred in
denying his motion to suppress.
{¶ 20} Our review of the trial court’s denial of appellant’s motion to suppress
“presents a mixed question of law and fact.” State v. Wesson, 137 Ohio St.3d 309, 2013-
Ohio-4575, 999 N.E.2d 557, ¶ 40, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court’s factual findings if they
are supported by competent credible evidence, and “independently determine, without
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deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Wesson at ¶ 40, quoting Burnside at ¶ 8.
{¶ 21} At the outset, we note that appellant does not challenge the legal basis for
the traffic stop that was initiated by Pennington after he observed appellant commit
several traffic violations. Rather, appellant contends that Pennington lacked probable
cause to arrest him for operating his vehicle under the influence of alcohol, and bases his
conclusion exclusively on the argument that the field sobriety tests that Pennington used
to establish probable cause were not conducted in accordance with the NHTSA manual.
{¶ 22} In order to determine whether Pennington had probable cause to arrest
appellant, we must consider whether, at the time of the arrest, Pennington “had sufficient
information, derived from a reasonably trustworthy source of facts and circumstances,
sufficient to cause a prudent person to believe that [appellant] was driving under the
influence.” (Citation omitted.) State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952(2000), superseded by statute on other grounds as stated in R.C. 4511.19(D)(4)(b).
Importantly, we have noted that “[p]robable cause to arrest does not have to be based, in
whole or part, on the results of field sobriety tests.” State v. Masin, 6th Dist. Erie No. E-
20-004, 2020-Ohio-6780, ¶ 33, citing Homan at 427.
{¶ 23} Here, appellant’s probable cause argument is based upon the assumption
that the results of the field sobriety tests provided the exclusive basis for arresting him for
operating his vehicle under the influence of alcohol. Rather than considering the totality
of the circumstances, including the facts that gave rise to Pennington’s decision to
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conduct field sobriety tests in the first place, appellant focuses only on Pennington’s
conformity with established NHTSA field sobriety procedures. However, the arrest that
took place in this case was supported by more than just appellant’s inability to
successfully complete field sobriety tests.
{¶ 24} At the suppression hearing, Pennington testified that he observed appellant
drive through an intersection without stopping at the stop sign. Pennington explained that
appellant’s tires squealed as he attempted to stop. According to Pennington, appellant
was unable to stop because of the rate of speed at which he approached the intersection.
Thereafter, Pennington observed appellant rev up his engine and accelerate
uncontrollably, causing his vehicle to veer off the right side of the road “past the grass
and the ditch into a field.” Appellant’s vehicle then “spun around and was partially off
the left side of the roadway in the southbound lane on County Road 14.” During his
initial encounter with appellant (prior to the administration of field sobriety tests),
Pennington detected an odor of alcohol emanating from appellant’s person, and noticed
appellant’s eyes were glossy.
{¶ 25} As already noted, probable cause to arrest a defendant for operating a
vehicle under the influence of alcohol requires information sufficient to cause a prudent
person to believe that the defendant was driving under the influence. Here, appellant’s
erratic driving, paired with Pennington’s detection of an odor of alcohol and appellant’s
glossy eyes, is information that was sufficient to warrant Pennington in believing that
appellant was driving under the influence of alcohol. See State v. Panzeca, 1st Dist.
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Hamilton Nos. C-190474, C-190475, 2021-Ohio-2905, ¶ 16, quoting Cleveland v.
Giering, 2017-Ohio-8059, 98 N.E.3d 1131, ¶ 30 (8th Dist.) (“Field-sobriety tests are not
required in order to obtain an OVI conviction. * * * To prove impairment, the state can
rely on ‘physiological factors such as slurred speech, bloodshot eyes, and the odor of
alcohol.’”). As such, probable cause to arrest appellant was established prior to, and
independent of, Pennington’s decision to conduct field sobriety tests.
{¶ 26} In its decision denying appellant’s motion to suppress, the trial court
examined the merits of appellant’s argument concerning Pennington’s administration of
the field sobriety tests. Since the trial court’s probable cause determination was based
largely upon its conclusion that Pennington substantially complied with NHTSA
guidelines in conducting the field sobriety tests in this case, we will examine the merits of
appellant’s challenge to the admissibility of the field sobriety tests notwithstanding our
determination that appellant’s arrest was supported by probable cause even without field
sobriety testing.
{¶ 27} Results from field sobriety tests “are not admissible at trial unless the state
shows by clear and convincing evidence that the officer administered the test in
substantial compliance with NHTSA guidelines.” State v. Codeluppi, 139 Ohio St.3d
165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 11, citing R.C . 4511.19(D)(4)(b). For the
results to be admissible, a proper foundation must be laid as to “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. Boles, 2020-Ohio-4485, 158 N.E.3d 1013, ¶ 15 (2d
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Dist.), citing State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶
28. The state’s burden of proof as to the admissibility of the results of field sobriety tests
“‘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.’” Id., quoting State v. Murray, 2d
Dist. Greene No. 2002-CA-10, 2002-Ohio-4809, ¶ 11.
{¶ 28} In this case, Pennington testified that he was trained to perform the field
sobriety tests that were administered during the traffic stop. Further, Pennington
indicated that the field sobriety tests that were administered in this case were conducted
in a manner that complied with the standardized procedures promulgated by the NHTSA.
He went on to explain the manner in which he performed the tests, and indicated that he
instructed appellant on how to perform the tests before asking appellant to do so. During
cross examination, appellant challenged Pennington’s assertions, pressing Pennington for
details as to how he conducted the field sobriety tests and what clues he was looking for
while appellant completed the tests.
{¶ 29} As he did in his motion to suppress and during the suppression hearing,
appellant now takes issue with the precise manner in which the field sobriety tests were
performed in this case. For example, appellant argues that Pennington should have used
a pen instead of his finger to conduct the horizontal gaze nystagmus test, should have
held his finger at a distance 12-15 inches from appellant’s face, not seven to ten inches as
was done by Pennington in this case, should have provided a straight line for the walk
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and turn test using a curb or a piece of tape, and should have asked appellant if he had
any physical problems or disabilities before beginning the one leg stand test. At most,
the examples provided by appellant in his brief and in the proceedings below call into
question Pennington’s strict compliance with the NHTSA manual. However,
admissibility of the results of the field sobriety tests hinges upon substantial compliance
with the NHTSA manual, not strict compliance. Having reviewed the entire record,
including Pennington’s testimony detailing the specific manner in which he conducted
the tests in this case and noting the tests were conducted in accordance with his training
on the NHTSA field sobriety testing guidelines, we find that Pennington substantially
complied with the NHTSA manual.
{¶ 30} Appellant also challenges the admissibility of the results of the breathalyzer
test conducted in this case. He argues that Pennington improperly administered the test
by failing to observe appellant for a period of at least 20 minutes prior to the test, as
required under the operational checklist for an Intoxilyzer device.
{¶ 31} Notably, appellant’s breathalyzer test was administered after he was
arrested. Therefore, whether the breathalyzer test results are admissible or not has no
bearing on whether Pennington possessed the requisite probable cause to arrest appellant,
which is the argument appellant advances in his sole assignment of error. Moreover, we
find no merit to this argument for the following reasons.
{¶ 32} In order to demonstrate substantial compliance with the 20-minute
observation period that applies to Intoxilyzer testing devices, the state may introduce
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“evidence that during the 20 minutes before the breath test the defendant did not ingest
anything that might skew the test result.” State v. Tenney, 2d Dist. Montgomery No.
24999, 2012-Ohio-3290, ¶ 7, citing State v. Adams, 73 Ohio App.3d 735, 740, 598
N.E.2d 176 (2d Dist.1992). “‘A witness who testifies to that foundational fact is not
required to show that the subject was constantly in his gaze, but only that during the
relevant period the subject was kept in such a location or condition or under such
circumstances that one may reasonably infer that his ingestion of any material without the
knowledge of the witness is unlikely or improbable.’” Id., quoting Adams at 740.
{¶ 33} During the suppression hearing, Pennington explained that appellant was
under his observation from the time of the traffic stop onward. Based upon the video
recording of Pennington’s encounter with appellant, the length of time that passed
between the initiation of the traffic stop and the submission of the breathalyzer samples
easily exceeded 20 minutes. During this time, appellant used the restroom under the
supervision of a deputy. Pennington testified that appellant did not ingest anything
during the time period between his arrest and the administration of the breathalyzer test,
again a period of time that was greater than 20 minutes. On this record, we find no merit
to appellant’s claim that Pennington failed to observe the 20-minute observation period
prior to conducting the breathalyzer test, and we therefore reject appellant’s argument
that the results of the breathalyzer test were inadmissible on that basis.
{¶ 34} In sum, we find that Pennington had probable cause to believe appellant
was operating his vehicle under the influence of alcohol after perceiving appellant’s
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erratic driving, the odor of alcohol coming from appellant’s person, and appellant’s
glossy eyes. As such, the record reflect there was probable cause to arrest appellant
without conducting field sobriety tests. Notwithstanding this conclusion, we further find
that Pennington substantially complied with NHTSA guidelines when he conducted the
field sobriety tests, the results of which provided further evidence of appellant’s
intoxication and an additional basis for probable cause.
{¶ 35} Accordingly, appellant’s sole assignment of error is not well-taken.
III. Conclusion
{¶ 36} In light of the foregoing, the judgment of the Fulton County Court, Western
District, is affirmed. The costs of this appeal are assessed to appellant under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Gene A. Zmuda, P.J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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