[Cite as State v. Malson,
2019-Ohio-4447.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29310
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RICHARD MALSON AKRON MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 17TRC12405
DECISION AND JOURNAL ENTRY
Dated: October 30, 2019
CALLAHAN, Judge.
{¶1} Appellant, Richard Malson, appeals a decision that denied his motion to suppress.
This Court reverses.
I.
{¶2} On July 6, 2017, Mr. Malson rear-ended another vehicle on the Ghent Road exit
ramp from Interstate 77 in Summit County. The Bath Township Police Department responded to
the scene, then called the Ohio State Highway Patrol because the accident occurred on a highway
exit ramp. Trooper Ciera Castillo responded. After noting that Mr. Malson exhibited some
physical indications of alcohol consumption, Trooper Castillo performed field sobriety testing.
At the conclusion of the field sobriety tests, Trooper Castillo placed Mr. Malson under arrest,
and he was transported to the Bath Township Police Department, where he agreed to take a
breathalyzer test. The results of the breathalyzer test indicated that he had a concentration of
.145 grams of alcohol per 210 liters of breath.
2
{¶3} Mr. Malson was charged with driving under the influence of alcohol in violation
of R.C. 4511.19(A)(1)(a) and driving with a prohibited concentration of alcohol in his breath in
violation of R.C. 4511.19(A)(1)(d). He moved to suppress the results of the field sobriety tests
and the breathalyzer test, arguing in part that the field sobriety tests were not conducted in
substantial compliance with National Highway Transportation and Safety Administration
(“NHTSA”) guidelines. He also argued that the results of the breathalyzer test should be
suppressed because, without the results of the field sobriety tests, Trooper Castillo did not have
probable cause to arrest him. In the alternative, Mr. Castillo identified numerous provisions of
the Ohio Administrative Code that regulated breathalyzer testing and urged the trial court to
suppress those results as well.
{¶4} The trial court denied the motion to suppress, noting on the record that “under the
totality of the circumstances there was probable cause to make the arrest.” With respect to Mr.
Malson’s argument that the results of the breathalyzer test should be suppressed, the trial court
concluded that the motion to suppress did not contain sufficient facts to shift the burden to the
State to prove compliance. The case proceeded to trial, and a jury found Mr. Malson guilty of
both charges. The trial court merged the convictions for purposes of sentencing and sentenced
Mr. Malson to 180 days in jail with all but three days suspended. The trial court also suspended
his driver’s license for twelve months and fined him $500.
{¶5} Mr. Malson appealed. He did not assign any errors in connection with the
conduct of the trial or with his convictions. Instead, his three assignments of error relate solely
to the trial court’s decision denying his motion to suppress.
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II.
ASSIGNMENT OF ERROR NO. 1
DID THE TRIAL COURT ERROR [SIC] IN FINDING THAT THE FIELD
SOBRIETY TESTS WERE CONDUCTED IN SUBSTANTIAL COMPLIANCE
WITH THE NHTSA MANUAL WHEN THE STATE FAILED TO
INTRODUCE THE APPLICABLE PORTIONS OF THE NHTSA MANUAL
STANDARDS INTO EVIDENCE[?]
ASSIGNMENT OF ERROR NO. 2
DID THE TRIAL COURT ERROR [SIC] IN FINDING THAT THE FIELD
SOBRIETY TESTS WERE CONDUCTED IN SUBSTANTIAL COMPLIANCE
WITH THE NHTSA MANUAL[?]
{¶6} Mr. Malson’s first two assignments of error allege that the trial court erred by
determining that Trooper Castillo conducted the field sobriety tests in substantial compliance
with the NHTSA guidelines.
{¶7} This Court’s review of the trial court’s ruling on the motion to suppress presents a
mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶ 8.
The trial court acts as the trier of fact during a suppression hearing and is best equipped to
evaluate the credibility of witnesses and resolve questions of fact. Id.; State v. Hopfer,
112 Ohio
App.3d 521, 548 (2d Dist.1996), quoting State v. Venham,
96 Ohio App.3d 649, 653 (4th
Dist.1994). Consequently, this Court accepts a trial court’s findings of fact if supported by
competent, credible evidence. Burnside at ¶ 8. Once this Court has determined that the trial
court’s factual findings are supported by the evidence, we consider the trial court’s legal
conclusions de novo. See id. In other words, this Court accepts the trial court’s findings of fact
as true and “must then independently determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara,
124
Ohio App.3d 706, 710 (4th Dist.1997).
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{¶8} In this case, however, the trial court did not make either findings of fact or
conclusions of law regarding whether Trooper Castillo conducted the field sobriety tests in
substantial compliance with the NHTSA regulations. The trial court did not issue a written
decision denying the motion to suppress, and the trial court’s ruling on the record did not address
the issue. Instead, after concluding that there was reasonable basis for the traffic stop that
preceded the field sobriety tests, the trial court moved on directly to consider the broader issue of
whether there was probable cause for the arrest given the totality of the circumstances:
Secondly, I think we need to move on to whether or not there was probable cause
for the arrest. Trooper Castillo testified at length about the observations she made
about [Mr. Malson]. [Defense counsel], I agree with you that the Horizontal Gaze
Nystagmus was not done in strict compliance with the NHTSA manual nor was
the Walk and Turn. However, for purposes of this hearing, which is a Motion to
Suppress, it’s not putting the State on the burden of beyond a reasonable doubt.
I’m to look at substantial compliance with the NHTSA manual and I’m required,
at this time, to look at the totality of the circumstances surrounding whether or not
at the time for Mr. Malson’s detainment there existed probable cause to arrest him
for the offense of OVI. The Court does find that under the totality of the
circumstances there was probable cause to make the arrest.
This Court is unable to review the substance of Mr. Malson’s first and second assignments of
error at this time because it is unclear whether the “totality of the circumstances” to which the
trial court referred included a consideration of the results of the field sobriety tests. This Court
sustains his first and second assignments of error, therefore, based solely on the trial court’s
failure to make findings of fact and conclusions of law regarding substantial compliance with the
NHTSA guidelines. See generally State v. Mackim, 9th Dist. Summit No. 28741, 2018-
Ohio3033, ¶ 18.
ASSIGNMENT OF ERROR NO. 3
DID THE TRIAL COURT ERROR [SIC] IN FAILING TO SUPPRESS THE
RESULTS OF THE BREATHALYZER TEST WHEN THE STATE FAILED
TO MEET [ITS] EVIDENTIARY BURDEN TO ESTABLISH THAT THE
TEST WAS ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH THE
5
APPLICABLE REVISED CODE AND ADMINISTRATE CODE
REGULATIONS[?]
{¶9} Mr. Malson’s third assignment of error, which challenges the trial court’s decision
with respect to the results of the breathalyzer test administered after his arrest, is premature. This
Court declines to address it at this time.
III.
{¶10} Mr. Malson’s first and second assignments of error are sustained as explained
herein. His third assignment of error is premature. This matter is remanded to the trial court for
the sole purpose of permitting the trial court to make findings of fact and conclusions of law
regarding substantial compliance with the NHTSA guidelines.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron Municipal
Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
PATRICK D. QUINN and RONALD A. ANNOTICO, Attorneys at Law, for Appellant.
EVE V. BELFANCE, Director of Law, and BRIAN D. BREMER and GRACE K. BARNARD,
Assistant Directors of Law, for Appellee.
