[Cite as State v. Hein,
2023-Ohio-1592.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellant : C.A. No. 29668
:
v. : Trial Court Case No. 22-TRC-691
:
RYAN EVENSEN HEIN : (Criminal Appeal from Municipal Court)
:
Appellee :
:
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OPINION
Rendered on May 12, 2023
...........
BARBARA J. DOSECK, STEPHANIE L. COOK, & ALISSA SCHRINER, Attorneys for
Appellee
CHARLES M. ROWLAND, II, Attorney for Appellant
.............
WELBAUM, P.J.
{¶ 1} Plaintiff-Appellant, State of Ohio/City of Dayton (“the City”) appeals from a
trial court judgment granting a motion to suppress filed by Defendant-Appellee, Ryan
Evensen Hein (“Hein”). According to the City, the trial court erred in three ways: (1) by
finding insufficient evidence for the investigatory stop; (2) by finding that field sobriety
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tests were not administered in sufficient compliance with National Highway Traffic Safety
Association (“NHTSA”) standards; and (3) by finding that the University of Dayton Police
Department (“UDPD”) officers lacked probable cause to arrest Hein.
{¶ 2} After reviewing the record, we conclude that the trial court erred in granting
Hein’s motion to suppress evidence. As an initial point, the court made no factual
findings to which an appellate court could defer and also erroneously held the City to a
probable cause standard for the investigatory detention. The City was only required to
show that the police had a reasonable, articulable suspicion of criminal activity.
Furthermore, evidence elicited during the suppression hearing revealed that the police
did have reasonable, articulable suspicion to detain Hein and to administer a field sobriety
test. The test was also administered in substantial compliance with NHTSA standards
and indicated that Hein was intoxicated. Finally, even without the sobriety test results,
the police had probable cause to arrest Hein based on the totality of the circumstances.
Accordingly, the judgment of the trial court will be reversed, and this case will be
remanded for further proceedings.
I. Facts and Course of Proceedings
{¶ 3} On February 14, 2022, the City filed a complaint in Dayton Municipal Court
charging Hein with two offenses: (1) OVI, driving under the influence of alcohol, a drug of
abuse, or a combination of them in violation of R.C. 4511.19(A)(1)(a); and (2) OVI, driving
while having a “concentration of seventeen-hundredths of one gram or more by weight of
alcohol per two hundred ten liters of the person's breath,” in violation of R.C.
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4511.19(A)(1)(h).
{¶ 4} On February 16, 2022, counsel entered a notice of appearance for Hein, a
not guilty plea, and a jury demand. Hein also waived the time for bringing the case to
trial and requested a pretrial conference. On March 16, 2022, Hein filed a motion
seeking limited driving privileges, which was granted on March 23, 2022. Following a
May 9, 2022 pretrial, the court set the case for a July 21, 2022 suppression hearing.
Hein also filed a motion to suppress on May 9, 2022. At the City’s request, the
suppression hearing was then continued until October 3, 2022.
{¶ 5} At the suppression hearing, the court heard testimony from three police
officers who were City witnesses and from a defense expert, who was a retired police
officer. The court took the matter under advisement and, on December 9, 2022, filed a
decision concluding that the police had lacked probable cause to stop, detain, and arrest
Hein. The court further found that the UDPD sobriety tests had not been administered
in substantial compliance with NHTSA standards. The court therefore granted the
motion to suppress.
{¶ 6} On December 9, 2022, the City filed a notice of appeal and a certification
under Crim.R. 12(K). Pursuant to the City’s request, we expedited the appeal. See
State v. Hein, Order to Expedite (Dec. 20, 2022). We note that the City’s reply brief was
untimely filed on April 11, 2023, almost a month after Hein’s brief had been served on
March 15, 2023. See App.R. 18(A) (“appellant may serve and file a reply brief within ten
days after service of the brief of appellee”). The City also did not file a request for an
extension of time showing good cause as required by App.R. 16(B). As a result, we will
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not consider the City’s reply brief.
{¶ 7} We also had to file two show cause orders in this case. The first was issued
because the time for completing the record by filing the transcript had expired; the second
was based on the fact that the time for filing Hein’s brief had passed. See State v. Hein,
Show Cause Order (Jan 24, 2023) (directed to the City), and State v. Hein, Show Cause
Order (Mar. 14, 2023) (directed to Hein). Neither side had asked for extensions of time
before our show cause orders were issued, but both parties did comply by filing the
respective items within the 14-day time period listed in the orders. As a result, the show
cause orders are deemed satisfied.
II. Sufficiency of Evidence to Support the Stop
{¶ 8} The City’s first assignment of error states that:
The Trial Court Erred in Finding That There Was Insufficient
Evidence to Stop and Detain Hein.
{¶ 9} Under this assignment of error, the City contends that the trial court erred in
applying a probable cause standard to the stop, as opposed to a reasonable suspicion
standard. In addition, the City argues that UDPD had sufficient justification to detain
Hein.
{¶ 10} Before we address the City’s arguments, we will outline general principles
relating to suppression and police stops. This case is a bit unusual because UDPD did
not stop Hein for a traffic violation and then administer sobriety tests; instead, he was
detained, given a sobriety test, and ultimately arrested after an-off duty police officer who
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was working as a Door-Dash delivery person waved down the police and complained
about Hein’s erratic driving. Notably, just moments earlier, the police had witnessed
Hein driving in violation of the law and were looking for his car.
A. Review of Suppression Decisions
{¶ 11} “Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the
trial court's findings of fact if they are supported by competent, credible evidence. …
Accepting these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.” (Citations omitted.)
Id.
{¶ 12} The trial court here did not make any factual findings. Consequently, there
are no facts that we are required to accept. In its December 9, 2022 decision, the court
stated simply that UDPD “lacked probable cause to stop, detain, and arrest the
Defendant.” Decision and Entry (Dec. 9, 2022) (“Decision”), p. 1.
{¶ 13} The court did not mention “reasonable suspicion” or distinguish between
reasonable suspicion and probable cause. We note that during closing argument at the
suppression hearing, the City did specifically distinguish between reasonable suspicion
for a stop or detention and probable cause for an arrest. Transcript of Proceedings
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(“Tr.”), p. 116. However, that does not mean the trial court’s decision was based on such
distinctions, particularly since the court mentioned only “probable cause.” We cannot
assume what the court thought, absent an explanation.
B. Search and Seizure Guarantees
{¶ 14} “The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution guarantee ‘the right of people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.’ ”
(Emphasis sic.) State v. Taylor, 106 Ohio App.3d 741, 747,
667 N.E.2d 60 (2d
Dist.1995). “The United States Supreme Court has created three categories of police-
citizen contact to identify the situations where these guarantees are implicated.”
Id.,
citing Florida v. Royer,
460 U.S. 491, 501-507,
103 S.Ct. 1319,
75 L.Ed.2d 229 (1982).
These categories are: consensual encounters; Terry stops or investigative detentions;
and seizures equivalent to arrests. Id. at 747-749. The case before us involves only
the latter two types of police-citizen contact.
1. Terry Stops
{¶ 15} “Under Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868,
20 L.Ed.2d 889 (1968), a
police officer who lacks probable cause to arrest may, consistent with the Fourth
Amendment, make an investigatory stop, including a traffic stop, of a person if the officer
has reasonable suspicion to believe that the person is or is about to be engaged in
criminal activity.” State v. Tidwell,
165 Ohio St.3d 57,
2021-Ohio-2072,
175 N.E.3d 527,
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¶ 19, citing Navarette v. California, 572 U.S. 393, 396,
134 S.Ct. 1683,
188 L.Ed.2d 680
(2014).
{¶ 16} “Reasonable suspicion for a Terry stop ‘is dependent upon both the content
of information possessed by police and its degree of reliability.’ ” Id. at ¶ 20, quoting
Alabama v. White, 496 U.S. 325, 330,
110 S.Ct. 2412,
110 L.Ed.2d 301 (1990). “ ‘Both
factors – quantity and quality – are considered in the “totality of the circumstances – the
whole picture,” … that must be taken into account when evaluating whether there is
reasonable suspicion.’ ”
Id., quoting
White at 330, quoting United States v. Cortez,
449
U.S. 411, 417,
101 S.Ct. 690,
66 L.Ed.2d 621 (1981). “The ‘reasonable and articulable
suspicion’ analysis is based on the collection of factors, not on the individual factors
themselves.” (Emphasis sic.) State v. Batchili,
113 Ohio St.3d 403,
2007-Ohio-2204,
865 N.E.2d 1282, ¶ 19, citing United States v. Arvizu,
534 U.S. 266, 274,
122 S.Ct. 744,
151 L.Ed.2d 740 (2002).
{¶ 17} “Police officers may ‘draw on their own experience and specialized training
to make inferences from and deductions about the cumulative information available to
them that “might well elude an untrained person.” ’ ” Tidwell at ¶ 20, quoting
Arvizu at
273. (Other citation omitted.)
2. Probable Cause for an Arrest
{¶ 18} The Supreme Court of Ohio has stressed that “[p]robable cause is a stricter
standard than reasonable and articulable suspicion.” State v. Mays, 119 Ohio St.3d 406,
2008-Ohio-4539,
894 N.E.2d 1204, ¶ 23, citing State v. Evans,
67 Ohio St.3d 405, 411,
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618 N.E.2d 162 (1993). “A warrantless arrest that is based upon probable cause and
occurs in a public place does not violate the Fourth Amendment.” State v. Brown,
115
Ohio St.3d 55,
2007-Ohio-4837,
873 N.E.2d 858, ¶ 66, citing United States v. Watson,
423 U.S. 411,
96 S.Ct. 820,
46 L.Ed.2d 598 (1976). “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). “Ohio decisions
have interpreted this definition to include the ‘totality’ of facts and circumstances
surrounding the arrest.” (Citations omitted.) State v. Brandenburg,
41 Ohio App.3d
109, 111,
534 N.E.2d 906 (2d Dist.1987). “Probable cause may exist even in the
absence of any evidence of impaired motor coordination.”
Id., citing State v. Finch,
24
Ohio App.3d 38,
492 N.E.2d 1254 (12th Dist.1985).
{¶ 19} Having outlined the general standards that apply, we will first consider
whether the trial court erred in finding insufficient evidence to justify the stop.
C. Discussion
{¶ 20} Clearly, the standards for reasonable suspicion and probable cause differ,
and the trial court erred in failing to distinguish between these concepts. The court
therefore incorrectly held the City to a higher standard for stopping Hein and conducting
the field sobriety tests. However, this error might not be prejudicial if the evidence fails
to establish that the police had reasonable suspicion to detain Hein and to conduct
sobriety tests.
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{¶ 21} The facts elicited during the suppression hearing were as follows. On
February 11, 2022, Sgt. David McIntosh was employed by the UDPD. McInstosh had
been employed by the University of Dayton (UD) for 16 years and had been in law
enforcement for a total of 22 years. Tr. at p. 7-8. At around 1:00 a.m., while driving a
marked cruiser northbound on Brown Street in Dayton, Ohio, McIntosh observed a car
cross the crosswalk at Caldwell Avenue, where there was a posted traffic light. McIntosh
had the right-of-way and had to brake to avoid being struck. McIntosh noticed that a
male was operating the other car (later identified as Hein’s car) and that a Hawaiian lei
was hanging from the rearview mirror. Id. at p. 9.
{¶ 22} McInstosh did not activate his emergency lights. Id. at p. 37-38. At that
point, McInstosh went down to Jasper Street, which was just through the intersection, to
try to turn around. McIntosh thought he saw Hein’s car drive down K-Street (which is
owned by UD and splits UD’s parking lots) and continue onto Rubicon Avenue. That
was when McIntosh lost track of the car until he came down Jasper. Id. At this time
(which was between 30 seconds and a couple of minutes later), McIntosh and his partner,
Sgt. Tiffany Oldham, were waved down by a man who identified himself as an off-duty
police officer. The officer, Aaron Smith, Sr., told the police that a driver had been driving
in an erratic manner close to the rear of Smith’s car, and had been zigzagging, flashing
the vehicle’s lights, and blowing the horn. Id. at p. 9, 10-11, 22, and 35, and State’s Ex.
2 (Smith’s witness statement). According to body camera video of the conversation with
Smith (one of six videos we reviewed), Smith also told the police that when he initially
encountered Hein, Hein had stumbled, and Smith said to Hein, “Oh, you’re drunk.”
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AXON_ Body_2_Video_2022-2-11_0108-2 (“Video 108-2”), 6:10:46-10:50. Smith’s
statement was made before the police administered sobriety tests. Hein had exited his
car and had walked toward Smith before the police arrived. Id. at State’s Ex. 2.
{¶ 23} When Smith pointed to the vehicle that had been flashing its lights, Sgt.
McIntosh noticed the lei and realized that it (Hein’s car) was the one that had almost hit
his cruiser. Tr. at p. 11-12 and 13-14.
{¶ 24} Sgt. Oldham interacted with Hein at the scene before sobriety tests were
administered. She described Hein as having a strong odor of alcohol, which is why she
asked him how much he had to drink. Hein also had glassy eyes and, according to
Oldham’s report, slurred speech. Id. at p. 23 and 34. Hein responded that he had
consumed two glasses of wine. Id. at p. 26. In a supplemental report dated February
11, 2022, at 06:23, Oldham reported that she had detected a “strong odor” of alcohol.
State’s Ex. 1 (Hein, Ryan 22TRC691), Supplemental Case Report, p. 1 (Oldham).
UDPD Officer Klei subsequently administered field sobriety tests. Tr. at p. 24.
{¶ 25} At the time of this incident, Officer Klei had been a police officer for UDPD
since November 2021. Id. at p. 39-40. Klei was a field training officer, which meant she
was under the supervision of another officer. Id. at p. 42-43. Klei’s prior law
enforcement experience was as a public safety officer for Metro Parks for three months.
During 2021, Klei also had six months of training at a police academy, including a week
of training on detecting persons who were under the influence of alcohol. Id. at p. 40-41.
The training included field sobriety test administration according to the 2018 NHTSA
manual. Id. at p. 41.
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{¶ 26} During her testimony at the suppression hearing, Klei described her
administration of sobriety tests to Hein, including the “one leg stand, walk and turn, and
H.G.N.” Id. at p. 46. The City also played the video of that encounter, which is
contained in Video 108-2. Id. at p. 47, 49, 51, and 54. Klei observed one clue during
the one leg stand, three of eight clues on the walk and turn test, and six of six clues on
the HGN (lack of smooth pursuit in both eyes, maximum deviation in both eyes, and onset
of nystagmus in both eyes). Id. at p. 47-48, 50, 55-56, 65, and 67-68, and State’s Ex. 2.
The latter two test results indicated a blood alcohol content of above point one percent,
i.e., the legal limit. Tr. at p. 48, 51, 56. After speaking with her supervisor, Klei arrested
Hein for OVI. Id. at p. 56. Klei also stated that she had observed Hein having slurred
speech and that he had not listened to her instructions when she was conducting the
tests. Id. at p. 60.
{¶ 27} Before performing the sobriety test, Klei had also talked to Smith about what
he had observed. Id. at p. 76. Again, the body cam video (Video 108-2) contains
Smith’s statements about Hein, including that Hein was stumbling and was drunk. Klei
further recalled getting Smith’s written statement before conducting the field test. Tr. at
p, 76. During cross-examination, Klei admitted that she did not perform the tests in the
specific order the NHTSA manual dictated. Instead, she conducted them in reverse
order. Klei stated that NHTSA “didn’t really harp on doing a specific order. They just
harp on how to do the test.” Id. at p. 58-59 and 70-72.
{¶ 28} Hein’s expert was Lee Edwards, a retired police officer who had made
several hundred DUI arrests during his career. Edwards retired in 2001 and became an
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NHTSA instructor that year. At the time of his testimony, Edwards was employed as an
adjunct professor at Sinclair Community College and was the executive officer of the
police academy at Sinclair. Tr. at p. 82-83. During a 22-year teaching career, Edwards
had evaluated 10,000 to 15,000 tests done by cadets during their training. Id. at p. 84.
{¶ 29} According to Edwards, if sobriety tests are not conducted in the particular
way NHTSA indicates (i.e., if any standardized field test element is changed), the validity
of the test “may be compromised, which may make the test invalid.” Id. at p. 84-85, 102,
and 103, and Defense Ex. A., quoting NHTSA Manual, p. VIII-19. The order of the tests
is: HGN, walk and turn, and one-leg stand. Tr. at p. 88. Additionally, with respect to the
HGN test, Edwards stated that if this test is not administered in the specified order (three
different tests are involved), stress is placed on the eyes. Id. at p. 96-97.
{¶ 30} Edwards concluded that probable cause for an arrest had not existed in this
case. He stated that odor is not a NHTSA standard and is not indicative of impairment
because it is not objective and the pervasiveness or strength of odor is based on how
sensitive a person may be. Id. at p. 90. Likewise, bloodshot or glassy eyes are not
NHTSA standards either, because studies on which NHTSA is based indicate that these
symptoms are more likely due to medical and environmental reasons than to prohibited
substances. Id. at p. 90-92.
{¶ 31} As a further matter, after viewing the videotape, Edwards did not find Hein’s
speech to be slurred or indicative of what he had seen in his career when people were
impaired. Id. at p. 93-94. Edwards also viewed all the video and never saw Hein
stumble. Id. at p. 111-112. Edwards did say that he did not disagree about any of the
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clues that Officer Klei saw. Id. at p. 95-96 and 105. Additionally, Edwards testified that
he was not aware of any scientific basis for doing sobriety tests in a certain order. Id. at
p. 100-101.
{¶ 32} Our review of the evidence indicates that the police did have reasonable
suspicion to detain Hein for purposes of conducting a sobriety test. In the first place, the
police were waved down by an off-duty police officer who had observed Hein driving
erratically and had seen Hein stumble after he exited his car. The officer, in fact, told
police that Hein was “drunk.”
{¶ 33} Tidwell involved a similar situation, although the facts relating to informant
reliability were stronger here. In Tidwell, a police officer was investigating an accident
and had directed the involved drivers into the parking lot of a Speedway gas station.
During the investigation, a man in the lot yelled at the officer, “ ‘Hey, you need to stop that
vehicle. That lady is drunk.’ ” Tidwell, 165 Ohio St.3d 57,
2021-Ohio-2072,
175 N.E.3d
527, at ¶ 2-3. The officer did not know the man’s identity, but after watching the vehicle
back up unusually slowly and observing a blank stare on the driver’s face, the officer
stopped the vehicle and questioned the driver. He then made other observations that
led him to believe the driver was impaired. Another officer who arrived on the scene also
made similar observations and, after conducting sobriety tests, arrested the defendant for
driving while intoxicated. Id. at ¶ 4-13.
{¶ 34} After the trial court granted a motion to suppress, the court of appeals found
that the original “officer lacked reasonable suspicion necessary to effectuate a lawful
investigatory stop because the unidentified Speedway customer's anonymous tip lacked
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sufficient indicia of reliability and there was no evidence of any erratic driving by [the
defendant] prior to the stop.” Id. at ¶ 15. The Supreme Court of Ohio disagreed,
concluding that there had been reasonable suspicion to investigate based on the
unidentified informant’s tip and the officer’s partial corroboration. Id. at ¶ 54.
{¶ 35} In discussing informants, the court stressed that the police can rely on
information supplied by others, rather than just on their own observations. Id. at ¶ 24,
citing Navarette, 572 U.S. at 397,
134 S.Ct. 1683,
188 L.Ed.2d 680. The court further
remarked that “[i]n attempting to ascertain whether information provided by an informant's
tip bore some indicia of reliability that established reasonable suspicion for an
investigatory stop, many courts, including this court, have found it useful to place the
informant into one of three categories: (1) anonymous informant, (2) known informant
(someone from the criminal world who has provided previous reliable tips), and (3)
identified citizen informant.” Id. at ¶ 29, citing Maumee v. Weisner,
87 Ohio St.3d 295,
300,
720 N.E.2d 507 (1999), and State v. Jordan,
104 Ohio St.3d 21,
2004-Ohio-6085,
817 N.E.2d 864, ¶ 36, overruled on other grounds, State v. Harper,
160 Ohio St.3d 480,
2020-Ohio-2913,
159 N.E.3d 248.
{¶ 36} Because the informant in Tidwell had characteristics of both an anonymous
informant (to whom less reliability is accorded) and an identified citizen informant, the
court did not decide his specific status. The court therefore considered the totality of the
circumstances, including the officer’s own observations, in finding the stop reasonable.
Id. at ¶ 33-52. In contrast to the informant in Tidwell, Aaron Smith was clearly an
identified citizen informant.
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{¶ 37} As noted, assessment of reasonable suspicion involves both the content of
the information the police possess and its reliability. Tidwell, 165 Ohio St.3d 57, 2021-
Ohio-2072,
175 N.E.3d 527, at ¶ 20. “[A]n identified citizen informant may be highly
reliable and, therefore, a strong showing as to the other indicia of reliability may be
unnecessary: ‘[I]f an unquestionably honest citizen comes forward with a report of criminal
activity – which if fabricated would subject him to criminal liability – we have found rigorous
scrutiny of the basis of his knowledge unnecessary.’ ” Weisner at 300, quoting Illinois v.
Gates,
462 U.S. 213, 233-234,
76 L.Ed.2d 527,
103 S.Ct. 2317 (1983).
{¶ 38} Here, the informant was very reliable, because Smith was a police officer
and waved down the police immediately after observing Hein’s erratic driving and signs
indicating Hein was impaired. As an officer, Smith would have been aware of liability
that could result from making false reports. Furthermore, while not strictly necessary in
this case, Officer McIntosh identified Hein’s car as the one that had caused the prior traffic
incident. See AXON_Body_2_Video_2022-2-11_0107, 6:10:37-10:58; and AXON_
Body_2_Video_2022-2-11_0108, 6:10:11:13 – 11:23.
{¶ 39} Accordingly, there is no question here that reasonable, articulable suspicion
existed for Hein’s detention and the administration of field sobriety tests. The City’s first
assignment of error is sustained.
III. Administration of Sobriety Tests
{¶ 40} The City’s second assignment of error is as follows:
The Trial Court Erred in Finding That the Field Sobriety Tests Were
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Not Administered in Substantial Compliance With NHTSA Standards.
{¶ 41} Under this assignment of error, the City contends that the trial court’s
conclusion about administration of the field sobriety test was not supported by the
evidence. The City points out that the trial court made no specific factual findings and
that Hein’s expert disagreed with Officer Klei’s interpretation of Hein’s behavior rather
than how the test was administered. In responding, Hein notes several deficiencies in
Klei’s testimony. One is that Klei used her own “clues” for the one-leg stand, which
according to Hein, “alone” demonstrates that “the Court is correct in concluding the officer
has substituted her standards thus invalidating all of the tests ….” Appellee’s Brief, p.
8-9. Hein further contends that Klei did not know how many clues to look for on the walk-
and-turn test, was unclear on whether she was trained to look for the exact onset angle,
and did not perform the tests in the order that NHTSA designates. Id. at p. 9-10.
{¶ 42} “The applicable legal requirement for admission of field sobriety tests is
whether they were conducted in substantial compliance with NHTSA standards.” State
v. Tyner, 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, ¶ 7, citing R.C.
4511.19(D)(4)(b) and State v. Davis, 2d Dist. Clark No. 2008-CA-65,
2009-Ohio-3759,
¶ 14-15. Substantial compliance “ ‘is a legal standard for a court's determination.’ ”
Id.,
quoting Davis at ¶ 18. “ ‘We defer to the trial court's factual findings and independently
determine whether they demonstrate substantial compliance’ with the standards.”
Id.
{¶ 43} As with the trial court’s holding on the subject of investigatory detention,
there were no factual findings concerning compliance with NHTSA standards, and nothing
for which appellate deference is required.
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{¶ 44} “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. Boles, 2020-Ohio-4485,
158 N.E.3d 1013, ¶ 15 (2d Dist.), citing 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.” ’ ”
Id., quoting State v. Murray, 2d Dist. Greene No.
2002-CA-10,
2002-Ohio-4809, ¶ 11. (Other citation omitted.) “ ‘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.’ ”
Id., quoting
State v. Reynolds, 2d Dist. Greene No. 2012-CA-64,
2014-Ohio-3642, ¶ 27. (Other
citation omitted.)
{¶ 45} As a preliminary point, Officer Klei stated that she had performed the tests
on Hein in accordance with NHTSA standards and that she had read directions from a
card to make sure that she was performing to the best of her abilities and “per NHTSA
standards.” Tr. at p. 45-46. Klei described the testing in detail, and video of the testing
was also played during the hearing. Id. at p. 47-48 and Video 108-2. As indicated, we
have watched all the videos.
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{¶ 46} Contrary to Hein’s inference, Klei was not incorrect about the number of
clues on the walk-and-turn test. During direct examination, Klei correctly stated that the
number of clues were eight. Id. at p. 51. On cross-examination, Klei first stated six,
which was obviously a misstatement, but after being reminded by defense counsel of the
number of clues, she immediately corrected the amount to what was consistent with her
prior testimony. Id. at p. 65. This was a very minor issue. Klei did incorrectly testify
that the one-leg stand had six clues, when there were four. Id. at p. 60. However, the
checklist Klei filled out the night of the incident contained the correct number of boxes,
and she accurately filled out the form. See State’s Ex. 3. As an additional matter, we
find no fault in Klei’s comment that she had observed additional clues, like the fact that
Hein began the one-leg stand early and did not comply with instructions. Tr. at p. 47-48.
Klei marked the test for the one-leg stand appropriately, and she was entitled to make
other observations that might indicate to a reasonable person that Hein was intoxicated.
{¶ 47} We also note that the report of Hein’s expert, Edwards, did not criticize Klei’s
administration of the test. See Defense Ex. A. And, as previously noted, the expert’s
major criticisms concerned signs like glassy or bloodshot eyes and alcohol odor, which,
by Edward’s own admission, are not part of NHTSA standards.
{¶ 48} More critical, however (and fatal to Hein’s argument), are two matters: (1)
Edwards admitted he was not aware of any scientific basis for performing tests in a
particular order; and (2) Edwards did not challenge Klei’s findings on the tests
themselves. As previously noted, Klei found three clues out of eight on the walk and
stand test, and six clues out of a possible six on the HGN test. The score on either test
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indicated a level of intoxication exceeding the legal limit. Consequently, there was no
logical basis for the trial court’s conclusion that Klei had failed to sufficiently comply with
NHTSA standards.
{¶ 49} In light of the preceding discussion, the City’s second assignment of error
is sustained.
IV. Probable Cause
{¶ 50} The City’s third assignment of error states that:
The Trial Court Erred in Finding That UDPD Lacked Probable Cause
to Detain Hein.
{¶ 51} Under this assignment of error, the City contends that even without the
sobriety tests, probable cause existed to arrest Hein for OVI. Again, the trial court did
not make factual findings, and no basis for deference exists on this point. In addition,
we have already concluded that Officer Klei’s testing substantially complied with NHTSA
standards.
{¶ 52} “An individual's performance on field sobriety tests is one means of showing
that he or she was under the influence of alcohol.” Boles, 2020-Ohio-4485,
158 N.E.3d
1013, at ¶ 35, citing State v. Donovan, 2d Dist. Clark No. 02CA0052,
2003-Ohio-1045,
¶ 25. However, this is not the only means. “ ‘Probable 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.
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Instead, the totality of the circumstances is considered. Id.
{¶ 53} The totality of circumstances here included that two police officers had seen
Hein nearly run a red light and stop well after the cross bar for an intersection; the officers
had had the right of way and avoided an accident only by braking. Tr. at p. 9 and State’s
Ex. 1 (Hein, Ryan 22TRC691), Supplemental Case Report at p. 1 (Oldham). While trying
to locate Hein’s car, the police then encountered an off-duty police officer who had
observed Hein driving erratically. This was within a few minutes after the initial
encounter. When Hein got out of his car and approached the off-duty officer, Hein was
stumbling and the officer concluded Hein was intoxicated. All this was communicated to
the UDPD police. And, when Officer Oldham spoke with Hein, she detected a strong
smell of alcohol; she also said that Hein’s eyes were glassy and that he slurred his
speech. These facts, even without the sobriety test, would have caused a reasonably
prudent person to believe that Hein had committed a crime. Adams, 2d Dist.
Montgomery No. 24184, 2011-Ohio-4008, at ¶ 7. Accordingly, the City’s third
assignment of error also has merit and is sustained.
V. Conclusion
{¶ 54} All of the City’s assignments of error having been sustained, the judgment
of the trial court is reversed, and this cause is remanded for further proceedings.
.............
TUCKER, J. and EPLEY, J., concur.
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