State v. Ruffin

[Cite as State v. Ruffin, 

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY

State of Ohio                                     Court of Appeals No. WD-23-058

        Appellee                                  Trial Court No. 2022 CR 0550


v.

Alan F. Ruffin                                    DECISION AND JUDGMENT

        Appellant                                 Decided: November 27, 2024

                                             …

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.

        Joseph Sobecki, for appellant.

                                             …

        SULEK, P.J.

        {¶ 1} Appellant Alan Ruffin appeals the judgment of the Wood County Court of

Common Pleas, convicting him following a plea of no contest to two counts of operating

a vehicle under the influence of alcohol. Ruffin contends that the trial court erred in

denying his motion to suppress evidence from his traffic stop and arrest. Because the

officer had reasonable suspicion to administer field sobriety tests and probable cause to
arrest Ruffin on suspicion of operating a vehicle under the influence, the trial court’s

judgment is affirmed.

                     I. Factual Background and Procedural History

       {¶ 2} On December 22, 2022, the Wood County Grand Jury indicted Ruffin on

one count of operating a vehicle under the influence of alcohol (“OVI”) in violation of

R.C. 4511.19(A)(1)(a) and (G)(1)(d), a felony of the fourth degree, and one count of OVI

in violation of R.C. 4511.19(A)(2)(a), (A)(2)(b), and (G)(1)(d), a felony of the fourth

degree. Ruffin was granted until March 15, 2023, to file any pretrial motions. On March

16, 2023, he filed his motion to suppress evidence, arguing that there was no reasonable

suspicion to initiate field sobriety testing, that the field sobriety tests were not

administered in substantial compliance with NHSTA standards, and that there was no

probable cause for his arrest.

       {¶ 3} Prior to the suppression hearing being held, Ruffin filed a motion on March

27, 2023, seeking leave to file further pretrial motions once he receives requested

evidence from the State, including, inter alia, “Calibration, maintenance, and use records

for all chemical testing machines used by the Northwood Police Department or located at

the Wood County Detention Center.”

       {¶ 4} The suppression hearing was held on May 19, 2023, which revealed the

following facts. At approximately 1:00 a.m. on November 30, 2022, Ruffin was involved

in an automobile accident with a semi-truck in a construction zone on northbound

Interstate 75 in Wood County, Ohio. Officer Aaron Hunt of the Northwood Police




2.
Department responded to the scene. Hunt met with another responding officer from the

Rossford Police Department, who informed him of a “smell” in Ruffin’s car. Video from

Hunt’s body-worn camera showed that upon his arrival, he observed damage to both the

left and right sides of Ruffin’s vehicle. As Hunt was looking at the damage, Ruffin

exited his car and walked to the rear also to look at the damage. Hunt asked for Ruffin’s

license, which Ruffin provided. Hunt then asked for proof of insurance. Ruffin opened

the passenger door and looked through the glove box to find the proof of insurance.

       {¶ 5} Hunt asked what happened, and Ruffin described that the semi-truck tried to

merge into the left lane where Ruffin already was. He stated that the two vehicles

collided. Hunt then asked Ruffin how much he had to drink that night because he could

smell the alcohol coming off his breath. Ruffin responded, “that ain’t got nothing to do

with it.” At that point, Ruffin’s countenance changed, and he appeared defeated and

resigned to his belief that he was going to be cited for OVI.

       {¶ 6} Hunt asked Ruffin to move to a spot further off the roadway, but Ruffin

moved to the back of his car and refused to go any further. While standing at the back of

his car, Ruffin was facing the semi-truck, which had its hazard lights turned on. When

Hunt asked if he had any problems with his eyes, Ruffin responded that he had glaucoma.

Hunt proceeded to administer a horizontal gaze nystagmus (“HGN”) test. He instructed

Ruffin to follow the tip of his pen with his eyes and keep his head still. When he moved

the pen to the outer edges of Ruffin’s periphery, Hunt commented that Ruffin was not

following the pen all the way. Ruffin responded that “you going to do it anyway.” Hunt




3.
testified that he observed four out of six indicators for intoxication during the HGN test,

and that he could not observe the final two because Ruffin did not follow the pen to the

edge of his periphery.

       {¶ 7} Hunt then offered additional field sobriety tests, which Ruffin said he would

love to do but that they were set up for him to fail. Hunt eventually instructed Ruffin to

walk in a straight line heel to toe. Ruffin refused to participate in the test.

       {¶ 8} Hunt then placed him under arrest. He explained that his determination of

probable cause was based upon the odor of alcohol, Ruffin’s glassy eyes, the results of

the HGN test, and Ruffin’s involvement in a traffic accident at 1:00 a.m.

       {¶ 9} Ruffin was later transported to the police station where he also refused to

take a chemical breath test. At the suppression hearing, the State attempted to introduce

evidence and testimony related to Ruffin’s refusal to submit to the breath test, but Ruffin

objected on the grounds that it was irrelevant to his suppression motion. The trial court

agreed and sustained Ruffin’s objection.

       {¶ 10} At the beginning of Hunt’s cross-examination, Ruffin requested that the

trial court take judicial notice of the entire NHTSA Participant Manual. The court

declined to take judicial notice of the 600-page manual, and instructed Ruffin that he

could continue with the hearing. Later, Ruffin attempted to admit the complete manual

as a defense exhibit. The trial court denied its admission but allowed Ruffin to cross-

examine Hunt on specific portions of it.




4.
       {¶ 11} On the specifics of the HGN test, Hunt testified that he did not tell Ruffin

before the test that he was going to test his eyes, nor did he ask Ruffin if he was wearing

contacts. Hunt did not instruct Ruffin to stand with his feet together, hands at the side,

and to hold his hands still, but he did instruct Ruffin to follow the pen with his eyes only.

Hunt also checked for equal pupil size prior to beginning the passes with the pen. Hunt

admitted that he did not hold the pen steady for four seconds at maximum deviation twice

on each eye but explained that that was the portion of the test where Ruffin was not

maintaining visual focus on the pen, so he did not note any clues on distinct and sustained

nystagmus. Hunt also testified that he was trained to turn off his overhead flashing lights

and limit as many distractions as possible when administering the HGN test,

acknowledging that he should “[t]ry to face [the] subject away from flashing or strobe

lights that could cause visual or other distractions that could impede the test.” He stated

that he tried to move Ruffin to a different location to reduce distractions, but Ruffin

refused. Consequently, Ruffin was facing the blinking hazard lights of the semi-truck,

which was about a 12-second walk away from where the HGN test was administered. In

addition, Ruffin was facing rapidly moving traffic in close proximity on Interstate 75.

       {¶ 12} When asked what factors were present that gave him reasonable suspicion

to conduct the field sobriety tests, Hunt listed the odor of alcohol, Ruffin’s glassy eyes,

and the fact that Ruffin was involved in a traffic accident at 1:00 a.m. even though Hunt

had not determined the cause of the accident at that point. Hunt did not, however,

observe Ruffin to have any dexterity issues, unsteadiness, swaying, or an unkempt




5.
appearance. Nor did he notice Ruffin fumble with any document or fail to locate any

document. He also did not see any alcohol containers in the vehicle.

       {¶ 13} Following the suppression hearing, the trial court entered its judgment on

July 11, 2023, denying Ruffin’s motion to suppress. It found that Hunt had reasonable

suspicion to initiate field sobriety tests based on (1) the traffic accident that occurred at

1:00 a.m., (2) the odor of alcohol coming from Ruffin, (3) Ruffin’s eyes appearing to be

glassy, and (4) Ruffin’s response that the amount of alcohol that he consumed “ain’t got

nothing to do with it.”

       {¶ 14} The trial court then found that Hunt conducted the field sobriety tests in

substantial compliance with the NHTSA manual for five reasons. First, Hunt asked

Ruffin if he could check his eyes and asked whether he had any problems with his eyes.

Ruffin responded that he had glaucoma, but Hunt testified that his training informed him

that glaucoma does not affect nystagmus. Second, Hunt positioned his pen in front of

Ruffin’s eyes and instructed him to follow the tip of the pen with his eyes only and to not

move his head. Third, Hunt checked for equal pupil size at the beginning of the testing.

Fourth, Hunt made at least eight passes of Ruffin’s eyes during the HGN test and

observed four out of six clues of impairment. He was unable to observe six out of six

clues because Ruffin would not maintain focus on the pen for the duration of time needed

to observe possible nystagmus at maximum deviation. Fifth, Hunt testified that the

blinking hazard lights of the semi-truck and the passing traffic on Interstate 75 did not

interfere with the HGN test. The court noted that no evidence was presented to show that




6.
Ruffin exhibited optokinetic nystagmus due to the blinking hazard lights of the semi-

truck or the passing traffic. Further, although Ruffin argued that the lights and traffic

made it difficult for him to focus on the pen, the court disagreed and found that Ruffin,

himself, interfered with the administration of the HGN test when his eyes did not follow

the pen out to the side for the required duration of time.

       {¶ 15} Finally, the trial court found that probable cause existed for the arrest based

on the totality of the circumstances including (1) the traffic accident late at night, whether

or not Ruffin was at fault, (2) the odor of alcohol, (3) Ruffin’s glassy eyes, (4) Ruffin’s

response that how much he had to drink “ain’t got nothing to do with it,” (5) Hunt

observing four out of six clues from the HGN test, and (6) Ruffin’s “pleasant[ly]

uncooperative” failure to perform the walk and turn test.

       {¶ 16} Thereafter, on September 8, 2023, Ruffin filed a supplemental motion in

support of his original March 27, 2023 “Motion for Leave to File Pretrial Motions.”

Ruffin sought leave to file a second suppression motion challenging purported violations

related to the chemical breath test that he refused to take. The trial court denied the

motion that same day.

       {¶ 17} Ultimately on September 20, 2023, when the case was set to begin for a

jury trial, Ruffin withdrew his plea of not guilty and entered a plea of no contest to the

two OVI counts in the indictment as charged. The trial court accepted Ruffin’s plea and

found him guilty. At sentencing, the trial court merged the two offenses, with the State




7.
electing to proceed on the second count. The trial court ordered Ruffin to serve a

mandatory jail sentence of 120 days, followed by three years of community control.

                                 II. Assignments of Error

       {¶ 18} Ruffin timely appeals his judgment of conviction and asserts three

assignments of error for review:

              1. The trial court erred by failing to take judicial notice of the

       NHTSA manual.

              2. The trial court erred by denying Ruffin’s motion to suppress

       evidence.

              3. The trial court erred by denying Ruffin’s motion for leave to file

       a second suppression motion after the State withheld evidence and Ruffin

       requested leave to file before the first suppression hearing.

                                        III. Analysis

                                     A. Judicial Notice

       {¶ 19} In his first assignment of error, Ruffin argues that the trial court erred when

it did not take judicial notice of the entire 600-page NHTSA manual. Alternatively, he

argues that the court erred when it did not allow him to admit the entire manual.

       {¶ 20} As an initial matter, it should be noted that “the Rules of Evidence do not

apply to suppression hearings.” State v. Boczar, 

, ¶ 17, citing Evid.R.

101(D)(1) and 104(A). Nonetheless, Evid.R. 201 provides for judicial notice of

adjudicative facts. “A judicially noticed fact must be one not subject to reasonable




8.
dispute in that it is either (1) generally known within the territorial jurisdiction of the trial

court or (2) capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned.” Evid.R. 201(B). A trial court may take

judicial notice on its own, whether requested or not, but “shall take judicial notice if

requested by a party and supplied with the necessary information.” Evid.R. 201(C) and

(D). As to the NHTSA manual, this court has held that “a trial court may take judicial

notice of the NHTSA standards governing the administration of field sobriety tests,

including the HGN test.” State v. Cook, 

 (6th Dist.), quoting State

v. Stritch, 

 (2d Dist.).

       {¶ 21} In this case, it is not necessary to determine the extent to which the trial

court did or did not err in refusing to admit or take judicial notice of the entire NHTSA

manual because in either event any error would be harmless. Under Crim.R. 52(A),

“[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall

be disregarded.” “The term ‘substantial rights’ has been interpreted to require that ‘the

error must have been prejudicial.’” State v. Moore, 

 (6th Dist.),

quoting State v. Fisher, 

, ¶ 7.

       {¶ 22} Ruffin argues that the failure to admit the entire NHTSA manual was

prejudicial because “he was not able to inquire about whether NHTSA procedures

contained within the manual were adhered to.” To the contrary, the record reveals that

Ruffin presented the manual for field sobriety tests and proceeded to question Hunt with

it. While the manual was not admitted into evidence, Ruffin, citing State v. Nation, 2023-




9.
Ohio-106, ¶ 34 (6th Dist.), identifies in his appellate brief the nine steps that an officer

should follow when administering the HGN test:

       (1) check the subject for eyeglasses or contact lenses, (2) provide verbal
       instructions for the test, (3) position the stimulus 12 to 15 inches in front of
       the subject and slightly above eye level, (4) check for equal pupil size and
       resting nystagmus, (5) check for equal tracking, (6) check for lack of
       smooth pursuit, (7) check for distinct and sustained nystagmus at maximum
       deviation, (8) check for onset of nystagmus prior to 45 degrees, and (9)
       total the clues.

In his questioning, Ruffin asked Hunt if he checked for contact lenses, provided correct

verbal instructions for the test, checked for equal pupil size, and held the stimulus steady

for four seconds at maximum deviation twice on each eye as he checked for sustained

nystagmus. His questioning, and the order thereof, demonstrates that he was able to

thoroughly examine Hunt regarding his compliance with the NHTSA procedures. Ruffin,

therefore, was not prejudiced by the trial court’s failure to admit or take judicial notice of

the entire NHTSA manual.

       {¶ 23} Accordingly, Ruffin’s first assignment of error is not well-taken.

                             B. Denial of Motion to Suppress

       {¶ 24} In his second assignment of error, Ruffin argues that the trial court erred

when it denied his motion to suppress. Specifically, he contends that Hunt lacked

reasonable suspicion to conduct field sobriety tests and that he lacked probable cause to

arrest him for OVI.

       {¶ 25} “Appellate review of a motion to suppress presents a mixed question of law

and fact.” State v. Burnside, 

, ¶ 8; State v. Escobedo, 

.
34 (6th Dist.). “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.” 

 citing State v. Mills, 

(1992). “Consequently, an appellate court must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Id.; 

. “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.” Id.; 

.

       {¶ 26} The Fourth Amendment to the United States Constitution guarantees that

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.” Article I, Section 14 of the

Ohio Constitution is nearly identical and “affords the same protection in felony cases.”

State v. Eatmon, 

.

               1. Reasonable Suspicion to Conduct Field Sobriety Tests

       {¶ 27} “An officer’s request that a driver participate in field sobriety testing

qualifies as a seizure subject to Fourth Amendment protection and must be ‘separately

justified by specific, articulable facts showing a reasonable basis for the request.’” State

v. Dye, 

, ¶ 64 (6th Dist.), quoting Bowling Green v. Murray, 2019-Ohio-

4285, ¶ 19 (6th Dist.). A number of factors may be considered when determining, under

the totality of the circumstances, whether an officer had reasonable suspicion sufficient to

conduct field sobriety tests including, but not limited to:




11.
       (1) the time of day that the stop occurred; (2) the area where the stop
       occurred; (3) whether there was erratic driving that might point to a lack of
       coordination; (4) the existence of a ‘cognizable report’ that the driver might
       be intoxicated; (5) the appearance of the suspect’s eyes; (6) impairments
       related to the individual’s speech; (7) an odor of alcohol in the car or on the
       person; (8) the strength of that odor; (9) lack of coordination after the stop;
       (10) ‘the suspect’s demeanor’; and (11) the suspect’s admission of alcohol
       consumption.

Id. at ¶ 65, citing State v. Evans, 

 (11th Dist. 1998).

       {¶ 28} Ruffin argues that reasonable suspicion was lacking because there was not

competent, credible evidence that he had glassy eyes, and even if his eyes were glassy,

that along with the odor of alcohol is not sufficient. More specifically, his argument that

there was not competent evidence that he had glassy eyes is based on Hunt’s inability to

identify from his body camera video the exact moment when he noticed Ruffin’s eyes.

Hunt, however, testified that while he could not point it out on the video, he “[knew]

what [he] saw with [his] own eyes.”

       {¶ 29} In this case, Hunt’s testimony that Ruffin’s eyes were glassy was credible

given the corroboration from the other responding officer that there was a smell in the

car, Ruffin’s implicit acknowledgment that he had been drinking when he stated that his

alcohol consumption “ain’t got nothing to do with it,” and the fact that Hunt was

responding to an accident that occurred at 1:00 a.m. Thus, there was competent credible

evidence supporting the trial court’s finding that Ruffin’s eyes were glassy.

       {¶ 30} As to his second contention that glassy eyes and an odor of alcohol is not

sufficient to establish reasonable suspicion, Ruffin relies on Dye. In that case, the trial

court found that the officer had reasonable suspicion necessary to conduct field sobriety



12.
tests because he could smell a strong odor of alcohol both on Dye and in his truck, his

speech was slurred, and his eyes were glassy and bloodshot. Id. at ¶ 67. On appeal, this

court held that there was not competent, credible evidence that Dye’s speech was slurred

based on dash camera video that showed him speaking clearly and the officer’s changing

testimony of when he noticed the allegedly slurred speech. Id. at ¶ 75. Without the

slurred speech, the only indicators left were the strong odor of alcohol and the glassy,

bloodshot eyes, and even on those issues this court questioned the credibility of the

officer’s testimony. Examining other cases, this court commented that “without

additional indicia of intoxication, we tend to find that the odor of alcohol and bloodshot,

glassy eyes—standing alone—are insufficient to provide reasonable suspicion for field

sobriety tests.” (Emphasis sic.) Id. at ¶ 69.

       {¶ 31} Here, unlike Dye, other indicia of intoxication exist including Ruffin’s

involvement in a traffic accident at 1:00 a.m. and his implicit admission that he had been

drinking. Ruffin tries to minimize the importance of the traffic accident, noting that no

determination had been made as to who was at fault for causing it. But the fact that the

cause of the accident was still unknown does not remove it from consideration in looking

at the totality of the circumstances to determine whether there was reasonable suspicion

to conduct field sobriety tests.

       {¶ 32} “The level of suspicion required to meet the reasonable-suspicion standard

‘is obviously less demanding than that for probable cause’ and ‘is considerably less than

proof of wrongdoing by a preponderance of the evidence’ but is ‘something more than an




13.
inchoate and unparticularized suspicion or hunch.’” (Internal quotation marks removed).

State v. Hawkins, 

, quoting United States v. Sokolow, 

(1989), quoting Terry v. Ohio, 

 (1968). In this case, Hunt was presented

with a situation where Ruffin was involved in a traffic accident in the early morning

hours, he smelled of alcohol, his eyes were glassy, and he did not deny but rather

impliedly admitted that he had been drinking. Considering these factors, Hunt’s

suspicion that Ruffin was under the influence of alcohol was reasonable and was more

than just an inchoate and unparticularized hunch.

       {¶ 33} The trial court did not err when it determined that there was reasonable

suspicion to conduct field sobriety tests.

                               2. Probable Cause to Arrest

       {¶ 34} Ruffin alternatively argues that the trial court erred when it found that there

was probable cause for his arrest.

       {¶ 35} “The legal standard for determining whether the police had probable cause

to arrest an individual for OVI is whether, at the moment of arrest, the police had

sufficient information, derived from a reasonably trustworthy source of facts and

circumstances, sufficient to cause a prudent person to believe that the suspect was driving

under the influence.” State v. Bailey, 

 (6th Dist.), quoting State v.

Bruck, 

 (6th Dist.). “When determining probable cause, the court

must examine the totality of the facts and circumstances surrounding the arrest.” 

quoting 

.




14.
       Examples of circumstances that may support or undermine probable cause
       in an OVI case include the manner of driving, the day and time, the driver’s
       appearance and ability to communicate, including glassy and bloodshot
       eyes and slurred speech, the driver’s behavior and cooperation, the driver’s
       coordination and balance, the smell of alcohol, the presence of alcohol
       containers in the vehicle, the admission of drinking alcohol or other
       incriminating statements, and the driver’s performance on field sobriety
       tests.

State v. Scott, 

 (6th Dist.), quoting State v. Baah, 

 (10th Dist.).

       {¶ 36} Here, the factors supporting probable cause are Ruffin’s involvement in the

traffic accident at 1:00 a.m., the odor of alcohol, his glassy eyes, his statement that how

much he had to drink “ain’t got nothing to do with it,” the presence of four out of six

clues on the HGN test, and his conduct in being “pleasant[ly] uncooperative” when asked

to perform the walk and turn test. Although Ruffin did not appear disheveled or have

slurred speech, did not display un-coordination or a lack of balance, and did not have

alcohol containers in his vehicle, the other clues are sufficient to demonstrate that Hunt

had probable cause to arrest him for OVI.

       {¶ 37} Ruffin, however, challenges the admissibility of the results of the HGN test

as a factor for probable cause. R.C. 4511.19(D)(4)(b) provides that an officer may testify

concerning the results of field sobriety tests 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



15.
administration.” “‘Substantial compliance’ is not defined by the statute. Thus, whether

the facts satisfy the substantial compliance standard is determined on a case-by-case

basis.” State v. Nation, 

 (6th Dist.), citing State v. Mapes, 2005-

Ohio-3359, ¶ 44 (6th Dist.). “For the results of [field sobriety tests] to be admissible, the

state must lay a proper foundation as to (1) the administering officer’s training and ability

to administer the tests and (2) the actual techniques he used to administer the tests.” Id.

at ¶ 31, citing State v. Boles, 

 (2d Dist.); State v. Boczar, 2007-

Ohio-1251, ¶ 28. “The state’s burden of proof for the admissibility of field sobriety test

results is not onerous; if unchallenged, general testimony that the officer followed all

pertinent rules and regulations is sufficient.” 

 citing State v. Aiken, 

 (6th Dist.). “When the defendant challenges the general testimony, however, the state

is required to present more particular evidence of compliance.” 

 citing State v.

Murray, 

 (2d Dist.).

       {¶ 38} Ruffin contests the administration of the HGN test in six ways. First, he

argues that Hunt did not complete a sufficient number of passes of the stimulus in front of

his eyes. “When checking the subject’s eyes, the manual instructs officers to check for

each of the three clues in each eye independently—resulting in a maximum possible

score of six clues of impairment—and to repeat the test for each clue twice on each eye.”

Id. at ¶ 35. Thus, “to complete the HGN test as prescribed by the NHTSA manual, an

officer would have to complete a minimum of 14 ‘passes’ of the stimulus in front of the

eyes—at least one pass per eye (or two total passes) to check for equal tracking and two




16.
passes per eye (or four total passes) for each of the three clues.” Id. The trial court found

that Hunt conducted eight passes, but the video from Hunt’s body-worn camera

unmistakably shows that he conducted at least 16 passes.1

         {¶ 39} Second, he argues that Optokinetic Nystagmus occurred because the test

was conducted too close to the semi-truck’s blinking hazard lights. Third, and relatedly,

he asserts that optokinetic nystagmus occurred because he was facing rapidly moving

traffic in close proximity. From the State’s exhibit from the NHTSA manual presented at

the suppression hearing, “Optokinetic Nystagmus occurs when the eyes fixate on an

object that suddenly moves out of sight, or when the eyes watch sharply contrasting

moving images. Examples of Optokinetic Nystagmus include watching strobe lights,

rotating lights, or rapidly moving traffic in close proximity.” The manual further states

that “[d]uring the HGN test, the suspect is required to fixate the eyes on a penlight,

pencil, or similar object that moves in accordance with the HGN testing procedures, thus

Optokinetic Nystagmus will not occur. The movement of the stimulus and the fixation

on the stimulus by the subject precludes this form of nystagmus from being observed by

the officer.” Sixty pages later, the manual states that the officer should “[t]ry to face

subject away from flashing or strobe lights that could cause visual or other distractions

that could impede the test.”

         {¶ 40} As presented in the sections of the NHTSA manual before the court, the

presence of Optokinetic Nystagmus is a separate issue from the general recommendation



1
    The State argues that Hunt completed 16 passes, this court counted 18 passes.


17.
to have the subject face away from flashing lights that could cause distractions when

administering the test. Optokinetic Nystagmus is avoided where the subject can fixate on

the stimulus as it is moving. The video evidence shows that this occurred. Although

Ruffin was unable to maintain fixation when the stimulus was at the edge of his

periphery, when it was otherwise passing in front of his eyes he was focused on it.

Further, it should be noted that the semi-truck’s hazard lights were a fair distance away,

such that it took Hunt 12 seconds to walk from Ruffin’s car to the semi-truck. In

addition, traffic on the roadway was light with only 12 vehicles passing during the two

minutes and ten seconds that it took to administer the test.

       {¶ 41} Fourth, he argues that Hunt did not hold the stimulus steady at maximum

deviation for four seconds, twice on each eye. Hunt concedes that he did not do this

because Ruffin was not maintaining focus on the stimulus. Hunt, however, also did not

find any clues from this part of the test, so any purported failure to substantially comply

with the standards is inconsequential.

       {¶ 42} Fifth, Ruffin states that Hunt did not tell him that he was going to check his

eyes, nor did he instruct him to stand with his feet together, hands at his sides, and to hold

his head still and follow the pen with his eyes only. Contrary to his assertion, the video

shows that Hunt asks Ruffin if he has any issues with his eyes. Then, before conducting

the test Hunt instructs him to follow the pen with his eyes only and to keep his head still.

He does not instruct Ruffin to stand with his feet together and his hands down, but Ruffin

was already standing with his hands by his side.




18.
       {¶ 43} Finally, Ruffin argues that Hunt did not note that he had glaucoma. He

concedes that the NHTSA manual instructs that if the subject reports any issues, the test

can proceed but the issue should be noted. In this case, Hunt testified that based upon his

training, glaucoma does not impact the HGN test.

       {¶ 44} Based on the foregoing, the trial court did not err when it found that Hunt

substantially complied with the standards for conducting the HGN test. Moreover, based

upon the results of that test, in conjunction with the other facts and circumstances present,

the trial court did not err when it found that probable cause existed to support Ruffin’s

arrest for OVI.

       {¶ 45} Accordingly, because reasonable suspicion existed to perform field sobriety

tests and probable cause existed to arrest him for OVI, Ruffin’s second assignment of

error is not well-taken.

            C. Denial of Motion for Leave to File Second Suppression Motion

       {¶ 46} In his third and final assignment of error, Ruffin argues that the trial court

abused its discretion when it denied his motion for leave to file a second motion to

suppress.

       {¶ 47} “A motion to suppress is a pre-trial motion and must be filed within 35

‘days after arraignment or seven days before trial, whichever is earlier.’” State v. Rhea,

 (6th Dist.), quoting Crim.R. 12(D). But, under the rule, “[t]he trial

court has the discretion to extend the time for making pretrial motions ‘in the interest of

justice . . . .’” 

 citing Crim.R. 12(D). The trial court’s decision on whether to extend




19.
the time for filing a motion to suppress is reviewed for an abuse of discretion. 

 citing

State v. Garrett, 

 (2d Dist.). An abuse of discretion connotes that

the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Id.; State v.

Adams, 

 (1980).

       {¶ 48} Ruffin asserts that he could not timely file his second motion to suppress

the chemical breath test evidence because the State failed to timely produce discovery on

the maintenance and calibration records of the machine. Since he was charged with

refusing to be tested by the machine, he argues that it was relevant whether the machine

was not working or was in poor working condition, but without the records from the

State, he did not have the information available to file his motion to suppress. Thus, he

contends that the trial court abused its discretion when it did not allow him to file his

motion after he received the records from the State.

       {¶ 49} Upon review, the trial court’s decision was not arbitrary, unreasonable, or

unconscionable. The simple fact is that there were no results from the chemical breath

test to suppress because Ruffin refused to be tested, and it is his refusal that is critical to

the offense. Unless he is a clairvoyant, Ruffin’s decision to refuse the test could not have

been impacted by a revelation months later that the machine was in fact not properly

working on the night of his arrest. The trial court did not abuse its discretion when it

denied Ruffin’s motion for leave to file a second suppression motion.

       {¶ 50} Accordingly, his third assignment of error is not well-taken.




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                                     IV. Conclusion

       {¶ 51} For the foregoing reasons, the judgment of the Wood County Court of

Common Pleas is affirmed. Ruffin is ordered to pay the costs of this appeal pursuant to

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.



Christine E. Mayle, J.                         ____________________________
                                                          JUDGE
Myron C. Duhart, J.
                                               ____________________________
Charles E. Sulek, P.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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