[Cite as State v. Pelfrey,
2025-Ohio-4896.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-12-088
: OPINION AND
- vs - JUDGMENT ENTRY
: 10/27/2025
NICHOLAS R. PELFREY, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT
Case Nos. 2023TRC002441 and 2023CRB000737
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, for appellant.
OPINION
PIPER, J.
{¶ 1} Appellant, Nicholas Pelfrey, appeals his conviction in the Warren County
Court of Common Pleas, after a jury found him guilty of OVI, failure to control, and
endangering children. For the reasons outlined below, we affirm.
Warren CA2024-12-088
I. Factual and Procedural Background
{¶ 2} On December 25, 2023, Nicholas Pelfrey was operating his Jeep when it
left the roadway and overturned in a ditch on State Route 122 near Hart Road in
Clearcreek Township, Warren County. Pelfrey's three minor children were passengers in
the Jeep when he crashed, trapping them inside. A passerby stopped and was able to
cut the rear window of the vehicle with a knife to help extract them.
{¶ 3} At approximately 8:17 p.m., Clearcreek Township Police Officer Kevin Hall
arrived at the scene and observed Pelfrey's overturned vehicle with Pelfrey's children and
several adults nearby. Officer Hall noted that the road was straight and unobstructed, but
there was a "heavy mist," the roads were wet, and it was nighttime. As Officer Hall
approached the Jeep, a woman informed him that the driver, Pelfrey, was "very drunk."
She reported that Pelfrey was driving erratically and had cut her off while she was
traveling westbound on State Route 122.
{¶ 4} Upon making contact with Pelfrey, Officer Hall noticed blood around
Pelfrey's mouth but no other injuries. Pelfrey did not indicate he was hurt or complain of
any injuries. When asked if he was hurt, Pelfrey responded, "[J]ust my pride."
{¶ 5} Pelfrey claimed he was driving from a "get together" at a friend's house and
was arguing with his sons in the car when he hit a slick spot on the road and crashed.
However, Officer Hall detected a strong odor of an alcoholic beverage from Pelfrey.
Officer Hall also noted Pelfrey disregarded or was not understanding directions at the
crash scene. Pelfrey attempted to retrieve items from inside the Jeep despite warnings
that it was not safe. Pelfrey even tried to grab Officer Hall's flashlight out of his hands. As
Pelfrey walked around the Jeep, he fell down the embankment along the road. When
Officer Hall looked through the windows of the Jeep with his flashlight, he also observed
an empty liquor bottle. Based on the combined circumstances, Officer Hall suspected
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Pelfrey was intoxicated.
{¶ 6} Clearcreek Township Police Officer Bronnenberg arrived on the scene a
few minutes after Officer Hall, who asked Officer Bronnenberg to take over the
investigation of Pelfrey's intoxication while Officer Hall handled the crash scene. Officer
Bronnenberg also detected the scent of an alcoholic beverage on Pelfrey and noted his
glassy eyes. Officer Bronnenberg asked Pelfrey if he drank any alcohol prior to driving
and Pelfrey admitted to consuming "[t]wo shots or a couple." In preparation for conducting
field sobriety tests, Officer Bronnenberg instructed the emergency vehicles on site to turn
off their flashing lights or reposition so the lights would not interfere with Pelfrey's vision.
Officer Bronnenberg then administered the horizontal gaze nystagmus (HGN), walk-and-
turn, and one-leg-stand tests. Pelfrey's physiological responses showed signs of
impairment in all tests.
{¶ 7} During the HGN test, Officer Bronnenberg observed the lack of smooth
pursuit in both eyes, nystagmus prior to 45 degrees in both eyes, and nystagmus at
maximum deviation in both eyes, for a total of six out of six clues for alcohol impairment.
During the walk-and-tum test, Pelfrey stepped off the line, failed to touch heel to toe, used
his arms for balance, made an improper turn, and failed to take the correct number of
steps, all which were signs of impairment.
{¶ 8} During the one-leg-stand test, Pelfrey began the test before being instructed
to do so, failed to keep his arms to his side, did not look at his toes as instructed, used
his arms for balance, could not hold his foot up from touching the ground, and failed to
count to 30. Pelfrey ultimately acknowledged he could not do as instructed, whereupon
Officer Bronnenberg terminated the test.
{¶ 9} Based on these observations, Officer Bronnenberg concluded that Pelfrey
was impaired and arrested him for OVI. At the Springboro Police Department, Pelfrey
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refused a breathalyzer test, stating that "if he took the test he'd be fucked." Officer
Bronnenberg then transported Pelfrey to the hospital and subsequently to jail.
{¶ 10} Pelfrey was charged with OVI and failure to control in Case No.
2023TRC002441 and endangering children in Case No. 2023CRB000737. Pelfrey filed
motions to suppress in both cases, and the trial court held a suppression hearing on
March 5, 2024. On March 19, 2024 Pelfrey filed a closing argument brief, and the State
filed a response on March 26, 2024. On April 15, 2024, the trial court denied Pelfrey's
motions. On November 4, 2024, Pelfrey filed a motion to reconsider his motion to
suppress in his OVI and failure to control case, and the court denied his motion on
November 5, 2024. The cases proceeded to trial on November 8, 2024, and Pelfrey was
found guilty on all counts.
{¶ 11} The trial court sentenced Pelfrey to 180 days in jail, with 150 days
suspended, one year of probation with the condition that he participate in a drug and
alcohol assessment and any follow-up, a one-year license suspension, and a fine of $500.
{¶ 12} Pelfrey now timely appeals, raising one assignment of error for our review.
II. Legal Analysis
{¶ 13} Assignment of Error:
{¶ 14} THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION
TO SUPPRESS EVIDENCE.
{¶ 15} In his single assignment of error, Pelfrey argues (1) the police did not have
reasonable suspicion to detain him and conduct field sobriety tests, (2) his statements
made after his arrest should be suppressed because he was not provided a Miranda
warning, (3) the field sobriety tests were inadmissible as evidence because they did not
substantially comply with the NHTSA guidelines, and (4) the police did not have probable
cause to arrest him for OVI.
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{¶ 16} Appellate review of a trial court's decision to grant or deny a motion to
suppress is a mixed question of law and fact. State v. Bell, 2009-Ohio-2335, ¶ 8 (12th
Dist.). Acting as the trier of fact, the trial court is in the best position to resolve factual
questions and evaluate witness credibility. State v. Harsh,
2014-Ohio-251, ¶ 9 (12th
Dist.). Therefore, when reviewing the denial of a motion to suppress, a reviewing court is
bound to accept the trial court's findings of fact if they are supported by competent,
credible evidence. State v. Durham,
2013-Ohio-4764, ¶ 14 (12th Dist.). "An appellate
court, however, independently reviews the trial court's legal conclusions based on those
facts and determines, without deference to the trial court's decision, whether as a matter
of law, the facts satisfy the appropriate legal standard."
Id.
Reasonable Suspicion to Conduct Field Sobriety Tests
{¶ 17} "[A] police officer must have a reasonable suspicion of criminal activity to
support administering field sobriety tests." State v. Koogler, 2010-Ohio-5531, ¶ 7.
"Reasonable articulable suspicion exists when there are specific and articulable facts
which, taken together, with rational inferences from those facts, reasonably warrant the
intrusion." State v. Hill,
2015-Ohio-4655 at ¶ 10 (12th Dist.), citing State v. Bobo,
37 Ohio
St.3d 177, 178 (1988). Reasonable and articulable suspicion is verified by evaluating the
totality of the circumstances "through the eyes of a reasonable and prudent police officer
on the scene who must react to events as they unfold." State v. Asbury,
2021-Ohio-2877,
¶ 15 (12th Dist.), quoting State v. Popp,
2011-Ohio-791, ¶ 13 (12th Dist.).
{¶ 18} "The usual physical characteristics of alcohol consumption, such as the
odor of alcohol, bloodshot eyes, flushed face, and slurred speech are sufficient to give
rise to a reasonable suspicion of intoxication." State v. Lucking, 2004-Ohio-90, ¶ 9 (12th
Dist.). Other factors, such as the time and location of the stop, erratic driving, diminished
coordination, demeanor of the driver, and admission of alcohol consumption are also
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relevant for consideration. Asbury at ¶ 16. While several indicia of intoxication may be
necessary, not every factor must be present before a suspicion of intoxication is
reasonable.
Id. Further, while there may be non-impairment reasons for a defendant's
eyes to be bloodshot or glassy, this does not diminish the relevance of these factors for
the question of whether the officer reasonably suspected the defendant was intoxicated.
Id., citing
Koogler at ¶ 16.
{¶ 19} Here, there were numerous indicators that, taken together, supported
Officer Hall's reasonable suspicion that Pelfrey was intoxicated. Officer Hall arrived at the
scene of a single-vehicle accident, on a straight road, on Christmas evening. As Officer
Hall approached the scene, a bystander informed him that the driver, Pelfrey, was "very
drunk," had been driving erratically, and had cut her off while she was driving on the same
road. 1 Upon initial contact with Pelfrey, Officer Hall smelled a strong odor of an alcoholic
beverage coming from Pelfrey. Pelfrey disregarded the officer's instructions not to climb
into the wrecked vehicle, grabbed at Officer Hall's flashlight, and later fell on the
embankment along the side of the road. Therefore, the totality of the circumstances gave
Officer Hall reasonable suspicion to believe Pelfrey was intoxicated which supported the
administration of field sobriety tests.
{¶ 20} When Officer Bronnenberg arrived at the scene and administered the field
sobriety tests, he independently smelled the odor of an alcoholic beverage on Pelfrey,
observed that Pelfrey had glassy eyes, and heard Pelfrey admit that he had "[t]wo shots
or a couple" to drink. Further, Officer Bronnenberg was able to rely on Officer Hall's
1. In his reply brief and oral argument, Pelfrey argues the bystander's statement is unreliable because she
is unnamed in the record. Nevertheless, "information from an unidentified citizen informant who initiates
face-to-face public contact with the police to report criminal activity then occurring, with no attempt to
conceal his identity" may support an officer's reasonable suspicion. State v. Tidwell, 2021-Ohio-2072, ¶ 42.
Face-to-face contact allows an officer to personally observe the informant's demeanor and evaluate his
veracity.
Id. We find Officer Hall reasonably relied on the bystander's statement, made contemporaneously
with the alleged crime, in conjunction with his own observation of Pelfrey.
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reasonable suspicion that Pelfrey was intoxicated. See City of Maumee v. Weisner, 87
Ohio St. 3d 295, 297. "[E]ffective law enforcement cannot be conducted unless police
officers can act on directions and information transmitted by one officer to another and
that officers, who must often act swiftly, cannot be expected to cross-examine their fellow
officers about the foundation for the transmitted information."
Id., quoting United States
v. Hensley,
469 U.S. 221, 231 (1985). Accordingly, Officer Bronnenberg had reasonable
suspicion of intoxication to justify administering field sobriety tests to Pelfrey.
Admissibility of Post-Arrest Statements
{¶ 21} For the first time on appeal, Pelfrey argues that he was immediately
detained as soon as the police arrived at the scene of the accident and was effectively
under arrest; therefore, Miranda warnings were required before the police asked him
whether he had been drinking, and before the police asked questions in preparation for
the field-sobriety tests. However, Pelfrey's motion to suppress only generally asserted
that any custodial statements he made without Miranda warnings were inadmissible. At
the suppression hearing, the defense only cross-examined Officer Bronnenberg
regarding Pelfrey's statements after he was formally arrested, and the defense's closing
argument brief only addressed Pelfrey's custodial statements regarding his refusal to
submit to a breathalyzer test at the Springboro Police Department. Pursuant to Crim.R.
47, a defendant seeking to suppress evidence must state "with particularity the legal and
factual issues to be resolved" so the prosecutor and court have "notice of those issues to
be heard and decided by the court[.]" State v. Shindler, 70 Ohio St.3d 54, 56-58 (1994).
Pelfrey may not identify challenged statements for the first time on appeal, namely all his
statements at the scene of the accident prior to his formal arrest. See State v. Kelsey,
2024-Ohio-806, ¶ 32 (6th Dist.). Therefore, we decline to consider whether Pelfrey was
effectively under arrest prior to Officer Bronnenberg formally placing him under arrest,
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and we only review the admissibility of Pelfrey's statements made thereafter.
{¶ 22} The issuance of Miranda warnings is only required when police subject a
person to custodial interrogation. State v. Frost, 2019-Ohio-3540, ¶ 32 (12th Dist.).
An interrogation includes express questioning as well as any words or actions on the part
of the police (other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from the suspect.
Id.
{¶ 23} After Pelfrey's arrest, during transport to the police station, Pelfrey
volunteered several statements about drinking and how much he had consumed. Upon
review of the cruiser video recordings, we find that Officer Bronnenberg was not
interrogating Pelfrey nor was the conversation designed to elicit an incriminating
response. At the Springboro Police Department, Officer Bronnenberg read Pelfrey the
BMV 2225 form detailing the administrative license suspension and the consequences of
refusing to submit to a breathalyzer, and then asked Pelfrey if he would take the
breathalyzer test. Pelfrey then volunteered, "If I take the test, I'm gonna get fucked."
Officer Bronnenberg was not attempting to elicit any incriminating response, he was only
trying to determine whether Pelfrey would take the breathalyzer test. See Middleburg Hts.
v. Henniger, 2006-Ohio-3715, ¶ 15 (8th Dist.) (Miranda warnings need not precede
administration of a breathalyzer test because such a test is intended to develop physical
and not testimonial evidence).
{¶ 24} Accordingly, we find that Pelfrey was not subjected to custodial interrogation
and any of his custodial statements were voluntary, therefore no Miranda warning was
necessary and these statements were admissible.
Admissibility of the Field Sobriety Tests
{¶ 25} Pelfrey argues that each of the field sobriety tests were inadmissible both
for purposes of finding probable cause to arrest and for use at trial because they were not
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conducted in substantial compliance with the applicable NHTSA standards.
{¶ 26} In response to a motion to suppress regarding field sobriety tests, the State
must show the requisite level of compliance with accepted testing standards. State v.
Johnson, 2018-Ohio-3621, ¶ 11 (12th Dist.), citing State v. Schmitt,
2004-Ohio-37, ¶ 9.
The typical standards, as were used in this case, are those from NHTSA. State v.
Jimenez,
2007-Ohio-1658, ¶ 12 (12th Dist.). For field sobriety testing evidence to be
admissible, the State is not required to show strict compliance with testing standards, but
must instead demonstrate by clear and convincing evidence that the officer substantially
complied with NHTSA standards. R.C. 4511.19(D)(4)(b); State v. Selvage, 2012-Ohio-
2149, ¶ 12 (12th Dist.). "Clear and convincing evidence is that measure or degree of proof
which will produce in the mind of the trier of facts a firm belief or conviction as to the
allegations sought to be established." Cross v. Ledford,
161 Ohio St. 469, 477, (1954). "A
determination of whether the facts satisfy the substantial compliance standard is made
on a case-by-case basis." State v. Fink,
2009-Ohio-3538, ¶ 26 (12th Dist.).
{¶ 27} As an initial matter, the State asserts Pelfrey only raised a general challenge
to the field sobriety tests in his motion to suppress; therefore, the State was only required
to demonstrate substantial compliance with NHTSA standards in general terms.
{¶ 28} The extent of the State's burden for establishing substantial compliance
"only extends to the level with which the defendant takes issue with the legality of the
test." State v. Nicholson, 2004-Ohio-6666, ¶ 10 (12th Dist.). If the defendant's motion to
suppress raises issues in general terms, then the State is only required to show
substantial compliance in general terms.
Johnson at ¶ 14. The State's burden to show
compliance to a general allegation is slight and requires only the amount of specificity
contained in the motion.
Id. Therefore, the State need only "present general testimony
that there was compliance" when the motion is not sufficiently specific.
Id. However, if the
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motion to suppress lacks the required particularity, the defendant may still provide some
factual basis, either during cross-examination or by conducting formal discovery, thereby
raising the requirement on the State to demonstrate substantial compliance with specific
evidence. Id.
{¶ 29} Here, Pelfrey's motion to suppress contained one boilerplate assertion that
Officer Bronnenberg "failed to administer the same [field sobriety tests] in substantial
compliance with the applicable standards." The accompanying memorandum of law
restated this general assertion without providing any additional information on the issue.
Therefore, Pelfrey's motion and memorandum did not set forth the legal and factual bases
with sufficient particularity to place the prosecutor on notice of the procedures he intended
to challenge. However, Pelfrey's cross-examination of Officer Bronnenberg raised the
specificity of the evidence required by the State to meet its burden by asking specific
questions whether each of the field sobriety tests was conducted in compliance with the
NHTSA standards.
{¶ 30} With respect to the HGN test, the defense specifically inquired as to whether
it was possible Pelfrey suffered a head injury in the accident that could have affected the
test, and whether the presence of flashing lights from emergency vehicles, the rain, and
the wind also could have affected the test. With respect to the walk-and-turn and one-leg-
stand tests, the defense also asked specific questions as to whether preexisting medical
conditions could have affected Pelfrey's ability to complete the tests, as well as whether
the wet road surface diminished the reliability of those tests. Pelfrey emphasized that the
NHTSA manual recommends utilizing a dry surface when possible. Therefore, regarding
those issues which Pelfrey actually raised, we will address whether the State has set forth
specific evidence to demonstrate by clear and convincing evidence substantial
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compliance with NHTSA standards.2
{¶ 31} As to the HGN test, Officer Bronnenberg testified that Pelfrey did not
complain of any injuries from the car accident, with the only apparent injury being a bloody
lip. When specifically asked if he was injured at all, Pelfrey responded "[J]ust my pride."
Before administering the HGN test, Officer Bronnenberg instructed the emergency
vehicles to either move or turn off their lights to not affect Pelfrey's vision. Although the
weather conditions were less than ideal, they did not interfere with the test. Officer
Bronnenberg testified that the rain was not a "downpour," only a "heavy mist," and that
while it might cause someone to squint, the rain did not interfere with the movement of
Pelfrey's eyes.
{¶ 32} As to the walk-and-turn and one-leg-stand tests, we find that Pelfrey
informed Officer Bronnenberg that he had preexisting issues with his neck that caused
tremors or numbness in his arms, but neither of these are among the conditions listed in
the NHTSA manual that could affect a subject's ability to perform the test. Further, there
is no evidence that the wet pavement affected Pelfrey's performance of these tests.
Officer Bronnenberg cleared away any rocks or other obstructions from the roadway
before administering the test, and he testified that while the road was wet, there was no
puddling.
{¶ 33} The NHTSA manual states that the walk-and-turn and one-leg-stand tests
"[w]henever possible . . . should be conducted on a reasonably dry, hard, level, and non-
slippery surface." (Emphasis added.). A perfectly dry surface is not necessary. Further,
the manual notes that "[f]ield validation studies have indicated varying environmental
2. Pelfrey also argues for the first time on appeal that the HGN test was incorrectly administered where
Officer Bronnenberg checked for all three clues of impairment in one eye before checking the other eye, as
opposed to checking both eyes for each clue before looking for the next clue. This issue was not raised in
the motion to suppress nor at the suppression hearing on cross-examination; therefore, we decline to
address it now.
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conditions have not affected a subject's ability to perform" these tests.
{¶ 34} Performing standardized field sobriety tests under less than ideal conditions
does not necessarily show that the officer failed to administer the tests in substantial
compliance with the NHTSA standards. State v. Davis, 2009-Ohio-3759, ¶ 20 (2d Dist.),
citing State v. Marcinko,
2007-Ohio-1166 (4th Dist.). "To find that the officer must
demonstrate that he performed the tests under the ideal conditions set forth in the NHTSA
manual would be tantamount to requiring strict, not substantial, compliance."
Davis at ¶
20.
Probable Cause to Arrest
{¶ 35} Finally, Pelfrey argues that the police did not have probable cause to arrest
him for OVI because the field sobriety tests were invalid and the other surrounding facts
and circumstances were insufficient to find probable cause. An officer must have probable
cause to arrest a person without a warrant. State v. Zehenni, 2012-Ohio-5436, ¶ 13 (12th
Dist.). "Probable cause to arrest for OVI exists when, at the moment of arrest, the
arresting officer had sufficient information, derived from a reasonably trustworthy source
of facts and circumstances, to cause a prudent person to believe the accused was driving
under the influence of alcohol." State v. Pallo,
2021-Ohio-1984, ¶ 11 (12th Dist.). As
discussed above, we have already found the field sobriety tests were validly administered.
Therefore, we find that the field sobriety test results, as well as the bystander's statement
that Pelfrey was "very drunk" and had been driving erratically, Pelfrey's odor of alcoholic
beverage, glassy eyes, demeanor and conduct at scene, and his admission of drinking
alcohol, supported probable cause to arrest.
III. Conclusion
{¶ 36} After reviewing all the issues raised, we find that the trial court's factual
findings are supported by competent, credible evidence and satisfy the legal standards
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necessary to uphold its conclusions. Pelfrey's physical condition, conduct, and the
bystander's report supported the police's reasonable suspicion that Pelfrey was
intoxicated. Officer Bronnenberg's testimony and body cam footage demonstrate by clear
and convincing evidence that he substantially complied with NHTSA standards when
administering the HGN, walk-and-turn, and one-leg-stand tests. Like the trial court, we
find that neither Pelfrey's physical condition nor the environmental conditions undermined
the validity of the tests. Accordingly, the field sobriety tests were admissible and provided
probable cause to arrest Pelfrey for OVI. Additionally, we find Pelfrey's custodial
statements were voluntary and not elicited by interrogation. Thus, the trial court did not
err when it denied Pelfrey's motion to suppress evidence.
{¶ 37} Judgment affirmed.
HENDRICKSON, P.J., and BYRNE, J., concur.
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JUDGMENT ENTRY
The assignment of error properly before this court having been ruled upon, it is the
order of this court that the judgment or final order appealed from be, and the same hereby
is, affirmed.
It is further ordered that a mandate be sent to the Warren County Court for
execution upon this judgment and that a certified copy of this Opinion and Judgment Entry
shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Robert A. Hendrickson, Presiding Judge
/s/ Robin N. Piper, Judge
/s/ Matthew R. Byrne, Judge
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