[Cite as State v. Poole,
2025-Ohio-91.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240270
TRIAL NO. C/24/TRC/4764/A
Plaintiff-Appellant, :
vs. :
OPINION
THERESA RUNE POOLE, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 15, 2025
Connie M. Pillich, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
The Cochran Firm and Fanon A. Rucker, for Defendant-Appellee.
KINSLEY, Presiding Judge.
{¶1} Plaintiff-appellant the State of Ohio appeals the judgment of the
Hamilton County Municipal Court granting defendant-appellee Theresa Rune Poole’s
motion to suppress evidence collected prior to her arrest for operating a motor vehicle
while under the influence (“OVI”) because Poole was arrested without probable cause.
Following an evidentiary hearing on Poole’s motion, the trial court determined that
one of the field sobriety tests an officer conducted on Poole was not performed in
substantial compliance with the National Highway Traffic and Safety Administration
(“NHTSA”) standards. The trial court also found that the officer’s testimony in court
about two other field sobriety tests conflicted with what was depicted on his cruiser’s
camera. In addition to these specific factual findings, the trial court also made what
amounted to a determination that the officer’s testimony about his encounter with
Poole lacked credibility. It suppressed the evidence on this basis.
{¶2} The State does not challenge the trial court’s factual findings on appeal.
Instead it argues in a single assignment of error that other facts outside of those
determined by the trial court amounted to probable cause for Poole’s OVI arrest. But
we disagree. For the reasons that follow, we overrule the State’s assignment of error
and affirm the judgment of the trial court.
Factual and Procedural History
{¶3} Following a traffic stop on February 10, 2024, Poole was charged with
OVI under R.C. 4511.19(A)(1)(a) and speeding. The State subsequently dismissed the
speeding charge against her. Thus, this appeal solely concerns the OVI charge.
{¶4} Poole filed a pretrial motion to suppress evidence. The motion argued
that the officer who initiated the traffic stop conducted field sobriety tests on Poole
without providing sufficient instructions and without properly demonstrating the
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tests. The motion also argued that Poole’s performance on the tests did not generate
probable cause to suspect she was under the influence of alcohol.
{¶5} The trial court conducted an evidentiary hearing on Poole’s motion.
One witness testified: Officer Blake Mayberry of the Greenhills Police Department.
Mayberry testified that he was working a traffic detail shortly after midnight on
February 10, 2024. He observed Poole’s car driving rapidly and used radar to clock
her speed at 55 m.p.h. in a 35 m.p.h. zone. He initiated a traffic stop and approached
the driver’s side door.
{¶6} Mayberry explained that when he reached the driver’s side of Poole’s
car, he smelled a strong odor of alcohol. He also noticed that Poole handed him her
credit card rather than her driver’s license. Mayberry testified that Poole handed him
a second credit card before he eventually asked for her driver’s license, which she
provided. Poole then told Mayberry she had been coming from Bugatti’s Lounge and
admitted to drinking alcohol at Vinkolet Winery earlier that day.
{¶7} Mayberry then asked Poole to exit from the vehicle to perform field
sobriety tests. His cruiser camera footage, which was later admitted into evidence,
shows that he returned to his vehicle before conducting the tests. In his car, he told
his partner that he wanted to get Poole out of her car so that he could discern whether
the smell of alcohol was coming from her or from something else inside her vehicle.
He also scoffed at Poole’s belief that she would be able to go home from the scene, even
though he had not yet investigated whether Poole was in fact intoxicated.
{¶8} Mayberry testified to his training in conducting field sobriety testing.
He received a certification in 2017 and also attended an advanced training program.
He also received NHTSA training at the police academy in 2017. Over objection, the
trial court took judicial notice of the 2021 NHTSA field sobriety testing manual.
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{¶9} Mayberry then described Poole’s performance on the field sobriety tests.
First he conducted the horizontal gaze nystagmus (“HGN”) test, which examines
involuntary jerking of the eye. Poole did not indicate she had any medical conditions
that would impede her ability to complete this test. For the HGN, Mayberry held a
stimulus, in this case the tip of his pen, about 12 to 15 inches away from Poole’s eye
level. He had her stand with her feet together and her arms at her side, facing away
from the car lights, which he said he had turned off. He instructed her to follow the
stimulus with her eyes without moving her head. He first prechecked Poole’s eyes for
equal pupil size and other normal eye conditions. He then performed the test to look
for clues of intoxication. He found that Poole’s left and right eyes both exhibited lack
of smooth pursuit, which he tracked for two seconds, as well as nystagmus, which he
tracked for four seconds. This amounted to a score of four out of six clues on the test.
{¶10} Next Mayberry conducted the walk-and-turn test. The test was
conducted on the flat roadway, which did not have any visible obstructions. Poole also
did not indicate she had any medical conditions that would prohibit her from
completing the test. Mayberry instructed Poole to stand with her feet together and her
arms at her side. He asked her to imagine a straight line in front of her, and she
indicated that she could do so. He then asked her to stand with her left foot on the line
and her right foot touching heel-to-toe on the line in front of her left foot. At this point,
Poole began walking, even though Mayberry had only asked her to stand in that
position. He then had her return to the standing position and wait for his next
instruction, which was to take nine heel-to-toe steps down the imaginary line, turn
around, and take nine heel-to-toe steps back down the imaginary line. Mayberry
demonstrated a portion of the test, during which Poole again began walking without
being asked. Mayberry again returned her to the standing position before instructing
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OHIO FIRST DISTRICT COURT OF APPEALS
her to begin the walk-and-turn test.
{¶11} Mayberry reviewed the cruiser camera footage of the walk-and-turn test
while he was on the stand. After reviewing the footage, Mayberry testified that he
calculated Poole to have scored five out of eight clues on the walk-and-turn test. But
he was only able to identify four clues in court, despite refreshing his recollection with
his report in court. Those four clues were starting the test too soon, losing balance
during the instructional phase, stepping off of the line, and an improper turn.
Mayberry testified that only two clues were needed on the walk-and-turn test to
consider a person intoxicated.
{¶12} The final field sobriety test Mayberry testified he conducted was the
one-leg stand. This requires a person to choose one leg, raise it off the ground by six
inches with the toes pointed up, and count for 30 seconds. The State played
Mayberry’s cruiser cam footage of Poole’s performance on the one-leg stand test.
Mayberry then testified that he scored one out of four clues, because she put her leg
down at the 16 second mark. But he conceded that two clues are needed to consider a
person intoxicated on the one-leg stand test, and Poole only had one.
{¶13} Mayberry explained that, after conducting the three NHTSA field
sobriety tests, he conducted an additional test, the Modified Romberg, that he learned
through his additional police training. The Modified Romberg requires a person to
stand with their feet together and their hands at their side with their head tilted
backwards. The person then closes their eyes and silently counts to 30. When they
believe 30 seconds have elapsed, they raise their head and open their eyes. As
Mayberry explained, alcohol is a known depressant, so the test measures a person’s
ability to accurately estimate a 30-second period of time.
{¶14} Mayberry testified that, based on Poole’s performance on the field
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OHIO FIRST DISTRICT COURT OF APPEALS
sobriety tests, he determined that she was under the influence and decided to arrest
her.
{¶15} Defense counsel cross-examined Mayberry. On cross-examination,
Mayberry admitted that he forgot to take a picture of the radar with Poole’s car going
55 m.p.h. Mayberry also conceded that his report lacked detail as to the condition of
Poole’s eyes and that it did not say her eyes were bloodshot, glassy, or watery. His
report also did not indicate that Poole spoke with slurred speech or was stuttering.
Mayberry clarified the facts that gave rise to his suspicion of OVI prior to the field
sobriety testing: speeding, an odor of alcohol, and providing credit cards rather than
a driver’s license. But defense counsel pointed at that Mayberry’s arrest report only
indicated that speed and odor were indicators of intoxication, and that he did not
reference the credit card or the field sobriety testing as the bases for arrest in that
report.
{¶16} Defense counsel then asked questions about the credit card and played
the portion of the cruiser camera video that captured this interaction. Mayberry
admitted that, whereas he previously testified that Poole handed him two different
credit cards, she actually only gave him one credit card.
{¶17} Defense counsel also questioned Mayberry about speed and specifically
pointed out that the NHTSA manual excludes speed as an indicator of intoxication.
Mayberry conceded this point.
{¶18} With regard to the HGN test, Mayberry agreed that the NHTSA
standards required him to turn off all automobile hazard lights during the test. And
he testified that he did in fact turn them off. But defense counsel played Mayberry’s
cruiser camera footage, which showed that the hazard lights on Poole’s vehicle were
on during the HGN test. Defense counsel also pointed out that Poole did not have her
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shoes on during the walk-and-turn test, a fact that Mayberry had omitted during his
direct examination. Mayberry also conceded that Poole had actually performed better
on the walk-and-turn test than he had scored and that she counted the number of steps
and walked heel-to-toe correctly.
{¶19} With regard to the one-leg stand test, defense counsel asked Mayberry
a series of questions about his demonstration of the test. Mayberry conceded that he
also put his foot down during the test and that he was not intoxicated while doing so.
He later described the weight of his uniform as contributing to his inability to balance.
{¶20} After Mayberry testified, the parties presented oral closing arguments.
For its part, the State argued that the officer reasonably suspected Poole was
intoxicated based on the odor of alcohol coming from her vehicle and the fact she
handed Mayberry a credit card rather than her driver’s license. The State also argued
that the field sobriety tests were conducted in substantial compliance with the NHTSA
standards. With regard to the HGN, the State admitted that Poole’s hazard lights
remained on, but pointed to the fact that Mayberry’s were off to demonstrate
substantial compliance. The State also suggested that Poole demonstrated sufficient
clues on the tests to show intoxication.
{¶21} The defense, on the other hand, argued that Poole’s performance on the
field sobriety testing did not demonstrate impairment. With regard to the one-leg
stand test, the defense contended that Poole demonstrated fewer clues than the officer
did when he demonstrated the test. With regard to the walk-and-turn test, the defense
highlighted cruiser camera video showing that Poole performed better on the test than
Mayberry. With regard to the HGN test, Poole argued that Mayberry performed the
test incorrectly by pointing her in the direction of the flashing lights on her car, which
should have been turned off under the NHTSA standards.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} The trial court issued its decision on Poole’s motion to suppress in open
court on April 30, 2024. It made the following findings on the record:
1) Mayberry mocked Poole about the way she spoke to him.
2) Mayberry indicated to his partner that he wanted to get her out
of her car so that he could determine whether the odor of alcohol
was coming from her person or from her car.
3) The HGN test was not performed in substantial compliance with
the NHTSA manual because Poole was facing flashing lights
during the test.
4) Mayberry stated in his report that Poole committed more clues
on the walk-and-turn test than he could identify in the cruiser
cam footage of the test.
5) Poole performed better than Mayberry on the one-leg stand test.
Poole put her foot down once, but Mayberry put his foot down
twice.
6) Mayberry conducted a non-NHTSA test, the Modified Romberg,
to gather more evidence after he conducted the NHTSA field
sobriety tests.
7) Poole’s only traffic infraction was speeding. Poole came to a
proper stop and did not slur her speech.
8) Poole performed better on the field sobriety testing than
Mayberry reported.
{¶23} In addition to these findings, the trial court interpreted Mayberry’s
administration of a non-NHTSA test as evidence that he was unconvinced of Poole’s
intoxication following the NHTSA tests. The court concluded that Mayberry would
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not have needed to investigate further following the standard field sobriety tests if he
believed those tests supported a finding of intoxication.
{¶24} The trial court then cited several cases to support its analysis, including
State v. Phoenix, 2010-Ohio-6009 (1st Dist.), and State v. Beagle,
2003-Ohio-4331
(2d Dist.). It indicated that Phoenix permitted it to take into account the fact that the
officer’s testimony conflicted with what was depicted on the video. It therefore held
that there was no probable cause to arrest Poole for OVI under R.C. 4511.19(A)(1)(a)
and granted Poole’s motion to suppress.
{¶25} The State now appeals.
Analysis
{¶26} In a single assignment of error, the State challenges the trial court’s
judgment granting Poole’s suppression motion.
{¶27} In ruling on a motion to suppress, the trial court is in the best position
to assess the credibility of the witnesses and make findings based on the evidence
presented to it. State v. Rasool, 2022-Ohio-3409, ¶ 5 (1st Dist.). Where the trial court
makes such factual findings, we are bound to follow them if they are supported by
competent, credible evidence. State v. Daniels,
2024-Ohio-3392, ¶ 6 (1st Dist.). We
review the trial court’s legal conclusions de novo.
Id.
{¶28} In an OVI case, a warrantless arrest is constitutional where it is
supported by probable cause. City of Cleveland v. Clark, 2024-Ohio-4491, ¶ 31 (8th
Dist.). This standard assesses whether the arresting officer had sufficient information
at the time of the arrest, derived from a reasonably trustworthy source of facts and
circumstances, to cause a reasonable and prudent person to believe that the suspect
committed the offense.
Rasool at ¶ 6.
{¶29} In disputing the trial court’s conclusion that Poole’s arrest was without
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OHIO FIRST DISTRICT COURT OF APPEALS
probable cause, the State does not take issue with the trial court’s factual findings. Nor
does it challenge the trial court’s conclusions regarding the conflict between
Mayberry’s testimony and his cruiser camera footage or his decision to administer an
additional non-NHTSA test. Instead, it argues that, even accepting the trial court’s
factual findings, the evidence presented at the suppression hearing nonetheless
amounted to probable cause to support Poole’s arrest.
{¶30} In mounting this argument, the State claims that it proved the following
below: Poole was exceeding the speed limit by 20 m.p.h., Mayberry smelled alcohol
when he approached Poole’s car, Poole attempted to give Mayberry a credit card rather
than her driver’s license, and Poole performed poorly on field sobriety testing. But the
trial court’s factual findings—which we are bound to follow on appeal—exclude these
assertions.
{¶31} To that end, the trial court made detailed findings of fact below. None
of those findings concerned Poole’s rate of speed, the source of the odor of alcohol, or
Poole’s actions in handing Mayberry a credit card. And the trial court disagreed with
the State’s assertion that Poole failed field sobriety testing. To the contrary, the trial
court made a finding that video evidence contradicted Mayberry’s testimony in court.
The trial court also concluded that Poole actually performed better on the field sobriety
testing than Mayberry reported after watching the cruiser camera footage. And the
trial court also determined that Mayberry’s administration of the HGN test did not
substantially comply with NHTSA standards, a finding the State does not challenge on
appeal. Taken together, the trial court’s factual findings suggest that the trial court
viewed Mayberry’s testimony with skepticism.
{¶32} The trial court had good reason to doubt Mayberry, as he contradicted
both himself and the video footage several times. For example, he first testified that
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OHIO FIRST DISTRICT COURT OF APPEALS
Poole provided him two credit cards, but later admitted that she only did this once.
He also indicated that Poole failed five clues on the walk-and-turn test but could only
identify four on the video. He later admitted that at least two of those clues were not
even recognized by the NHTSA manual. Additionally, he testified that he complied
with NHTSA standards during the HGN test by turning all the hazard lights off, but
then the video showed that he both left Poole’s flashing lights on and turned her in
that direction to conduct the test. With regard to the radar check of Poole’s speed, he
testified that he simply forgot to take a photograph of the radar result, but then later
said he had taken the picture and provided it with his report. And Mayberry was not
completely consistent about what evidence supported Poole’s arrest. In his report, he
wrote that Poole was intoxicated based on her speed and odor of alcohol. But at the
suppression hearing, he indicated that he arrested her based on her performance on
the field sobriety tests without mentioning those other criteria. Given these
inconsistencies, it appears that the trial court simply did not credit Mayberry’s
testimony about other aspects of the traffic stop, including how Poole smelled, how
fast she was driving, and what card she handed Mayberry when he approached her car.
{¶33} Specifically with regard to the field sobriety tests, the trial court made a
finding that the HGN test did not substantially comply with the NHTSA standards.
With regard to the walk-and-turn test, the trial court made a finding that Poole
performed better than Mayberry said she did. With regard to the one-leg stand test,
the trial court found that Poole outperformed Mayberry. The State does not
specifically challenge any of these findings, which undercut the reliability of the field
sobriety tests in amounting to probable cause. See, e.g., State v. Simmons, 2019-Ohio-
559, ¶ 19 (10th Dist.) (“when there is video evidence of the defendant’s performance,
a court is entitled as a factfinder to consider whether the defined ‘clues’ were actually
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present; it is not required to believe an officer’s testimony about the presence of clues
when the video shows otherwise”).
{¶34} That leaves Poole’s alleged speeding, the odor of alcohol, and providing
a credit card rather than a driver’s license. Even if we agreed with the State that these
facts actually occurred—a determination we are not empowered to make in light of the
trial court’s factual findings—that information is less than what is needed to generate
probable cause in an OVI case. Courts have held that the mere odor of alcohol and
speeding, without more, does not indicate a person is under the influence, particularly
when the person lacks other indicia of intoxication like bloodshot eyes or slurred
speech. See, e.g., Beagle, 2003-Ohio-4331, at ¶ 38-39 (2d Dist.) (finding lack of
probable cause for OVI where driver crossed lane twice and came close to hitting
another car, was slow in stopping, smelled of alcohol, and admitted to drinking, but
lacked slurred speech and bloodshot eyes and otherwise presented normally to
officers); State v. Beck,
1988 Ohio App. LEXIS 517, *7-8 (Feb. 18, 1988 10th Dist.).
And while providing a credit card rather than a driver’s license might be an indication
of some confusion, case law suggests that more is needed in a person’s presentation or
behavior to demonstrate that they are intoxicated. See
Beagle at ¶ 38 (explaining that
a driver may be “somewhat disconcerted and distracted upon being pulled over by a .
. . patrol officer” rather than being intoxicated).
{¶35} As we noted in Rasool, 2022-Ohio-3409, at ¶ 14 (1st Dist.), “a reviewing
court should not reverse a decision simply because it holds a different opinion
concerning the credibility of the witnesses and evidence submitted before the trial
court.” The trial court in Poole’s case clearly disbelieved Mayberry’s in-court
testimony and relied instead on cruiser camera footage demonstrating a lack of
evidence that Poole was intoxicated when she was arrested. Because the trial court
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was in the best position to assess the credibility of the witnesses and evidence, and
because we are bound by the trial court’s resulting factual findings, we overrule the
State’s assignment of error.
Conclusion
{¶36} The State’s sole assignment of error is overruled, and the judgment of
the trial court granting Poole’s motion to suppress evidence collected prior to her
warrantless OVI arrest is affirmed.
Judgment affirmed.
BERGERON and WINKLER, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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