[Cite as State v. Schriml,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-12-32

v.

MICHAEL D. SCHRIML, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion Municipal Court Trial Court No. TRC 11 7448A

Judgment Affirmed

Date of Decision: July 1, 2013

APPEARANCES:

Jeff Ratliff for Appellant

Steven E. Chaffin for Appellee Case No. 9-12-32

PRESTON, P.J.

{¶1} Defendant-appellant, Michael D. Schriml (“Schriml”), appeals from

the judgment of the Marion Municipal Court finding him guilty of operating a

motor vehicle while under the influence of alcohol (“OVI”) after his motion to

suppress was denied and he entered a plea of no contest. We affirm.

{¶2} On September 16, 2011, at approximately 2:00 a.m., Schriml was

stopped for a marked lanes violation when he made a right turn onto a one-way

street. (Mar. 1, 2012 Tr. at 17-18). Following field sobriety tests, Schriml was

placed under arrest and charged with an OVI in violation of R.C.

4511.19(A)(1)(a), a first-degree misdemeanor, operating a vehicle with a

prohibited breath-alcohol concentration of .095 grams by weight of alcohol per

210 liters of breath in violation of R.C. 4511.19(A)(1)(d), a first-degree

misdemeanor, and failure to drive within the marked lanes, a second moving

violation, in violation of R.C. 4511.33 and a fourth-degree misdemeanor. (Doc.

No. 1). The two alcohol-related offenses were assigned trial court case no. TRC

11 7448A, and the marked lanes violation was assigned trial court case no. TRC

11 7448B. (Id.).

{¶3} Schriml entered a written plea of not guilty and filed a motion to

suppress. (Doc. Nos. 3, 12). In his suppression motion, Schriml claimed

numerous errors and improprieties requiring the suppression of all evidence

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obtained, including that the officer did not have a lawful reason to stop him; that

there was no basis to detain and request field sobriety testing; that the field

sobriety tests were not done in compliance with applicable rules and regulations;

and, that the breath test was unconstitutionally coerced. (Doc. No. 12).

{¶4} Schriml also challenged whether the breath test was administered in

substantial compliance with the Ohio Director of Health’s rules and regulations

and whether the equipment was in proper working order. More specifically,

Schriml alleged that the State could not show: that the officer substantially

complied with the operator’s checklist instructions; that the test was conducted

free of RFI; that the machine was in proper working order; that an instrument

check had been done in accordance with the rules and regulations; that the solution

used to perform the instrument check was valid and properly maintained; that the

record of the instrument checks and records of maintenance and repairs were not

retained as required by law; that the operator was licensed to operate the machine;

and, that the persons performing the instrument check were currently licensed.

(Id.).

{¶5} A hearing on the motion to suppress was held on March 1, 2012, at

which time the trial court heard the testimony of State Trooper Tawana Young and

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Schriml. The trial court also viewed the video of the traffic stop and field sobriety

tests, and several exhibits were admitted into evidence.1

{¶6} Trooper Young testified that she observed Schriml make a right turn

from Main Street into the far left lane of Church Street (which was a one-way

street), rather than turning into the right lane closest to the curb and then use his

turn signal to move to the left. (Mar. 1, 2012 Tr. at 17). Trooper Young also

testified that “[Schriml] went over the white dotted line by a full tire width,”

which was a violation of the marked lanes statute, R.C. 4511.33. (Id. at 17-18).

Trooper Young waited for the traffic light to turn green, eventually caught up with

Schriml, and followed him for a while after activating her camera, but she did not

see any other traffic violations. (Id. at 18). Trooper Young testified that she

activated her lights and made a traffic stop for the marked lanes violation. (Id.).

She testified that she asked Schriml for his driver’s license, registration, and proof

of insurance. (Id. at 19). Trooper Young testified that, after Schriml handed her

these items, she “asked [Schriml] if he would come back so [she] could check his

driving record.” (Id. at 20).2 She testified that Schriml did not state that he did not

want to comply, and that she would have said it was fine if Schriml did not want to

accompany her to her vehicle. (Id.). Trooper Young testified that she stated to

1 Testimony and exhibits concerning the BAC DataMaster testing and Schriml’s medical records were also proffered, after the trial court sustained the State’s objections as to their admission. (Mar. 1, 2012 Tr. at 83- 88). 2 Although Trooper Young testified that Schriml handed her his registration and proof of insurance, Schriml indicated during the traffic stop that he did not have those items in his possession. (D’s Ex. A).

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Schriml “hey, would you come back so I can check your driving record,” and there

was no hesitation on his part to do so. (Id. at 20-21). Trooper Young testified that

she really should have said “do you mind” exiting the vehicle or coming back to

the vehicle, and, if the driver refuses, she cannot force them to accompany her.

(Id. at 21). Trooper Young testified that, prior to Schriml entering her cruiser, she

patted him down for officer safety. (Id.). Trooper Young testified that Schriml

never objected to the pat down. (Id. at 22).

{¶7} Trooper Young testified that law enforcement officers invite drivers to

their vehicle to check their driving record and to observe any odors of alcoholic

beverage upon the driver’s breath. (Id. at 22). Trooper Young then testified that,

after Schriml was in her vehicle, she detected a “strong odor of alcoholic

beverage” about his breath and observed that his eyes were glassy and bloodshot.

(Id. at 23). She then asked Schriml whether he had consumed any alcoholic

beverages, and he responded that he had a couple drinks during the evening. (Id.).

Trooper Young then proceeded to conduct a horizontal gaze nystagmus (“HGN”)

test and observed five out of six clues for impairment. (Id. at 24, 31). Trooper

Young testified that she then asked Schriml to perform the walk and turn test,

which revealed three of eight possible clues for impairment. (Id. at 34, 40).

Trooper Young testified that Schriml also performed the one-leg stand, which

revealed two out of four possible clues for impairment. (Id. at 41, 44). Trooper

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Young testified that Schriml was subsequently tested with results of .095 grams of

alcohol per 210 liters of breath, which is over the legal limit. (Id. at 47).

{¶8} On cross-examination, Trooper Young testified that, beyond the initial

traffic violations, she did not observe any clues while Schriml was driving that

would have indicated possible impairment. (Id. at 50-51). She testified that

Schriml pulled straight into a parking lot when she pulled him over, not into a

particular parking spot, and she pulled her cruiser approximately six feet directly

behind his vehicle. (Id. at 56-57). Trooper Young testified that she did not detect

an odor of alcoholic beverage when she first contacted Schriml or when he exited

the vehicle. (Id. at 59). She testified that she asked Schriml to exit the vehicle so

she could check his driving record, and he exited the vehicle with no problems.

(Id.). Trooper Young did not inform Schriml that he was not required to exit his

vehicle or to come back to her cruiser. (Id. at 60). She testified that she was

checking Schriml’s driving record to determine if he had any previous moving

violations. (Id. at 61). Trooper Young testified that Schriml’s speech was fine.

(Id.). She further testified that some drivers do not agree to exit the vehicle, but

more drivers comply than do not. (Id. at 62-63). Trooper Young testified that she

ran Schriml’s driving record prior to beginning the HGN test. (Id. at 63). Trooper

Schriml testified that she did not read Schriml his Miranda rights prior to asking

him to sit in the front seat of her cruiser. (Id. at 64). She testified that the stop

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was a routine traffic stop for a marked lanes violation, and Schriml was not

twitching, agitated, or nervous. (Id.). Trooper Young testified that it was possible

that Schriml had a strong odor of alcoholic beverage because he had just

consumed his last drink. (Id. at 66). Trooper Young testified that, prior to

performing the field sobriety tests, Schriml informed her that he was overweight

and had poor balance. (Id. at 68). She testified that Schriml twice indicated that

he had two vodka and cranberry drinks that evening. (Id. at 68-69). Trooper

Young testified that Schriml could not perform the one leg stand and put his one

foot down more than three times. (Id. at 71). She testified that she asked Schriml

again about what he was drinking so he would indicate the size of the drinks, and

Trooper Young testified that Schriml indicated that his last drink was about 20

minutes prior to his arrest. (Id. at 75-76).

{¶9} Schriml testified that he was at the Someplace Else bar immediately

prior to the traffic stop, and he had one vodka cranberry drink. (Id. at 96-97). He

testified that he exited the parking lot of the bar, turned right onto Main Street, and

stopped at a traffic light. (Id. at 97). Schriml testified that he then turned right

heading east on Church Street, turning into the first available lane to the right.

(Id.). Schriml testified that Church Street is a three-lane, one-way street, and he

turned into the first lane, not the third lane. (Id. at 97-98). He testified that he did

not notice Trooper Young behind him until he heard the sound of an engine

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accelerating, and he was already on Sergeant Street just coming out of the curve

on the road. (Id. at 98-99). Schriml testified that he proceeded to park in a well-lit

parking lot for safety reasons. (Id. at 99). He testified that, when Trooper Young

asked him how many drinks he consumed, he stated two drinks. (Id.). He also

testified that he weighs close to 300 pounds, is 6’ 1” to 6’ 2” tall, and is more than

50 pounds overweight. (Id. at 100). Schriml also testified that he has curvature of

the spine, which causes his hips to be out of alignment, one leg is about an inch

and a half longer than the other, and he has torticollis of the neck, all of which

cause balance issues. (Id. at 100-101). He testified that he thought Trooper

Young ordered him to exit his vehicle, and he did not have an option. (Id. at 101).

He testified that Trooper Young was “in charge and [he] had to do what she said,”

and he felt like he was being detained when she patted him down for weapons.

(Id.). Schriml testified that he felt obligated to answer Trooper Young’s questions,

and she did not Mirandize him. (Id. at 101-102). He testified that he was

uncomfortable sitting on the ledge of her cruiser when she performed the HGN

test, and that Trooper Young performed the test faster than reflected by her

testimony. (Id. at 102). Schriml testified that he did not feel impaired while

driving. (Id.). Defense counsel also proffered several exhibits, which were

medical records concerning Schriml’s back conditions. (Id. at 102-108).

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{¶10} On cross-examination, Schriml testified that he started drinking after

11:00 p.m., and he had two drinks. (Id. at 109). He testified that he did not object

to exiting his vehicle, but he did not want to give Trooper Young the impression

that he was resisting arrest, either. (Id. at 109-110). He testified that he was

familiar with the HGN test and had one before. (Id. at 110). Schriml testified that

he could not perform either the one leg stand or the walk and turn tests, because he

is overweight and his thighs rub together. (Id. at 112). He also testified that his

Lasik eye surgery and frequent sinus surgeries may have affected the results of his

HGN test, though he could say for sure. (Id. at 113).

{¶11} The trial court would not permit defense counsel to present any

evidence or raise any questions regarding issues with the breath test and the BAC

DataMaster. The trial court found that the defense had failed to provide sufficient

fact-specific allegations in the motion to suppress that would put the State on

notice of defense counsel’s challenges to the breath test. (Id. at 7-14, 76-89).

{¶12} After hearing the testimony that was permitted, the trial court denied

the motion to suppress and made the following findings:

[T]he Court finds the charging officer to have probable cause and reasonable suspicion to stop [Schriml] and request [Schriml] to sit with her while checking his driving record, reasonable, articulable suspicion to prolong the stop, reasonable grounds to request [Schriml] to submit to the Standardized Field Sobriety Tests, and probable cause to arrest [Schriml]. Further, the Court finds, as stated on the record, the following: the standardized field sobriety tests and the BAC were administered in substantial compliance of

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NHTSA regulations; the BAC test was not unconstitutionally coerced; the individual administering the alcohol test held the necessary credentials; the operator of the breath test assured that the test was free of any radio transmissions; the BAC was in proper working order, properly maintained and not in need of repairs at the time of the test; the solution is valid; and the breath testing procedure is not unconstitutional. (Doc. No. 20).

{¶13} The matter was scheduled for a jury trial, but Schriml subsequently

entered a plea of no contest. On May 7, 2012, he was found guilty of OVI in

violation of R.C. 4511.19(A)(1)(a), a first offense in six years.3 The trial court

sentenced Schriml to 90 days in jail, with 87 days suspended; ordered that he pay a

fine of $1,000, with $450 suspended; and, suspended his operator’s license for six

months. (Doc. No. 50).

{¶14} On May 29, 2012, Schriml filed his notice of appeal. (Doc. No. 52).

Schriml raises four assignments of error for our review.

Assignment of Error No. I

The stop of [Schriml’s] vehicle was not supported by probable cause or a reasonable and articulable suspicion that [Schriml] had committed a traffic violation and the officer’s continued detention of [Schriml] for the purpose of administering field sobriety tests was not supported by a reasonable and articulable suspicion separate from the initial stop of [Schriml’s] vehicle.

{¶15} In his first assignment of error, Schriml asserts that there was no

basis for the initial traffic stop, and therefore, it was unlawful. He further

3 The marked lanes violation, assigned case no. TRC 11 7448B, was dismissed as part of the plea negotiation.

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maintains that there was no basis to continue to detain him, to remove him from

his vehicle, and to conduct field sobriety tests.

{¶16} Appellate review of a decision on a motion to suppress evidence

presents a mixed question of law and fact. State v. Burnside,

,

, ¶ 8. At a suppression hearing, the trial court assumes the role of

trier of fact and is in the best position to resolve factual questions and evaluate the

credibility of witnesses. Burnside at ¶ 8; State v. Carter,

(1995). When reviewing a trial court’s decision on a motion to suppress, an

appellate court must uphold the trial court’s findings of fact if they are supported

by competent, credible evidence. Burnside at ¶ 8. With respect to the trial court’s

conclusions of law, however, our standard of review is de novo and we must

independently determine as a matter of law, without deference to the trial court’s

conclusion, whether the trial court’s decision meets the applicable legal standard.

State v. Wolfe, 3d Dist. No. 11-11-01,

; State v. McNamara,

(4th Dist. 1997).

{¶17} First, Schriml claims that the trial court erred in denying his motion

to suppress because Trooper Young lacked probable cause or a reasonable,

articulable suspicion justifying the stop of his vehicle. At the suppression hearing,

Trooper Young testified that she effectuated the traffic stop because she witnessed

Schriml drive outside of the marked lanes in violation of R.C. 4511.33. (Mar. 1,

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2012 Tr. at 18). “Where a police officer stops a vehicle based on probable cause

that a traffic violation has occurred or was occurring, the stop is not unreasonable

under the Fourth Amendment to the United States Constitution even if the officer

had some ulterior motive for making the stop * * *.” Dayton v. Erickson,

(1996), syllabus, following U.S. v. Ferguson,

(6th Cir. 1993).

Schriml contends that the Trooper’s testimony is not credible because she was a

block away from his vehicle when the violation occurred and could not have seen

the violation from her vantage point. Credibility is best left to the trier of fact,

however, and we will not second-guess the trial court’s determination. Carter,

. Since the trial court had competent, credible evidence that

Schriml violated the law, the traffic stop was constitutionally permissible.

Erickson at syllabus. Schriml also contends that the trooper stopped him to

conduct a fishing expedition for suspected operation of a motor vehicle while

under the influence. However, the law enforcement officer’s ulterior motive, if

any, is irrelevant once he has probable cause to believe a traffic violation occurred,

which is the case here.

{¶18} Next, Schriml argues that the Trooper did not have any evidence that

he was impaired from which she could direct him from his vehicle. He argues

that, in order to remove an individual from a vehicle for purposes of conducting

field sobriety tests, the officer must have a reasonable and articulable suspicion to

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believe the person was operating the motor vehicle while under the influence of

alcohol or drugs. Schriml further argues that Trooper Young lacked any

justification to detain him beyond the original scope and purpose of the initial

traffic stop for field sobriety tests.

{¶19} The State contends that it was reasonable for Trooper Young to

continue the detention because she observed an odor of alcoholic beverage from

the vehicle, and Schriml admitted he had consumed alcohol immediately upon

stopping him. In particular, the State represented that the following occurred:

Upon initial contact with the Defendant, Trooper Young noticed an odor of alcoholic beverage coming from the vehicle. Further, Trooper Young approached the passenger and explained the reason for the stop. Trooper Young asked the driver whether he had consumed alcohol that evening and he admitted that he had. Trooper Young asked the Defendant to step out of the car and he complied.

(Appellee’s Brief at Statement of Facts).

{¶20} The State’s brief has misrepresented the facts in this case. According

to Trooper Young, she did not smell any odor of alcoholic beverage when she

approached the vehicle, when she asked Schriml if he would exit the vehicle, or

when she patted him down for weapons. (Mar. 1, 2012 Tr. at 19-20, 59). Trooper

Young did not smell the odor of alcoholic beverage upon Schriml until he was

seated in her cruiser. (Id. at 22-23, 62). Furthermore, Schriml never admitted he

consumed alcohol that evening until after Trooper Young smelled the odor of

alcoholic beverage upon his breath while he was seated in the cruiser. (Id. at 23,

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64). Despite the State’s incorrect representations of fact, Trooper Young was

permitted to request that Schriml exit his vehicle and further justified in detaining

Schriml for field sobriety tests.

{¶21} Trooper Young did not “remove” Schriml from his vehicle for the

purpose of conducting field sobriety tests. When Trooper Young asked Schriml

for his registration and proof of insurance, Schriml indicated that he did not have

them in the vehicle. (D’s Ex. A). Trooper Young then stated, “Why don’t you

come on out so I can check your driving record.” (Id.). Schriml responded,

“Sure” and stepped out of the vehicle, at which point Trooper Young stated,

“Alright, come on back, follow me.” (Id.). Trooper Young then checked Schriml

for weapons and asked him to “[h]ave a seat in the front,” pointing toward the

cruiser. (Id.). Based upon our review of the record, we cannot conclude that

Trooper Young “removed” Schriml from his vehicle for the purpose of conducting

field sobriety tests; rather, she asked Schriml to exit the vehicle as a result of his

traffic violation to check his driving record/status, which was permissible.

Pennsylvania v. Minns,

,

(1977); State v. Evans,

(1993).

{¶22} Schriml next argues that his placement in the front seat was

unreasonable since there was no concern for officer safety, citing State v. Lozada,

(2001). The issue presented in Lozada was “whether it was

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reasonable to search the defendant for weapons before placing him in [the]

Trooper[’s] patrol car.”

. Lozada thus concerned whether or not an

officer may search a person for weapons and place them into a patrol car even

when the officer did not have any reason to believe that the driver was armed and

dangerous.

. The Trooper in Lozada testified that it was his standard

practice during routine traffic stops to remove drivers from their vehicles, pat them

down for weapons, and place them into his cruiser.

. The Ohio

Supreme Court was concerned that such a practice would effectively eviscerate the

Terry standard.

. Consequently, the Court held that that “during a

routine traffic stop, it is unreasonable for an officer to search the driver for

weapons before placing him or her in a patrol car, if the sole reason for placing the

driver in the patrol car during the investigation is for the convenience of the

officer.”

. In reaching this conclusion, though, the Court acknowledged

that the mere placement of a driver into a cruiser may be constitutionally

permissible.

, citing State v. Carlson,

(9th

Dist. 1995). The case at bar does not concern the constitutionality of the pat-down

search since no evidence was discovered as a result of that search, and Schriml’s

reliance upon Lozada is misplaced. State v. Serafin, 11th Dist. No. 2011-P-0036,

, ¶ 25.

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{¶23} Furthermore, in viewing the video of the traffic stop and evaluating

the totality of the circumstances, we conclude that Schriml voluntarily exited his

vehicle and sat in the cruiser. Aside from that, we believe that Trooper Young’s

decision to ask Schriml to sit in the front of her cruiser was reasonable in this case

since Schriml was unable to provide her with his registration and proof of

insurance. Under these circumstances, Trooper Young could have reasonably

believed that Schriml was engaged in criminal activity, which would have

separately justified placing him into her cruiser. State v. McCaulley,

,

(2d Dist.).

{¶24} Schriml next argues that his continued detention for field sobriety

tests violated the Fourth Amendment. We disagree.

{¶25} Once an officer stops a vehicle for a minor traffic offense and begins

the process of obtaining the offender’s license and registration, the officer may

then proceed to investigate the offender for OVI if the officer has a reasonable

suspicion, based on specific and articulable facts separate from the facts that

served as the impetus for the traffic stop, that the detainee is under the influence.

State v. Evans,

(3d Dist. 1998), citing State v. Yemma,

11th Dist. No. 95-P-0156 (Aug. 9, 1996).

{¶26} Whether a law enforcement officer possessed reasonable suspicion or

probable cause to continue to detain an individual must also be examined in light

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of the “totality of the circumstances.” State v. Cromes, 3d Dist. No. 17-06-07,

, citing United States v. Arvizu,

,

(2002). Circumstances from which an officer may derive a reasonable,

articulable suspicion that the detained driver was operating the vehicle while under

the influence include, but are not limited to:

(1) the time and day of the stop (Friday or Saturday night as

opposed to, e.g., Tuesday morning); (2) the location of the stop (e.g.,

whether near establishments selling alcohol); (3) any indicia of

erratic driving before the stop that may indicate a lack of

coordination (speeding, weaving, unusual braking, etc.); (4) whether

there is a cognizable report that the driver may be intoxicated; (5)

the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.);

(6) impairments of the suspect’s ability to speak (slurred speech,

overly deliberate speech, etc.); (7) the odor of alcohol coming from

the interior of the car, or, more significantly, on the suspect’s person

or breath; (8) the intensity of that odor, as described by the officer

(“very strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect’s

demeanor (belligerent, uncooperative, etc.); (10) any actions by the

suspect after the stop that might indicate a lack of coordination

(dropping keys, falling over, fumbling for a wallet, etc.); and (11)

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the suspect’s admission of alcohol consumption, the number of

drinks had, and the amount of time in which they were consumed, if

given. Evans,

.

“All of these factors, together with the officer’s previous experience in dealing

with [impaired] drivers, may be taken into account by a reviewing court in

determining whether the officer acted reasonably. No single factor is

determinative.”

{¶27} Trooper Young testified that she has worked as an Ohio State

Highway Patrol Officer for over nine years and has participated in hundreds of

OVI cases. (Mar. 1, 2012 Tr. at 15-16). In this case, Trooper Young observed

Schriml travel over the marked traffic lanes around 2:00 a.m. Friday morning, not

very far from a local bar. (Id. at 17-18). After Schriml was in the front passenger

seat of the cruiser, Trooper Young observed a strong odor of alcoholic beverage,

and then Schriml subsequently admitted to having two drinks. (Id. at 23); (D’s Ex.

A). Trooper Young also observed that Schriml’s eyes were glassy and bloodshot.

(Mar. 1, 2012 Tr. at 23). After observing all these things, Trooper Young began

administering the HGN test. After reviewing the totality of the circumstances, we

conclude that Trooper Young had a reasonable, articulable suspicion to continue

the traffic stop for purposes of conducting field sobriety testing.

{¶28} Schriml’s first assignment of error is, therefore, overruled.

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Assignment of Error No. II

The trial court erred in refusing to permit [Schriml] to introduce evidence regarding the administration of the chemical test and finding the chemical test was done in substantial compliance with the Ohio Department of Health rules and regulations.

{¶29} In his second assignment of error, Schriml argues that the trial court

erred by forbidding him from introducing evidence regarding the administration of

the chemical test finding that he failed to give the State sufficient notice of these

claims.

{¶30} When seeking to suppress breath test results, the defendant must first

set forth an adequate basis for the motion. State v. Shindler,

(1994). The motion must state the “legal and factual bases with sufficient

particularity to place the prosecutor and court on notice [as to] the issues

[contested].”

; Crim.R. 47. On the other hand, a mere technical

challenge to a breath test is sufficient even without case-specific allegations. State

v. Yeaples,

,

(3d Dist.) (citations

omitted).

{¶31} Once the defendant has established an adequate basis for the motion,

the State must then demonstrate substantial compliance with the Ohio Department

of Health regulations. Xenia v. Wallace,

(1988).

However, the extent of the state’s burden to show substantial compliance varies

with the degree of specificity of the violation alleged by the defendant. Yeaples at

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¶ 23. “When a defendant’s motion to suppress raises only general claims, along

with the Administrative Code sections, the burden imposed on the state is fairly

slight.” State v. Johnson,

(12th Dist. 2000). In

particular, if the defendant’s motion fails to allege a fact-specific way in which a

violation has occurred, the State must offer only basic testimony evidencing

compliance with the code section.

, citing State v. Bissaillon, 2d

Dist. No. 06-CA-130,

.

{¶32} The motion to suppress in this case stated several alleged violations

of the Ohio Administrative Code with respect to the breath test; however, the

memorandum attached did not specifically allege any fact-specific way in which

the violation occurred. (Doc. No. 12). Under these circumstances, the trial court

did not err by excluding evidence relevant to particular violations of which the

State did not have sufficient notice. Furthermore, the State was required to have

only basic testimonial evidence of compliance, which was done through Trooper

Young’s testimony in this case. (Mar. 1, 2012 Tr. at 45-49);

.

{¶33} Schriml’s second assignment of error is, therefore, overruled.

Assignment of Error No. III

The trial court erred in finding the field sobriety tests were done in substantial compliance with NHTSA or its equivalent.

{¶34} In his third assignment of error, Schriml argues that the trial court

erred in finding that the field sobriety tests were done in substantial compliance

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with the NHTSA manual. In particular, Schriml argues that the State failed to

introduce the manual or, alternatively ADAP guidelines, at the hearing.

{¶35} In response to a motion to suppress regarding OVI field sobriety

tests, the State must show the requisite level of compliance with accepted testing

standards, typically the NHSTA. State v. Loveridge, 3d Dist. No. 9-06-46, 2007-

Ohio-4493, ¶ 11 (citations omitted). Consequently, part of the State’s burden

“‘includes demonstrating what the NHTSA requirements are, through competent

testimony and/or introducing the applicable portions of the NHTSA manual.’”

quoting State v. Djisheff, 11th Dist. No.2004-T-0123,

, citing

State v. Brown,

,

. “HGN test results are

admissible absent expert testimony so long as the proper foundation has been

shown as to the administering officer’s training and ability to administer the test

and as to the actual technique used by the officer in administering the test.” State

v. Boczar,

,

, ¶ 27.

{¶36} Trooper Young testified that she has been employed with the Ohio

State Highway Patrol for over nine years, and she had been trained in the

techniques and procedures involving the apprehension and detection of persons

suspected of alcohol use, including ADAP training and yearly refresher courses.

(Mar. 1, 2012 Tr. at 14-15). Trooper Young testified that she was also trained in

field sobriety testing and testified concerning the requirements for HGN testing,

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according to her training. (Id. at 15, 27-28). Trooper Young also testified that if

she detected all six clues in the eyes during an HGN test, there was a 77% chance

that a person is over the legal limit of .08 grams of alcohol per 210 liters of breath,

according to the NHTSA manual. (Id. at 33). She further testified that “[d]ue to

training, the NHTSA manual, with the walk and turn test, two clues shows that

there’s a 68 percent chance that the person could be over the legal limit, and

[Schriml] had a total of three.” (Id. at 41). (See also Id. at 44). Consequently, the

State produced sufficient evidence that the field sobriety tests were conducted in

compliance with the NHSTA manual or ADAP guidelines. State v. Powers, 6th

Dist. No. L-04-1210,

.

{¶37} Schriml’s third assignment of error is, therefore, overruled.

Assignment of Error No. IV

The trial court erred in finding the officer possessed probable cause to arrest [Schriml].

{¶38} In his fourth assignment of error, Schriml argues that the trial court

erred in finding that Trooper Young had probable cause to arrest him for OVI. In

particular, Schriml contends that the field sobriety tests were not done in

substantial compliance with the NHTSA manual; and therefore, the only “valid”

evidence available to the Trooper was an odor of alcoholic beverage and his

admission to consuming two alcoholic drinks.

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{¶39} “In determining whether the police had probable cause to arrest an

individual for [OVI], we must consider whether, at the moment of arrest, the

police had 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. Thompson, 3d Dist. Nos. 14-04-34 and 14-

04-35,

, citing State v. Homan,

(2000),

superseded by statute on other grounds as stated in Bozcar,

. The

existence of probable cause is based on the totality of the circumstances. Cromes,

, citing Arvizu,

.

{¶40} Since we have determined that the State presented sufficient

evidence to demonstrate substantial compliance with the NHSTA manual, the

clues observed by Trooper Young during the field sobriety tests are relevant for a

determination of probable cause for arrest here. Prior to the arrest, Trooper Young

observed Schriml travel over the marked traffic lanes around 2:00 a.m. Friday

morning, not very far from a local bar. (Mar. 1, 2012 Tr. at 17-18). After Schriml

was in the front passenger seat of the cruiser, Trooper Young observed a strong

odor of alcoholic beverage, and then Schriml subsequently admitted to having two

drinks. (Id. at 23); (D’s Ex. A). Trooper Young also testified that Schriml’s eyes

were glassy and bloodshot. (Mar. 1, 2012 Tr. at 23). Thereafter, Trooper Young

observed five out of six clues on the HGN test, three out of eight clues on the walk

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and turn test, and two out of four clues on the one-leg stand. (Id. at 31, 40, 44). In

light of all of those circumstances, Trooper Young had sufficient cause to believe

that Schriml was operating his vehicle while under the influence of alcohol.

Therefore, the trial court did not err by finding that Trooper Young had probable

cause to arrest Schriml.

{¶41} Schriml’s fourth assignment of error is, therefore, overruled.

{¶42} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, J., concurs.

/jlr

WILLAMOWSKI, J., dissents.

{¶43} I must respectfully dissent from the majority’s decision in the first

assignment of error, which attempts to justify the Trooper’s actions in ordering

Schriml out of his car, frisking him, and placing him in the police cruiser for

further custodial interrogation for the admitted purpose of placing him in close

quarters so that she could attempt to detect an odor of alcohol on his breath. This

type of infringement on Schriml’s rights in order to conduct a “fishing expedition”

is not permissible.

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{¶44} It is well-established that once an officer lawfully stops an

individual, the officer must carefully tailor the scope of the stop “to its underlying

justification.” Florida v. Royer,

(1983); see, also, State v.

Gonyou,

(6th Dist. 1995). Additionally, the length of

the stop must last no longer than is necessary to effectuate the purpose of the stop.

Royer,

. Furthermore, the investigative methods employed should

be the least intrusive means reasonably available to verify or dispel the officer's

suspicion in as short a period of time. State v. Duran, 9th Dist. No. 11CA009969,

, quoting Royer; see also United States v. Brignoni–Ponce,

, 881–882 (1975).

{¶45} “The rule set forth in Royer is designed to prevent law enforcement

officers from conducting ‘fishing expeditions’ for evidence of a crime.” State v.

Cromes, 3d Dist. No. 17-06-07,

, citing

Various activities, including following a script, prolonging a traffic stop in order to

“fish” for evidence, separating an individual from his car and engaging in “casual

conversation” in order to observe “body language” and “nervousness,” have been

deemed (depending on the overall facts of the case) to be manipulative practices

which are beyond the scope of “the fulfillment of the purpose for which the stop

was made.” State v. Correa,

(6th Dist. 1995).

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{¶46} The Supreme Court of Ohio has stated that “[w]e do not take lightly

the encroachment into one’s personal liberty by allowing a driver to be placed in a

patrol car and subjecting him or her to a pat-down search for weapons.”4 State v.

Lozada,

,

. The Supreme Court of Ohio

further stated:

Placing a driver in a patrol car during a routine traffic stop increases the intrusive nature of the detention. Goss v. State (Fla.App. 1999),

. Subjecting a driver to a pat-down search for weapons before placing the driver in a patrol car further increases the level of intrusion because “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392 U.S. at 24–25, 88 S.Ct. at 1881–1882, 20 L.Ed.2d at 908.

Lozada, 92 Ohio St.3d at 78-79. The Supreme Court of Ohio held that “[d]uring a

routine traffic stop, it is unreasonable for an officer to search the driver for

weapons before placing him or her in a patrol car, if the sole reason for placing the

driver in a patrol car during the investigation is for the convenience of the officer.”

Id. at paragraph two of the syllabus. See also State v. McCaulley,

(2d Dist. 2005).

4 The Court did find such action to be justified if it protects the officers or the driver from a dangerous condition during the traffic stop. However, that exception is inapplicable in this case as there was absolutely no evidence in the record that the Trooper believed there was any danger in this situation. To the contrary, the testimony of both the Trooper and Schriml was uncontroverted that this was not a dangerous situation. Schriml was alone, appeared non-threatening, was polite and cooperative, and told the Trooper that he did not have any weapons when she inquired. He pulled over as soon as it was safe, and parked in a well-lit parking lot right by the road. The Trooper’s vehicle prevented Schriml from leaving, and she was clearly in charge of the entire situation, while Schriml politely and meekly complied with the Trooper’s orders and instructions.

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{¶47} In spite of the fact that this was a de minimus traffic violation and the

Trooper had not observed any signs of impairment, either in his driving while she

followed him, or upon initiating the traffic stop, Trooper Young told Schriml to

get out of his car, brusquely directed him where to stand, demanded that he

remove his hands from his pockets, frisked him, and then ordered him to go sit in

the patrol car.5 Without a reasonable, articulable suspicion of impaired driving or

another crime, Trooper Young’s actions were unwarranted according to law. The

Trooper’s own testimony verified the fact that the purpose in doing this was what

she had been taught to do (i.e., “following a script”) in order to “fish” for evidence

unrelated to the original traffic stop. Trooper Young testified:

Q. What was the purpose of getting [him] into the car, other than checking the license and everything?

A. The driving record? We bring people back to our vehicles because we’re in close contact, there’s no alcohol in our patrol car, and while we’re checking the driving record, and also within that close contact we want to see if we observe any odor of an alcoholic beverage emanating about their breath.

Q. Is that something you’ve been trained in to observe and consider as part of the clues in the investigation?

A. Yes.

(Emphasis added. Tr. 22)

5 Although Trooper Young testified that she “asked” him if he would “accompany” her back to her vehicle (Tr. 20), the video clearly indicates that he was told to get out of his car, and then she proceeded to abruptly order him around, and then she told him to sit in her car. Schriml testified that he felt like he was being detained, that she was in charge, and that he did not have any choice but to obey her directions. (Tr. 101- 102)

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{¶48} It is true that a police officer may order a driver to get out of a car

which has been properly stopped for a traffic violation, even without suspicion of

criminal activity. See Pennsylvania v. Mimms,

(1977). “The police

have already lawfully decided that the driver shall be briefly detained; the only

question is whether he shall spend that period sitting in the driver's seat of his car

or standing alongside it.” State v. Evans,

,

.

While the Majority claims that the Trooper “asked” Schriml to exit the vehicle

(see ¶ 8), the video of the traffic stop clearly indicates that she told him to step out.

The tone of her voice when she stated “Why don’t you come on out so I can check

your driving record,” clearly conveyed a command – not a question, and her

testimony confirms that she really did not give him any choice in the matter. (Tr.

60). However, that is not an issue, since it was proper for her to request that he

exit the vehicle. Schriml willingly complied, and told her “sure.” However, that

was the last and only time that Schriml willingly gave his consent to comply with

the Trooper’s orders before he was ordered into the patrol vehicle. From that

point forward, the video recording demonstrates that the Trooper abruptly

commanded that he: “Come on back!”; “Keep your hands out of your pocket!

Face that way!”; “Over here! Over here!” [directing him where to stand]; and,

“Have a seat in the front,” which was also a clear command, not an invitation.

Schriml testified that he felt like he was being detained, that the Trooper was in

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charge, and that he did not have an option other than to do what she said. (Tr.

101)

{¶49} If Trooper Young had any probable cause to proceed to administer

the field sobriety tests,6 it did not arise until after he was in the patrol car when

she claimed that she smelled “a strong odor of alcohol” and he acknowledged that

he had a couple of drinks.7 However, the investigative stop should have never

gotten to that point, and therefore, any evidence gathered as a result should have

been suppressed. There was no valid reason for the Trooper to have done

anything beyond verifying Schriml’s driving record and issuing the traffic ticket.

It was not necessary for Schriml to be placed in the patrol car while she radioed in

to check his record.

{¶50} The Majority tries to justify the Trooper’s actions by speculating that

the Trooper “could have reasonably believed that Schriml was engaged in criminal

activity.” This was because of the fact that, after Schriml produced his driver’s

6 Even the odor of alcohol and Schriml’s admission that he had had a couple of drinks may not have been sufficient. See, State v. Stricklin, 6th Dist. No. L-10-1277,

, ¶ 15 (a slight odor of alcohol, glassy, bloodshot eyes, and admission of having consumed a “couple” of beers, were not sufficient factors to support a reasonable articulable suspicion of DUI when stopped for a de minimus traffic violation without any erratic driving or other behaviors which would indicate intoxication); State v. Spillers, 2d Dist. No. 1504,

(Mar. 24, 2000) (Traffic violations of a de minimus nature, combined with a slight odor of an alcoholic beverage, and an admission of having consumed a “couple” beers, are not sufficient to support a reasonable and articulable suspicion of DUI); State v. Dixon, 2d Dist. No.2000–CA– 30,

(Dec. 1, 2000) (mere detection of odor of alcohol and glassy, bloodshot eyes at 2:20 a.m., unaccompanied by any basis to correlate the odor with a level of intoxication which would impair driving ability, did not justify administration of field sobriety tests). 7 However, it seems somewhat unusual that there was suddenly such a “strong odor of alcohol” after he was in the patrol car; yet, the Trooper did not testify that she smelled any alcohol when she approached the car, when she told him to get out of the car, or when she was in close proximity to him while she patted him down for weapons.

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license, he explained to her that he had just cleaned out his glove compartment and

he did not have his insurance and registration with him. Trooper Young seemed to

accept this explanation and did not question Schriml any further concerning this

matter, nor did she testify or indicate on her report at any time that she had any

concerns about further criminal activity. Without any evidence in the record, it is

not for this Court to resort to speculation in order to create an excuse for an

officer’s actions when the Trooper herself gives no indication of the existence of

such reasoning. Nor does the Majority cite to any authority whereby the lack of an

insurance or registration card is considered an indicator of “criminal activity” in a

situation such as this. Compare, State v. Dozier,

, 2010-

Ohio-2918 (2d Dist.) (even when a traffic offender is not able to produce any

identification or driver’s license, it is not proper to justify a patdown for weapons).

{¶51} The authority of the Supreme Court of Ohio as set forth in Lozada is

very clear. Yet, the Majority claims that reliance upon Lozada is “misplaced”

because this case “does not concern the constitutionality of the pat-down search

since no evidence was discovered as a result of that search.” Just because no

contraband was found does not excuse the Trooper’s improper actions. That

would be comparable to saying that it is not unconstituional for police officers to

break down your door, enter your home, and conduct a warrantless search of your

premises, as long as no evidence was found! Schriml’s rights to be free from

-30- Case No. 9-12-32

unreasonable search and seizure were infringed upon. The police do not have the

authority to stop anyone for a de minimus traffic offense and frisk them merely

because they might be “guilty” of the “crime” of driving at 2:00 a.m.

{¶52} In this case, the Trooper’s protocol clearly qualified as an improper

fishing expedition in that she went far beyond what was necessary to complete the

original purpose for which the initial stop was made. Trooper Young was

admittedly searching for evidence of an additional crime, even though she was not

able to articulate any facts in support of her continued search. This was improper.

When a police officer's objective justification to continue detention of a person * * * is not related to the purpose of the original stop, and when that continued detention is not based on any articulable facts giving rise to a suspicion of some illegal activity justifying an extension of the detention, the continued detention to conduct a search constitutes an illegal seizure.

State v. Robinette,

,

, paragraph one of the

syllabus

{¶53} According to the Trooper’s own testimony, Schriml had done

nothing more than make a slightly improper, or imprecise, right-hand turn at 2:00

a.m. (when there were no other cars on the road, according to the video recording).

His behavior, his demeanor, and his interactions with the Trooper were

appropriate, polite, completely respectful, and gave no indication of impairment.

The Trooper testified that his speech was completely normal. And yet, Schriml

found himself being frisked down by the side of the road, made to sit inside a

-31- Case No. 9-12-32

police cruiser, and subjected to further questioning concerning his activities that

evening. The Trooper’s own testimony indicated that it was routine practice to

place drivers in the patrol vehicle to try to detect whether the driver may have

consumed any alcohol.

{¶54} Accordingly, I would have found that the Trooper’s actions went

beyond the bounds of what was permitted by law, and therefore, the motion to

suppress should have been granted. There was also some validity to several of the

issues Schriml raised concerning the implementation of field sobriety tests,

especially concerning his inability to perform some of the tasks due to his obesity

and other serious physical limitations that likely had an impact on the results.

However, as stated above, I believe the case should not have even proceeded to the

point of administering the field sobriety tests, if the Trooper had not conducted an

investigation far beyond what was permissible under the law, and would reverse

on those grounds.

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