[Cite as State v. Sayler,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 15CA0094-M

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE HEATHER L. SAYLER WADSWORTH MUNICIPAL COURT COUNTY OF MEDINA, OHIO Appellant CASE No. 15-TRC-00878

DECISION AND JOURNAL ENTRY

Dated: September 30, 2016

SCHAFER, Judge.

{¶1} Defendant-Appellant, Heather L. Sayler, appeals the judgment of the Wadsworth

Municipal Court denying her motion to suppress. For the reasons set forth below, we affirm.

I.

{¶2} At about 5:00 a.m. on March 8, 2015, a motorist traveling northbound on Route

71 in Medina County, Ohio observed a white Toyota SUV that was ahead of him lose control

and spin off into the median of the interstate. The motorist immediately called 9-1-1 to report

the incident. The motorist never saw who was driving the vehicle.

{¶3} Trooper Richard Dudas of the Ohio State Highway Patrol was dispatched to the

scene of the accident. Upon his arrival, Trooper Dudas observed that a unit from the Medina

County Sheriff’s Office and the Seville Police Department were already present at the scene.

Trooper Dudas also observed a white Toyota SUV that had sustained heavy damage resting

against the cable barriers in the median of the interstate. A sergeant with the Medina County 2

Sheriff’s Office informed Trooper Dudas that the incident was a single-vehicle crash and that

only one occupant was present in the vehicle. That occupant, later identified as Sayler, sustained

no injuries as a result of the accident.

{¶4} Trooper Dudas then made contact with Sayler, who was sitting in the back of the

sergeant’s cruiser. Trooper Dudas asked Sayler to step out of the cruiser to answer some

questions. While Sayler was speaking, Trooper Dudas observed a “very strong odor of an

alcoholic beverage coming from her person.” He also observed that “her eyes were bloodshot

and glassy.” Sayler admitted that she had consumed three beers. Trooper Dudas then asked

Sayler to perform standardized field sobriety tests, which she agreed to do. Following the field

sobriety tests, Trooper Dudas placed Sayler under arrest for operating a motor vehicle while

under the influence of alcohol.

{¶5} Sayler was charged with one count of operating a motor vehicle while under the

influence of alcohol (“OVI”) in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor,

one count of failure to control her vehicle in violation of R.C. 4511.202, a minor misdemeanor,

and one count of failing to wear a seatbelt in violation of R.C. 4513.263(B)(1), a minor

misdemeanor. Sayler pleaded not guilty to the charges and the matter proceeded through the

pretrial process.

{¶6} On May 6, 2015, Sayler filed a motion to suppress alleging: (1) Trooper Dudas

lacked probable cause to arrest her for driving under the influence of alcohol, (2) Trooper Dudas

did not substantially comply with the standardized procedures promulgated by the National

Highway Traffic Safety Administration (NHTSA) when conducting the field sobriety tests, and

(3) the State improperly obtained a sample of her blood. The trial court subsequently held a

hearing on Sayler’s suppression motion and ultimately determined that Trooper Dudas had 3

probable cause to arrest Sayler, that Trooper Dudas substantially complied with the NHTSA

manual when conducting the field sobriety tests, and that Sayler gave consent to have her blood

drawn. However, the trial court concluded that the State failed to present “any evidence as to

whether or not the [blood] sample was refrigerated once it was received at the crime lab.” As

such, the trial court suppressed the results of the blood test.

{¶7} The matter proceeded to a jury trial on September 8, 2015. The jury ultimately

found Sayler guilty of driving under the influence of alcohol and the trial court found Sayler

guilty of failing to control her vehicle. However, Sayler was acquitted of the seatbelt violation.

On October 2, 2015, the trial court sentenced Sayler, but stayed the imposition of sentence

pending appeal.

{¶8} Sayler filed this timely appeal and raises one assignment of error for this Court’s

review.

II.

Assignment of Error

The trial court erred by not granting Appellant, Heather Saylor’s Motion to Suppress.

{¶9} In her sole assignment of error, Sayler argues that the trial court erred by denying

her motion to suppress. Specifically, Sayler contends that the trial court should have granted her

suppression motion because the State failed to prove that she was operating a motor vehicle on

the date in question and because the State failed to prove by clear and convincing evidence that

Trooper Dudas substantially complied with the 2013 NHTSA manual when performing the field

sobriety tests. We disagree on both points. 4

A. Standard of Review

{¶10} A motion to suppress evidence presents a mixed question of law and fact. State v.

Burnside,

, 2003–Ohio–5372, ¶ 8. “When considering a motion to suppress,

the trial court assumes the role of trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses.”

citing State v. Mills,

(1992). Thus, a reviewing court “must accept the trial court’s findings of fact if

they are supported by competent, credible evidence.” Id. at ¶ 8. “Accepting these facts as true,

the appellate court must then independently determine, without deference to the conclusion of

the trial court, whether the facts satisfy the applicable legal standard.” Id., citing State v.

McNamara,

(4th Dist. 1997).

B. Operating a Motor Vehicle

{¶11} Sayler first contends that the trial court erred by denying her suppression motion

because Trooper Dudas lacked probable cause to arrest her for OVI. Specifically, Sayler argues

that the State failed to prove by a preponderance of the evidence at the suppression hearing that

she was operating a motor vehicle when the alleged offenses occurred. We disagree.

{¶12} The legal standard for probable cause to arrest for OVI is whether “at the moment

of the arrest, the police had sufficient information, derived from a reasonably trustworthy source

of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was

driving under the influence.” State v. Homan,

(2000), superseded by

statute on other grounds. This involves an examination of the totality of the facts and

circumstances known at the time of the arrest.

In evaluating whether probable cause exists,

an officer’s observations concerning a defendant’s performance on nonscientific standardized

field sobriety tests are admissible even if the results are not. State v. Schmitt,

, 5

2004–Ohio–37, ¶ 14–16; State v. Vonalt, 9th Dist. Medina No. 10CA0103-M,

.

{¶13} Here, Trooper Dudas was the only law enforcement officer who testified at the

suppression hearing. Trooper Dudas testified that upon arriving at the scene of the accident, he

observed a white Toyota SUV in the median of the interstate, which had sustained heavy

damage. Trooper Dudas testified that he observed no other traffic accidents in the immediate

area when he responded to this reported accident. He further testified that a sergeant with the

Medina County Sheriff’s Office informed him that the accident was a single-vehicle crash and

that the vehicle only had one occupant, who was identified as Sayler. Trooper Dudas also

testified that Sayler was alone at the scene of the accident when he arrived. While speaking with

Sayler, Trooper Dudas stated that he observed a strong odor of an alcoholic beverage coming

from her person. He also stated that Sayler had bloodshot and glassy eyes. Trooper Dudas

subsequently had Sayler perform standardized field sobriety tests, including the horizontal gaze

nystagmus test, the walk-and-turn test, and the one-leg stand. Lastly, Sayler never denied being

the driver of the Toyota SUV during her conversation with Trooper Dudas or otherwise appeared

surprised by Trooper Dudas’ request that she perform the field sobriety tests. Trooper Dudas

testified that due to the single-vehicle crash, the odor of alcoholic beverage emanating from

Sayler, Sayler’s glassy and bloodshot eyes, Sayler’s admission to consuming three beers, and

Sayler’s performance during the field sobriety tests, he elected to place Sayler under arrest for

OVI.

{¶14} In light of the totality of the circumstances before the trial court, we cannot say

that the trial court erred in concluding that Trooper Dudas possessed probable cause to arrest

Sayler for OVI. 6

C. Substantial Compliance with NHTSA Standards

{¶15} Sayler also argues that Trooper Dudas did not substantially comply with NHTSA

standards for generally-accepted field sobriety tests. In order for the results of field-sobriety

tests to be admissible, the state is not required to show strict compliance with testing standards,

but instead bears the burden of demonstrating that the officer substantially complied with

NHTSA standards. R.C. 4511.19(D)(4)(b); State v. Clark, 12th Dist. Brown No. CA2009–10–

039, 2010–Ohio–4567, ¶ 11. “A determination of whether the facts satisfy the substantial

compliance standard is made on a case-by-case basis.” State v. Fink, 12th Dist. Warren Nos.

CA2008–10–118, CA2008–10–119,

, ¶ 26. “‘The state may demonstrate what

the NHTSA standards are through competent testimony and/or by introducing the applicable

portions of the NHTSA manual.’” Middleburg Hts. v. Gettings, 8th Dist. Cuyahoga No. 99556,

, quoting Parma Hts. v. Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-

Ohio-3458, ¶ 42, citing State v. Boczar,

, 2007–Ohio–1251, ¶ 28.

{¶16} In the instant matter, the trial court took judicial notice of the 2013 NHTSA

manual. However, while the trial court took judicial notice of the NHTSA manual, Sayler did

not make the manual part of the appellate record. Without any standards in the record with

which to compare Trooper Dudas’ actions, it is impossible for this Court to determine whether

the field sobriety tests were conducted in substantial compliance. State v. Mencini, 9th Dist.

Summit No. 27322,

, citing State v. Aldridge, 3d Dist. Marion No. 9-13-54,

. Moreover, the video of Sayler performing the field sobriety tests has not

been made a part of the appellate record. The trial court relied heavily on the video in

determining that Trooper Dudas did substantially comply with NHTSA standards. As it was

Sayler’s burden to supply a complete record, this Court is left to presume regularity and affirm 7

the trial court’s judgment. See State v. Daniel, 9th Dist. Summit No. 27390,

(“[W]here the appellant has failed to provide a complete record to facilitate appellate review,

this Court is compelled to presume regularity in the proceedings below and affirm the trial

court’s judgment.”), citing State v. McGowan, 9th Dist. Summit No. 27092,

.

{¶17} Sayler’s assignment of error is overruled.

III.

{¶18} With Sayler’s sole assignment of error having been overruled, the judgment of the

Wadsworth Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wadsworth

Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 8

Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CARR, P. J. CONCURS IN JUDGMENT ONLY.

MOORE, J. CONCURRING IN JUDGMENT ONLY.

{¶19} I concur in the majority’s judgment. However, with respect to Ms. Sayler’s

argument that Trooper Dudas failed to substantially comply with NHTSA standards, I would

overrule the argument solely on the basis that the video of the stop has not been made a part of

the appellate record. The trial court relied heavily on the video in determining that Trooper

Dudas did substantially comply with NHTSA standards. As it was Ms. Sayler’s burden to

supply a complete record, I would presume regularity and affirm the trial court’s judgment on

that basis alone. See State v. Peterson, 9th Dist. Summit No. 27890,

.

APPEARANCES:

BRENT L. ENGLISH, Attorney at Law, for Appellant.

NORMAN BRAGUE, Director of Law, and THOMAS J. MORRIS, Assistant Director of Law, for Appellee.