[Cite as State v. Hetzel,

.]

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

STATE OF OHIO C.A. No. 29399

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE JOHN HETZEL AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 18TRC06394

DECISION AND JOURNAL ENTRY

Dated: June 24, 2020

HENSAL, Presiding Judge.

{¶1} John Hetzel appeals his conviction for operating a vehicle under the influence of

alcohol from the Akron Municipal Court. This Court affirms.

I.

{¶2} This appeal presents a challenge to the trial court’s denial of Mr. Hetzel’s pre-trial

motion to suppress and his subsequent conviction for operating a vehicle under the influence of

alcohol. According to his testimony at the suppression hearing, Trooper (now Sergeant) Nemastil

with the Ohio State Highway Patrol observed Mr. Hetzel turn right without signaling around 12:35

a.m. on April 19, 2018. As he began to follow Mr. Hetzel’s vehicle, he observed two marked-lane

violations where Mr. Hetzel drove over the white fog line on the right-hand side of the road.

Trooper Nemastil testified that these violations were significant, noting that almost half of Mr.

Hetzel’s vehicle travelled over the fog line. 2

{¶3} Trooper Nemastil activated his overhead lights and Mr. Hetzel immediately pulled

over. After pulling over, Mr. Hetzel left his turn signal on, which remained on throughout the

entire stop. Trooper Nemastil approached the vehicle and noticed three additional passengers. He

immediately smelled the odor of alcohol emanating from inside of the vehicle. Trooper Nemastil

asked Mr. Hetzel for his driver’s license, and Mr. Hetzel handed Trooper Nemastil his driver’s

license and his Richfield Police identification card, which was placed upside and on top of his

driver’s license. Trooper Nemastil testified that Mr. Hetzel initially would not look at him. When

he did, Trooper Nemastil observed that Mr. Hetzel’s eyes were red, bloodshot, and glassy. Trooper

Nemastil also noted that Mr. Hetzel was chewing gum and tobacco.

{¶4} Trooper Nemastil then asked Mr. Hetzel to step out of the vehicle. Once he did,

Trooper Nemastil smelled alcohol on his person, and asked him to spit out his gum and chewing

tobacco. Trooper Nemastil asked Mr. Hetzel if he had consumed any alcohol that evening, and

Mr. Hetzel admitted that he had consumed a couple of drinks. Trooper Nemastil then conducted

three field sobriety tests: the Horizontal Gaze Nystagmus (“HGN”) test, the walk-and-turn test,

and the one-leg-stand test. Trooper Nemastil indicated that he observed 6 out of 6 clues of

impairment during the HGN test, 3 out of 8 clues during the walk-and-turn test, and 3 out of 4

clues during the one-leg-stand test. Trooper Nemastil placed Mr. Hetzel under arrest and

transported him to the station. While there, Trooper Nemastil read and showed Mr. Hetzel the

BMV 2255, and offered Mr. Hetzel an opportunity to take a breathalyzer test, which he consented

to. The results of that test indicated that Mr. Hetzel’s blood alcohol content was .144.

{¶5} Mr. Hetzel was charged with operating a vehicle under the influence of alcohol or

drugs in violation of Revised Code Sections 4511.19(A)(1)(a) and 4511.19(A)(1)(d), and a

marked-lane violation in violation of Section 4511.33(A). He pleaded not guilty and later moved 3

to suppress certain evidence prior to trial, including the results of the field sobriety tests and the

results of the breathalyzer test. More specifically, he argued that Trooper Nemastil: (1) did not

have a valid reason to stop him; (2) lacked reasonable, articulable suspicion to justify his continued

detention for the purpose of conducting field sobriety tests; (3) failed to administer the field

sobriety tests in compliance with the National Highway Traffic Safety Administration (“NHTSA”)

guidelines; (4) did not have probable cause to arrest him; (5) obtained statements from him in

violation of his Fifth Amendment Right against self-incrimination; and (6) failed to administer the

breathalyzer test in compliance with Revised Code Section 4511.19 and Ohio Administrative Code

Chapter 3701-53. After a hearing, the trial court denied Mr. Hetzel’s motion. He then pleaded no

contest to the OVI charge under Section 4511.19(A)(1)(a), and the remaining charges were

dismissed. He now appeals, raising four assignments of error for this Court’s review. We will

address some of his assignments of error out of order.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERR[]ED IN FINDING THAT THE ARRESTING OFFICER HAD REASONABLE ARTICULABLE SUSPICION TO DETAIN APPELLANT BEYOND THE SCOPE OF THE INITIAL TRAFFIC STOP TO CONDUCT FIELD SOBRIETY TESTING.

{¶6} In his first assignment of error, Mr. Hetzel argues that the trial court erred by

denying his motion to suppress relative to whether Trooper Nemastil had reasonable, articulable

suspicion to justify his continued detention for purposes of conducting field sobriety testing. This

Court disagrees.

{¶7} Appellate review of a trial court’s ruling on a motion to suppress presents a mixed

question of law and fact. State v. Burnside,

,

, ¶ 8. The trial

court assumes the role of trier of fact and is in the best position to evaluate witness credibility and 4

resolve factual issues. State v. Mills,

(1992). Accordingly, an appellate

court must accept a trial court’s findings of fact when they are supported by competent, credible

evidence. State v. Roberts,

,

, ¶ 100. Accepting those facts as

true, the appellate court then must independently determine, without deference to the trial court’s

conclusion, whether those facts satisfy the applicable legal standard. Burnside at ¶ 8, citing State

v. McNamara,

(4th Dist. 1997).

{¶8} As this Court has stated:

The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution protect individuals from unreasonable searches and seizures. “Requiring a driver to submit to a field sobriety test constitutes a seizure within the meaning of the Fourth Amendment.” State v. Keserich, 5th Dist. Ashland No. 14-COA-011,

, quoting State v. Bright, 5th Dist. Guernsey No. 2009-CA-28,

, ¶ 17. However, a police officer does not violate an individual’s constitutional rights by administering field sobriety tests if the police officer has reasonable suspicion of criminal activity. See State v. Simin, 9th Dist. Summit No. 26016,

. “Reasonable suspicion requires that the officer ‘point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” State v. Buchanan, 9th Dist. Medina No. 13CA0041-M,

, quoting Terry v. Ohio,

(1968). Reasonable suspicion is based on the totality of the circumstances. See United States v. Cortez,

(1981).

State v. Hochstetler, 9th Dist. Wayne No. 16AP0013,

. We note that “no

single factor is dispositive of whether a law enforcement officer is legally justified in conducting

field sobriety tests in any given case.” Id. at ¶ 12. In denying Mr. Hetzel’s motion to suppress,

the trial court relied upon Trooper Nemastil’s testimony regarding Mr. Hetzel’s traffic violations,

the time of the stop (i.e., around 12:35 a.m.), his bloodshot eyes, his admission that he had been

drinking, and the smell of mint and chewing tobacco, which Trooper Nemastil indicated could be

used to cover the odor of alcohol.

{¶9} On appeal, Mr. Hetzel argues that his minor lane violations, failure to use a turn

signal, bloodshot eyes, and general odor of alcohol emanating from a vehicle with three other 5

passengers did not provide Trooper Nemastil with reasonable, articulable suspicion to prolong his

detention for purposes of conducting field sobriety tests. In support of his position, Mr. Hetzel

directs this Court to cases for the proposition that an officer does not have reasonable suspicion to

continue a detention for purposes of conducting field sobriety tests based upon: (1) an unspecified

odor of alcohol on the defendant’s person and the admission to consuming a few beers; (2) a single

minor marked-lanes violation, an odor of alcohol emanating from the interior of the vehicle, an

odor or marijuana, and the defendant’s red, watery, bloodshot eyes; (3) three or four de minimis

lane violations followed by a period of unremarkable driving, a slight odor of alcohol on the

defendant’s person, and the defendant’s admission to consuming a couple of beers; (4) the time of

night, the defendant’s glassy, bloodshot eyes, an odor of alcohol on the defendant’s person, and

the defendant’s admission to consuming one or two beers; (5) a de minimis traffic violation, the

defendant’s glassy, bloodshot eyes, and an unspecified odor of alcohol; (6) a de minimis traffic

violation, the defendant’s red, glassy eyes, and a slight odor of alcohol; (7) a slight odor of alcohol

on the defendant, the defendant’s red, glassy eyes, and the defendant’s admission to consuming

two beers; and (8) the time of night, the defendant’s red, glassy eyes, and the strong odor of alcohol

coming from the defendant’s person. Mr. Hetzel also cites excerpts from the 2015 NHTSA manual

regarding the scientifically validated clues of intoxication, essentially arguing that out of all the

clues of intoxication, he exhibited very few. He concludes that, because Trooper Nemastil lacked

reasonable suspicion, the trial court erred by not suppressing all of the evidence that was obtained

after he was ordered to exit his vehicle.

{¶10} Initially, we note that “[t]his court’s review is necessarily limited to the record on

appeal.” In re J.C.,

,

, ¶ 15 (9th Dist.). As Mr. Hetzel

acknowledges in his merit brief, the NHTSA manual was not admitted into evidence at the 6

suppression hearing. This Court, therefore, will disregard the numerous excerpts from the 2015

NHTSA manual regarding the scientifically validated clues of intoxication, and will instead focus

on Trooper Nemastil’s testimony regarding those clues.

{¶11} This Court’s review of the dash cam video supports Trooper Nemastil’s testimony

that Mr. Hetzel’s marked-lane violations were significant; his vehicle travelled well over the white

fog line twice within a short period of time. We, therefore, are unpersuaded by Mr. Hetzel’s

assertion that these were “minor” marked-lane violations. As previously noted, Trooper Nemastil

also testified that the stop occurred around 12:35 a.m., that Mr. Hetzel had red, bloodshot, and

glassy eyes, that an odor of alcohol was emanating from the vehicle, and that Mr. Hetzel was

chewing gum and tobacco, which he noted could be used to cover the odor of alcohol. To the

extent that Mr. Hetzel argues that out of all the possible clues of intoxication, he exhibited very

few, we reiterate that “no single factor is dispositive of whether a law enforcement officer is legally

justified in conducting field sobriety tests in any given case.” Hochstetler,

. Viewing the totality of the circumstances at the moment Trooper Nemastil ordered Mr. Hetzel

out of the vehicle – as Mr. Hetzel has urged this Court to do – we conclude that Trooper Hetzel

had reasonable, articulable suspicion to prolong the detention for purposes of conducting field

sobriety tests. See Simin,

(noting that the defendant committed several

traffic violations, which contributed to the officer’s reasonable suspicion); State v. Sunday, 9th

Dist. Summit No. 22917,

(noting that the “late hour” contributed to the

officer’s reasonable suspicion); State v. Tomko, 9th Dist. Summit No. 19253,

,

*3 (Nov. 3, 1999) (concluding that the defendant’s bloodshot eyes and the smell of alcohol

contributed to the officer’s reasonable suspicion); Sunday at ¶ 31 (noting that the fact the officer

observed a strong odor of mint, which he testified could be used to mask the odor of alcohol, 7

contributed to the officer’s reasonable suspicion). Mr. Hetzel’s first assignment of error is

overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERR[]ED IN FINDING THAT ARRESTING OFFICER HAD PROBABLE CAUSE TO ARREST APPELLANT.

{¶12} In his third assignment of error, Mr. Hetzel argues that the trial court erred by

denying his motion to suppress because Trooper Nemastil lacked probable cause to arrest him. He

argues that, since Trooper Nemastil lacked reasonable, articulable suspicion to order him out his

vehicle to conduct field sobriety tests, any evidence obtained after he was ordered to exit his

vehicle should have been suppressed and, therefore, cannot be used to support a finding of probable

cause. For the reasons that follow, this Court disagrees.

{¶13} “[T]his Court reviews a probable cause determination de novo.” State v. Russo, 9th

Dist. Medina No. 09CA0009-M,

, ¶ 6, quoting Sunday at ¶ 28. Before an officer

may effectuate a warrantless arrest, he must have probable cause that the suspect is engaging in

criminal activity. State v. McGinty, 9th Dist. Medina No. 08CA0039-M,

.

An officer has probable cause to arrest a person for driving under the influence of alcohol “if, at

the moment of the arrest, the totality of the facts and circumstances within the officer’s knowledge

and of which he had reasonably trustworthy information were sufficient to warrant a prudent

person in believing that the suspect had violated R.C. 4511.19.” State v. Kurjian, 9th Dist. Medina

No. 06CA0010-M,

, quoting In re V.S., 9th Dist. Summit No. 22632, 2005-

Ohio-6324, ¶ 13.

{¶14} Notably, the “totality of the facts and circumstances can support probable cause for

arrest even in the absence of the administration of field sobriety tests.” Russo at ¶ 10. “In fact, we

have held that ‘the totality of the facts and circumstances can support a finding of probable cause 8

to arrest even when the results of the field sobriety tests must be excluded for lack of compliance

to standardized procedures.’”

quoting Sunday at ¶ 32. Additionally, we note that “[r]egardless

of a challenge to field sobriety tests, an officer may testify regarding his observations made during

administration of the tests.” (Alteration sic.). State v. Slates, 9th Dist. Summit No. 25019, 2011-

Ohio-295, ¶ 29, quoting State v. Griffin, 12th Dist. Butler No. CA2005-05-118,

. When a trial court erroneously fails to suppress the results of a field sobriety test, any error

in that regard is rendered harmless if the officer otherwise had probable cause to arrest the

defendant. See State v. Calder, 7th Dist. Monroe No. 08 MO 5,

, ¶ 47; State v.

Hessel, 12th Dist. Warren No. CA2009-03-031,

, ¶ 22 (“Ohio courts have

repeatedly found that even if a trial court erroneously fails to suppress the results of field sobriety

tests, when ample evidence exists to support the arrest, this error is harmless.”).

{¶15} Even assuming, without deciding, that the trial court should have excluded the

results of the field sobriety tests (as Mr. Hetzel has argued in his second assignment of error

addressed below), Trooper Nemastil still had probable cause to arrest Mr. Hetzel. In our analysis

of Mr. Hetzel’s first assignment of error, this Court has already concluded that reasonable,

articulable suspicion existed to support Trooper Nemastil’s continued detention of Mr. Hetzel for

purposes of conducting field sobriety tests. This was based upon Trooper Nemastil’s testimony

regarding Mr. Hetzel’s traffic violations, the time of the stop, Mr. Hetzel’s red, bloodshot, and

glassy eyes, an odor of alcohol emanating from the vehicle, and the fact that Mr. Hetzel was

chewing gum and tobacco, which Trooper Nemastil noted could be used to cover the odor of

alcohol. Trooper Nemastil also testified that – after Mr. Hetzel exited the vehicle – he observed

an odor of alcohol coming from Mr. Hetzel’s person, and Mr. Hetzel admitted to consuming a few

alcoholic drinks. Additionally, Trooper Nemastil testified that, during the walk-and-turn test, Mr. 9

Hetzel took ten steps instead of nine, stopped to steady himself, and used his arms for balance.

Trooper Nemastil further testified that, during the one-leg-stand test, Mr. Hetzel used his arms for

balance, swayed, and placed his foot on the ground. In light of this evidence, this Court concludes

that the totality of the facts and circumstances indicate that Trooper Nemastil had probable cause

to arrest Mr. Hetzel for driving under the influence of alcohol. See Russo at ¶ 12 (concluding that

the totality of the circumstances, including “the late hour, [the defendant’s] bloodshot and glossy

eyes, the immediate smell of alcohol upon approach, [the defendant’s] admission to having had a

few alcoholic beverages, and the officer’s observations during the field sobriety tests,” supported

a finding of probable cause). Mr. Hetzel’s third assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERR[]ED IN FINDING THAT THE FIELD SOBRIETY TESTS WERE CONDUCTED IN SUBSTANTIAL COMPLIANCE WITH THE NHTSA MANUAL, AS THE STATE FAILED TO INTRODUCE THE APPLICABLE PORTIONS OF THE NHTSA MANUAL STANDARDS INTO EVIDENCE.

{¶16} In his second assignment of error, Mr. Hetzel argues that the trial court erred by

determining that the field sobriety tests were performed in substantial compliance with the NHTSA

standards when the State did not introduce the manual into evidence, and Trooper Hetzel did not

provide testimony explaining what those standards were. As a result, he argues, this Court should

reverse the trial court’s denial of his motion to suppress and remand the matter for the trial court

to determine whether probable cause existed to arrest him without considering the field sobriety

tests.

{¶17} As previously noted, the “totality of the facts and circumstances can support

probable cause for arrest even in the absence of the administration of field sobriety tests[,]” or

“‘when the results of the field sobriety tests must be excluded for lack of compliance to 10

standardized procedures.’” Russo,

, at ¶ 10, quoting Sunday,

. In light of this Court’s resolution of Mr. Hetzel’s third assignment of error, we conclude that

Mr. Hetzel has not established that the trial court committed reversible error by determining that

Trooper Nemastil conducted the field sobriety tests in substantial compliance with the NHTSA

standards. See Calder,

, at ¶ 47 (concluding that any error in the trial court’s

failure to suppress the results of the field sobriety tests was harmless because the officer otherwise

had probable cause to arrest the defendant); Hessel,

, at ¶ 22 (“Ohio courts have

repeatedly found that even if a trial court erroneously fails to suppress the results of field sobriety

tests, when ample evidence exists to support the arrest, this error is harmless.”). Mr. Hetzel’s

second assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERR[]ED IN FAILING TO SUPPRESS THE RESULTS OF THE BREATHALYZER TESTS AS THE STATE FAILED TO MEET THEIR EVIDENTIARY BURDEN TO ESTABLISH THAT THE TEST WAS ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH THE APPLICABLE REVISED CODE AND ADMINISTRATIVE CODE REGULATIONS.

{¶18} In his fourth assignment of error, Mr. Hetzel argues that the trial court erred by

failing to suppress the results of the breathalyzer test. For the reasons that follow, this Court

concludes that Mr. Hetzel has not established reversible error.

{¶19} After the trial court denied Mr. Hetzel’s motion to suppress, he pleaded no contest

to the OVI charge under Section 4511.19(A)(1)(a), which prohibits persons from operating a

vehicle while under the influence of alcohol and “focuses on the conduct of the defendant and

observations of the arresting officers[.]” State v. Gladman, 2d Dist. Clark No. 2013 CA 99, 2014-

Ohio-2554, ¶ 24. The OVI charge under Section 4511.19(A)(1)(d), which prohibits persons with 11

a prohibited blood-alcohol concentration from operating a vehicle and focuses on the results of a

chemical test or breathalyzer exam, was dismissed.

{¶20} Criminal Rule 11(B)(2) provides that a “plea of no contest is not an admission of

defendant’s guilt, but is an admission of the truth of the facts alleged in the indictment[.]” As this

Court has stated, “[a] no contest plea generally waives the right to appeal most issues.” (Alteration

sic.) State v. Palacios, 9th Dist. Lorain No. 17CA011093,

, quoting State v.

Smith, 9th Dist. Lorain No. 08CA009338,

. It does not, however, “preclude

a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial

motion, including a pretrial motion to suppress evidence.” (Emphasis added.) Crim.R. 12(I).

{¶21} Here, Mr. Hetzel asserts that the trial court erred by not excluding the results of the

breathalyzer test. While the results of a breathalyzer test can be used to show impairment under

Section 4511.19(A)(1)(a), they are not necessary. State v. Mayl,

, 2005-Ohio-

4629, ¶ 19 (noting that the results of a bodily substance test can be used to show impairment under

Section 4511.19(A)(1)(a)); State v. Arenz, 5th Dist. Licking No. 06CA111,

(“The results of the blood test are not necessary to establish a violation of R.C. 4511.19(A)(1)(a).”).

Mr. Hetzel has not explained how the results of that test prejudiced him with respect to his

conviction under Section 4511.19(A)(1)(a). In fact, his assignment of error only references

breathalyzer-test results in relation to per se OVI offenses, yet Mr. Hetzel’s per se OVI charge

under Section 4511.19(A)(1)(d) was dismissed, and he has not explained how he suffered prejudice

in relation to that offense. Given the procedure of this case1 and the arguments before this Court

1 We note that this case is procedurally distinguishable from this Court’s prior decisions in State v. Palacios, 9th Dist. Lorain No. 17CA011093,

, and State v. Oaks, 9th Dist. Wayne No. 18AP0032,

. 12

on appeal, we cannot say that Mr. Hetzel has established that the trial court committed reversible

error when it denied his motion to suppress relative to the results of the breathalyzer test. See

Princess Kim, L.L.C. v. U.S. Bank, N.A., 9th Dist. Summit No. 27401,

(“To

demonstrate reversible error, an aggrieved party must demonstrate both error and resulting

prejudice.”). Accordingly, Mr. Hetzel’s fourth assignment of error is overruled.

III.

{¶22} Mr. Hetzel’s assignments of error are overruled. The judgment of the Akron

Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

In Palacios, after the trial court denied his motion to suppress the results of a blood test, the defendant pleaded no contest to an OVI charge under Section 4511.19(A)(1)(a), and to a per se OVI charge under Section 4511.19(A)(1)(b). Palacios at ¶ 4-5. The trial court found the defendant guilty of both charges and merged the per se OVI conviction with the defendant’s conviction under Section 4511.19(A)(1)(a). Id. at ¶ 5. The defendant challenged the trial court’s denial of his motion to suppress the results of the blood test on appeal, and this Court noted that “under ordinary circumstances, this Court would conclude that [the defendant] forfeited [that] argument.” Id. at ¶ 8, citing Smith,

. This Court, however, sustained the defendant’s assignment error, in part, based upon an issue with the defendant’s plea. Palacios at ¶ 9-11.

In Oaks, the defendant was charged with an OVI offense under Section 4511.19(A)(1)(a); she was not charged with a per se OVI offense. Oaks at ¶ 3. After the trial court denied her motion to suppress the results of a urine test, the defendant pleaded no contest, and the trial court found her guilty. Id. at ¶ 3-4. The defendant challenged the trial court’s denial of her motion to suppress the results of the urine test on appeal. Id. at ¶ 5. In a per curium decision with three separate opinions, including a dissent, this Court reversed and remanded the matter. Id. at ¶ 6. That decision does not provide authoritative precedent on the matter now before this Court, which is procedurally distinct. 13

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

Court, County of Summit, 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.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

SCHAFER, J. TEODOSIO, J. CONCUR.

APPEARANCES:

PATRICK D. QUINN and RONALD A. ANNOTICO, Attorneys at Law, for Appellant.

EVE V. BELFANCE, Director of Law, and BRIAN D. BREMER, Assistant Director of Law, for Appellee.