Court of Appeals of Ohio, Fifth District, Ashland
from the Municipal Court of Ashland County, Case No. 17 TRC
Plaintiff-Appellee ANDREW N. Bush Assistant Law Director
Defendant-Appellant MATTHEW J. MALONE
JUDGES: Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
1} Defendant-appellant David S. Baker appeals the October 17,
2017 decision of the Ashland Municipal Court, Ashland County,
Ohio, overruling his motion to suppress. Plaintiff-appellee
is the state of Ohio.
AND PROCEDURAL HISTORY
2} On Saturday evening, June 17, 2017, at 11:20 p.m., Ohio
State Highway Patrol Trooper Paul Green observed appellant
operating his vehicle near West Fourth and Cottage Street in
the city of Ashland, Ohio. This intersection is in the
vicinity of several bars. Trooper Green noticed appellant was
traveling without an illuminated rear license plate and
initiated a traffic stop on that basis.
3} Trooper Green approached the vehicle, which contained
appellant and a passenger. He noted a strong odor of
alcoholic beverage emanating from the vehicle and further
noted that appellant's eyes were glassy, red, and
bloodshot. As he spoke with appellant, Trooper Green also
noted that appellant made deliberate effort to avoid looking
at him. Appellant denied consuming alcohol, but his passenger
admitted to consuming alcohol.
4} Trooper Green asked appellant to step out of the car. Once
out of the car, Trooper Green was able to confirm that
appellant had a strong odor of alcohol on his breath.
Appellant, however, denied consuming alcohol. Based on his
observations, Trooper Green asked appellant to preform field
5} Trooper Green began with the horizontal gaze nystagmus and
noted four of six clues. He noted four of eight clues on the
walk and turn and no clues on the one-leg stand. Trooper
Green placed appellant under arrest. Appellant refused a
portable breath test at the scene, but later submitted to a
DataMaster breath test and registered .128 breath alcohol
6} Appellant was cited for OVI and illumination of rear
plate. Appellant filed a motion to suppress, arguing Trooper
Green did not have reasonable suspicion to conduct field
sobriety testing, that the field sobriety testing was not
performed in compliance with the NHTSA manual, and that
Trooper Green lacked probable cause to arrest.
7} A hearing was held on the matter on July 10, 2017. Trooper
Green testified for the state. Appellant presented no
evidence. After taking the matter under advisement, the trial
court denied appellant's motion in part and granted it in
part. Specifically, the trial court found Trooper Green had
reasonable suspicion to request appellant preform field
sobriety tests, but that the walk and turn test was not
administered in substantial compliance with the NHTSA manual.
The trial court nonetheless found probable cause to arrest
appellant for OVI.
8} Appellant entered pleas of no contest. He was subsequently
sentenced to 30 days of local incarceration with 27 days
suspended, fines, one year community control, and one year
operator's license suspension. The trial court granted