Court of Appeals of Ohio, Fifth District, Licking
Criminal Appeal from the Municipal Court Case No. 18 TRC
Plaintiff-Appellee TRICIA M. MOORE ASSISTANT LAW DIRECTOR
Defendant-Appellant KEVIN J. GALL
JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon.
Patricia A. Delaney, J.
Appellant Jared A. Nethers appeals his OMVI conviction (based
on a prohibited concentration of a drug of abuse), following
a no contest plea, in the Licking County Municipal Court. The
Appellee is the State of Ohio. The relevant facts leading to
this appeal are as follows.
On the evening of January 15, 2018, Trooper Jordan Daniel of
the Ohio State Highway Patrol was driving in his marked
cruiser on State Route 657 in Burlington Township, Licking
County. The area roads on that date were snow-covered.
Shortly before 7:00 PM, the trooper saw a 1997 Chevrolet SUV
in a roadside ditch and stopped to assist. He thereupon made
contact with Appellant Nethers, whom he identified as the
driver of the vehicle. Appellant had his fourteen-year-old
daughter with him.
Trooper Daniel later testified that he observed an odor of
alcohol on appellant's breath as he spoke with him. He
also observed appellant's eyes to be "glassy"
and bloodshot. Supp. Tr. at 12. When asked, appellant
admitted to having had one beer after work that day. Due to
these observations, Trooper Daniels requested that appellant
submit to field sobriety tests.
The first one administered was the horizontal gaze nystagmus
("HGN") test. Trooper Daniel recalled inter
alia that "[d]uring the HGN [appellant] had to be
instructed several times on how to follow my finger."
Tr. at 29. The trooper concluded that appellant exhibited
four out of six possible clues on this test. Tr. at 17.
Due to the snowy road conditions, Trooper Daniels did not
administer the walk and turn or the one-leg stand test.
Instead, he administered two additional, non-standardized
tests: the "alphabet" test and the "flat
finger dexterity" test, as further discussed
infra. The trooper noted that these types of tests
provide insight into a driver's ability to handle tasks
under conditions of divided attention. Tr. at 23-24.
Based on his overall observations and appellant's
performance of the aforesaid three tests, the trooper placed
appellant under arrest for operating a vehicle while under
the influence of alcohol and/or a drug of abuse
On January 17, 2018, appellant was charged (trial court case
number 18-TRC-00630) with OMVI, in violation of R.C.
On February 22, 2018, appellant filed a motion for leave to
file an untimely motion to suppress evidence under
18-TRC-00630. The trial court thereafter granted the request
for leave to file.
On April 3, 2018, appellant was additionally charged (trial
court case number 18-TRC-04238) with OMVI (based on an
allegation of a prohibited concentration of a drug ...