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State v. Raybould

Court of Appeals of Ohio, Eleventh District, Portage

July 29, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DAVID J. RAYBOULD, Defendant-Appellant.

          Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. 2017 TRC 14950 R.

          Victor V. Vigluicci, Portage County Prosecutor, Pamela J. Holder, Assistant Prosecutor, and John Jared Smiley, Assistant Prosecutor, (For Plaintiff-Appellee).

          Kevin J. Breen, Kevin J. Breen Co., LLC, (For Defendant-Appellant).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellant, David J. Raybould, appeals his conviction for operating a vehicle under the influence. We affirm.

         {¶2} Raybould was charged with speeding and operating a motor vehicle under the influence in violation of R.C. 4511.19(A)(1)(a) and (A)(1)(d). He initially pleaded not guilty and moved the court to suppress. The trial court overruled his motion, and Raybould pleaded no contest to OVI in violation of R.C. 4511.19(A)(1)(a), driving under the influence, with the remaining charges dismissed. The trial court stayed his sentence pending appeal.

         {¶3} Raybould raises two assigned errors:

         {¶4} "[1.] The trial court erred in its August 31, 2018 judgment entry denying defendant's motion to suppress evidence.

         {¶5} "[2.] The trial court erred in excluding from evidence the results of the portable breath test ('PBT) registering a BAC of 0.074."

         {¶6} Raybould's first assigned error consists of two arguments. Raybould first argues that the trooper improperly administered the field sobriety tests, and consequently, the results should have been suppressed.

         {¶7} "'Appellate review of a motion to suppress presents a mixed question of law and fact. 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. * * * Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. * * * 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." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

         {¶8} To admit field sobriety test results, the state must show that the police administered the test in substantial compliance with standardized testing procedures. Strongsville v. Troutman, 8th Dist. Cuyahoga No. 88218, 2007-Ohio-1310, at ¶ 22, citing R.C. 4511.19.

         {¶9} Only general testimony is required to establish substantial compliance with field sobriety tests unless a defendant raises a specific and particular challenge to a test. State v. Bish, 7th Dist. No. Mahoning 09 MA 145, 191 Ohio App.3d 661, 2010-Ohio-6604, 947 N.E.2d 257, ¶ 16. When presented with a specific challenge as grounds for suppression, the burden shifts to the state to prove substantial compliance. Id; State v. Holzapfel, 2nd Dist. Darke No. 2013-CA-17, 2014-Ohio-4251, ¶ 11. And if there is insufficient evidence to support that a test was performed in substantial compliance with the applicable standards, suppression is warranted. Id. at ¶ 17.

         {¶10} Here, Ohio Highway Patrol Trooper Loren Joshua Lee administered the field sobriety tests in a lighted school parking lot. On direct examination, Lee explained his training on the National Highway Traffic Safety Administration (NHTSA) manual and explained the procedure for each test that he administered to Raybould. He explained how Raybould performed on each. The state introduced the NHTSA manual as an ...


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