Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeal from the Portage County Municipal Court,
Ravenna Division, Case No. 2017 TRC 14950 R.
V. Vigluicci, Portage County Prosecutor, Pamela J. Holder,
Assistant Prosecutor, and John Jared Smiley, Assistant
Prosecutor, (For Plaintiff-Appellee).
J. Breen, Kevin J. Breen Co., LLC, (For Defendant-Appellant).
R. WRIGHT, P.J.
Appellant, David J. Raybould, appeals his conviction for
operating a vehicle under the influence. We affirm.
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.
Raybould raises two assigned errors:
"[1.] The trial court erred in its August 31, 2018
judgment entry denying defendant's motion to suppress
"[2.] The trial court erred in excluding from evidence
the results of the portable breath test ('PBT)
registering a BAC of 0.074."
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.
"'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.
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.
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 ¶
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 ...