Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeals from the Willoughby Municipal Court, Case
Nos. 2018 TRC 00158 A, 2018 TRC 00158 B, and 2018 TRC 00158
J. Ezzone, Parkhill Professional Building, 35104 Euclid
Avenue, Willoughby, OH 44094 (For Plaintiff-Appellee).
Patrick D. Quinn, Quinn Legal Associates, OH 44094, and
Joseph Hada, Mayfield Heights, OH 44124 (For
JANE TRAPP, J.
Appellant, Christopher John Osborne ("Mr.
Osborne"), appeals the judgment of the Willoughby
Municipal Court denying his motion to suppress following his
pleas of no contest to and convictions for speeding and two
counts of operating a vehicle under the influence of alcohol
Mr. Osborne argues (1) the police officer did not have
reasonable suspicion to justify field sobriety tests, (2) the
City of Willowick (the "city") did not establish
that the officer administered field sobriety tests in
substantial compliance with National Highway Traffic Safety
Administration ("NHTSA") standards, (3) the officer
did not have probable cause to arrest Mr. Osborne for OVI,
and (4) the city did not demonstrate that the officer
administered a breath test in substantial compliance with the
Ohio Revised Code and the Ohio Administrative Code.
After a careful review of the record and pertinent law, we
find (1) the police officer's decision to conduct field
sobriety tests was justified by specific, articulable facts,
(2) any possible error in finding substantial compliance with
NHTSA standards was harmless, (3) the officer had probable
cause to arrest Mr. Osborne for OVI, (4) Mr. Osborne's
motion to suppress did not provide the city with adequate
notice of the issues in dispute in relation to the breath
test; and (5) with respect to Mr. Osborne's specific
challenges to the breath test, the city demonstrated
For the reasons that follow, we affirm the judgment of the
Willoughby Municipal Court.
and Procedural History
On January 11, 2018 at approximately 1:27 a.m., Officer Jacob
Cook ("Officer Cook") of the Willowick Police
Department observed Mr. Osborne's vehicle traveling
westbound on State Route 2 in the City of Willowick, Ohio, at
a rate of speed of 88 m.p.h. in a 60 m.p.h. zone. Officer
Cook initiated a traffic stop for the speeding violation, and
Mr. Osborne pulled over to the left side of the roadway
rather than the right side.
After approaching the driver's side window of the
vehicle, Officer Cook detected the odor of alcoholic beverage
and slightly slurred speech. Mr. Osborne admitted he had been
at the Handle Bar in the City of Eastlake where he drank at
least three Long Island Iced Teas. At some point, Officer
Cook also noticed that Mr. Osborne's eyes were bloodshot.
Officer Cook instructed Mr. Osborne to exit the vehicle so he
could conduct field sobriety tests. Officer Cook proceeded to
administer the horizontal gaze nystagmus ("HGN")
test, where he observed all six clues of impairment. He next
administered the one-leg stand, where he observed two clues
of impairment, although this did not constitute a failed
test. Finally, he administered the walk-and-turn, where he
observed six clues of impairment. Officer Cook placed Mr.
Osborne under arrest for OVI and took him to the police
At the police station, Mr. Osborne provided two breath
samples on the Intoxilyzer 8000 following the expiration of a
20-minute observation period. During the collection of both
samples, Officer Cook observed that Mr. Osborne's breath
alcohol concentration ("BAC") was measuring above
The printer attached to the Intoxilyzer failed to print the
test results immediately following the test. Therefore,
Officer Cook reported on the applicable state reporting form
(BMV-2255) that Mr. Osborne's BAC test result was 0.190.
After Mr. Osborne posted bond and was released, another
officer was able to retrieve a printout of the test results
from the Intoxilyzer's internal printer, which showed a
BAC of 0.201. Officer Cook crossed out ".190" on
the BMV-2255, wrote ".201," and initialed it.
Mr. Osborne was charged with OVI in violation of R.C.
4511.19(A)(1)(a), OVI in violation of R.C. 4511.19(A)(1)(h),
and speeding in violation of section 333.03 of the Codified
Ordinances of the City of Willowick. Mr. Osborne initially
pleaded not guilty.
After several continuances and a change of counsel, Mr.
Osborne filed a motion to suppress, alleging that the police
did not have reasonable suspicion to stop his vehicle,
unjustifiably expanded the scope of the stop to require field
sobriety tests, did not conduct the field sobriety tests in
compliance with the NHTSA rules and regulations, did not
administer the breath test in compliance with R.C. 4511.19
and Ohio Adm.Code Chapter 3701, and that the breath test was
inadmissible under Evid.R. 702.
At the hearing on the motion, Mr. Osborne waived his
challenge to the officer's initial stop of his vehicle.
Following the hearing, the trial court issued a judgment
entry denying Mr. Osborne's motion to suppress. The trial
court found that the initial traffic stop was justified based
on the officer's observation of the speed violation and
that the officer possessed reasonable and articulable
suspicion to continue the detention of Mr. Osborne and
require field sobriety testing based on the odor of alcohol,
slurred speech, the time of night, excessive speed, Mr.
Osborne's admission to consuming alcoholic beverages
prior to driving, and the officer's previous experience
in dealing with drunk drivers.
The trial court also found that the city established
substantial compliance regarding the field sobriety tests,
and they were admissible at trial as to the officer's
observations. The trial court noted that the tests were not
conclusive as evidence of impairment, since the one-leg stand
was not a failed test.
The trial court further found that probable cause existed for
Mr. Osborne's arrest based on his excessive speeding, the
odor of alcohol, admission of drinking alcoholic beverages,
observations during the field sobriety testing, and slurred
speech. With regard to the breath test, the trial court
referenced Mr. Osborne's "boilerplate" motion
to suppress but found that the city had met its burden of
Mr. Osborne subsequently entered pleas of no contest to the
three charges. As part of his sentence, the trial court
imposed three days in jail.
Mr. Osborne filed separate appeals for each of his three
convictions, which we consolidated, sua sponte. We also
granted Mr. Osborne's motion to stay execution of his
three-day jail sentence during the pendency of his appeal.
Mr. Osborne raises the following four assignments of error:
"[1.] The trial court erred in finding that reasonable
articulable suspicion existed for the officer to expand the
scope of the investigation.
"[2.] The trial court erred in finding that the city
proved that the officer administered the standardized field
sobriety tests in substantial compliance with the NHTSA
standards in effect at the time the tests were given pursuant
to R.C. 4511.19(D)(4)(b).
"[3.] The trial court erred in finding that the city
proved that the officer had probable cause to arrest the
defendant in light of the admiisble [sic] evidence.
"[4.] The trial court erred in finding that the city
proved the city showed substantial compliance with the Ohio
Revised Code and the Ohio Administrative Code for ...