State v. Lominack, 2013 Ohio 2678

Background

Around 12:15 a.m., Trooper Halstead observed a Nissan Maxima weaving within its lane, drive over lane/edge markings and through a gore, then cross three lanes without signaling and stop on the berm; cruiser video corroborated the observations.
On contact, officer detected glossy eyes and a slight odor of alcohol; defendant admitted drinking and gave incorrect directions about his destination.
Trooper administered HGN, One-Leg Stand, and Walk-and-Turn; a portable breath test read .078. Defendant was arrested and later submitted to an evidential breath test showing .085.
Defendant was charged with OVI per se (prohibited level), OVI under the influence, and marked lanes; jury convicted on OVI per se and marked lanes, acquitted on OVI under the influence.
Defendant moved to suppress and sought to present expert testimony on breath-test variability and challenge FST/HGN administration; trial court denied suppression and limited expert testimony/proffers.
Trial court sentenced defendant (jail term largely suspended, fines, license suspension); appeal challenges suppression denial, marked-lanes conviction, and exclusion/limitation of expert and HGN-challenge evidence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of traffic stop (marked-lanes observation)	Officer had reasonable, articulable suspicion based on weaving and crossing lane/edge markings	Crossing/edge contact not enough to justify stop; need evidence of unsafe movement	Stop was valid; officer observed drifting over lane markings and gore, supported by video; reasonable suspicion upheld
Probable cause to arrest and admissibility of FST/HGN	Totality (glossy eyes, odor, admission, PBT .078, erratic driving, FST indicators) provided probable cause; HGN admissible if substantial compliance	HGN not in substantial compliance with NHTSA timing; FSTs unreliable; insufficient probable cause	Probable cause existed even without HGN; HGN admission (even if questionable) was harmless for per se conviction; HGN admissible under Boczar standards when in substantial compliance
20‑minute observation and mouth contamination before BAC test	Officer observed and asked to remove tobacco; no evidence of ingestion during observation; testing procedure followed	Residual tobacco could have invalidated evidential BAC (.085) absent proven full expulsion or continuous observation	Defendant offered only speculative ingestion; failure to prove contamination means BAC admissible under Steele rationale
Exclusion/limitation of defense expert and proffer on Datamaster variance	State demonstrated instrument/substantial compliance; expert testimony on margin/variance unnecessary and precluded by prior rulings	Defendant entitled to depose and present expert (Staubus) to challenge machine variability and need for repeat test when marginally over limit	Trial court did not abuse discretion denying deposition/limiting testimony; any error was harmless because case resolved on instrument accuracy and jury acquitted on influence charge

Key Cases Cited

State v. Burnside, 100 Ohio St.3d 152 (Ohio 2003) (standard of review for suppression: trial court factual findings get deference; legal application reviewed de novo)
State v. Mays, 119 Ohio St.3d 406 (Ohio 2008) (drifting across lines supplies reasonable, articulable suspicion for traffic stop)
State v. Boczar, 113 Ohio St.3d 148 (Ohio 2007) (HGN admissible without expert if officer's training and substantial compliance shown)
State v. Homan, 89 Ohio St.3d 421 (Ohio 2000) (probable cause may rest on totality: red/glassy eyes, odor, erratic driving, admission)
State v. Lucas, 40 Ohio St.3d 100 (Ohio 1988) (per se OVI focuses on chemical test accuracy rather than impairment)
State v. Steele, 52 Ohio St.2d 187 (Ohio 1977) (purpose of 20‑minute observation is to ensure deep‑lung breath and exclude oral contaminants)
Ornelas v. United States, 517 U.S. 690 (U.S. 1996) (review of application of law to suppression hearing facts is de novo)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (sufficiency standard: whether any rational trier of fact could find guilt beyond reasonable doubt)
State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (manifest‑weight standard and when appellate court may overturn verdict)