{1} The opinion filed in this case on November 1, 2007, is withdrawn and the following opinion is substituted in its place.
{2} Defendant Ivan Granillo-Macias, Jr. was convicted of driving while intoxicated (DWI) in a metropolitan court bench trial. In an on-the-record appeal from the trial court conviction, the district court affirmed. On appeal to this Court, Defendant asserts that (1) there was insufficient probable cause to arrest him, (2) the metropolitan court (the trial court) erred in admitting the breath test results, (3) he was denied his confrontation right, and (4) if admission of the breath test results was not prejudicial or was harmless error, the evidence was insufficient to prove impairment beyond a reasonable doubt. We affirm.
BACKGROUND
{3} Defendant was stopped at a sobriety checkpoint around 2:40 a.m. The officer smelled an odor of alcohol that appeared to be coming from Defendant. According to the officer, Defendant was fumbling; was slow to respond to the officer’s request that he exit the vehicle and held onto the door as he got out of the vehicle; and, as Defendant walked to the back of the vehicle, he kept his hand on it for balance. The officer administered four field sobriety tests (FSTs).
{4} The officer testified as follows regarding her observations of Defendant’s FST performance. Defendant failed to maintain his position once during the instruction phase of the walk-and-turn test. During the performance phase of the walk-and-turn test, Defendant missed putting his feet heel to toe by more than one inch on three of the first set of steps and once on his second set of steps. Early in the test, Defendant raised his arms a little over a forty-five degree angle and maintained them in that position until he turned, when he put them down, but toward the end of the second set of steps he put them back up again. He also stopped once during the test. While he took the correct number of steps, Defendant did not turn as instructed; instead, he left his front foot in place and took one large step to turn. During the one-leg-stand test, Defendant raised his arms and also swayed heavily. Further, throughout this test, the officer kept motioning to Defendant and telling him that he needed to raise his foot up higher, but he only raised it about one inch off the ground. During the finger-to-nose test, Defendant swayed, did not follow instructions, and missed touching his nose with the tip of his finger.
{5} Following these FSTs, the officer administered breath alcohol content (BAC) tests with an Intoxilyzer 5000 machine (the breath machine), resulting in BAC readings of 0.11 and 0.13. In regard to certification of the breath machine, the officer testified that based on her experience she thought the
DISCUSSION
Probable Cause to Arrest
{6} Defendant attacks the validity of his arrest, and asserts lack of probable cause and error in the court’s refusal to dismiss for lack of probable cause. He asserts that the officer did not have a reasonable belief, based on Defendant’s behavior, including his performance of the FSTs, that he was “too impaired to drive safely.” He also asserts that the tests were not administered or interpreted according to the standards of the National Highway Transportation Safety Administration (NHTSA), and that the FSTs were therefore not valid evidence of alcohol intoxication, particularly in subjects with leg injuries. He further asserts that admission of the officer’s testimony about his performance of the FSTs was error, because performance of FSTs does not constitute reliable evidence of impairment.
{7} “Whether probable cause exists is a mixed question of law and fact. We review legal conclusions de novo, but defer to the trial court’s findings of fact. Our review of factual determinations is limited to determining whether there was substantial evidence to justify a warrantless arrest.” State v. Jones,
{8} We review evidentiary rulings for abuse of discretion. State v. Woodward,
{9} An officer has probable cause to arrest when the facts and circumstances within the officer’s knowledge are sufficient to warrant the officer to believe that an offense has been or is being committed. State v. Sanchez,
{11} On appeal, Defendant does not show where he introduced any part of any NHTSA manual in evidence for the metropolitan court’s consideration. Defendant has not caused any part of any manual to be a part of the record on appeal. Further, Defendant relies solely on Ohio case law that has either been superseded by statute or that for the most part consists of unpublished opinions. See Gormley v. Coca-Cola Enters.,
{12} We hold that the smell of alcohol emanating from Defendant, Defendant’s lack of balance at the vehicle, and the manner of Defendant’s performance of the FSTs constituted sufficient circumstances to give the officer the requisite objectively reasonable belief that Defendant had been driving while intoxicated and to proceed with BAC tests, and thus constituted probable cause to arrest Defendant.
Admissibility of Breath Test Results
{13} Defendant challenges the admission of the breath test results from the breath machine. He contends that the officer’s testimony relating to the annual certification sticker was not sufficient foundation to permit admission in evidence of the breath test results. Defendant also contends that he was denied his Sixth Amendment confrontation right because the State failed to produce
{14} Among other statements regarding the breath machine, the officer testified that she was certified to use the machine, that she saw the certification sticker on the machine, that the machine was certified, and that “[t]he certification for the machine was adhered to it.” The court admitted the officer’s testimony about certification of the machine and admitted Defendant’s breath test results over Defendant’s objections.
{15} Defendant acknowledges that, as a certified operator of the breath machine, the officer was qualified to testify that the machine appeared to be working properly and that she saw the certificate on the machine. Defendant contends, however, that testimony that the machine is functioning mechanically is insufficient to show that it is functioning accurately. See State v. Rolison,
{16} Defendant also attacks admission of the breath test results on the ground that his Sixth Amendment confrontation right was violated, asserting that the court did not find that a witness knowledgeable about SLD certification was unavailable, and that he had no opportunity to confront and cross-examine such a witness. See U.S. Const. amends. VI, XIV; State v. Lopez,
{17} Thus, in short, Defendant attacks on evidentiary (foundation) and Sixth Amendment (confrontation) grounds the admission of the breath test results where the State offered solely the testimony of the officer that the breath machine was working properly and, based on her observation of a certificate, that the machine had been SLD certified. We first address Defendant’s lack of foundation contention that the breath test
The Foundation Issue — The Officer’s Hearsay Testimony
{18} The recent case of State v. Martinez,
{19} In arriving at its holding, the Court in Martinez said that in addressing foundational requirements, a trial court would not be bound by the rules of evidence, except those concerning privileges, and that the court could, therefore, consider hearsay. Id. ¶¶ 21, 23. At the same time, the Supreme Court stated that, although a trial court may be satisfied that the State met its foundational requirement through an officer’s testimony regarding the certificate, a defendant could still challenge the reliability, and thus the ultimate admission, of breath test results through discovery that would provide information which could critically challenge the officer’s foundational testimony concerning certification. Id. 1124. In Martinez, since the defendant made no attempt to challenge that reliability, the Court held that the trial court did not abuse its discretion in admitting the breath test results. Id.
{20} It is clear that the State must make a threshold showing that the breath machine was SLD certified and that the certification was current at the time the test was taken. See id. ¶ 12. In Martinez, the officer’s testimony was that he “saw a certification sticker on the breathalyser indicating that the machine’s certification was current.” Id. ¶¶ 1, 3. That was a sufficient threshold showing for admission of the breath test results. In the present case, the officer testified that, with respect to the breath machine she operated, she saw and checked the sticker on the machine. After a lack of foundation objection by defense counsel, the court made the following statement.
[W]e have here a system where the ... we take basically judicial ... knowledge of the fact that ... we have a Scientific Laboratory Division that maintains these machines and ... is supposed to do so in accordance with ... rules and regulations and so forth and that all this information is available [and] maintained for ... the perusal of defendants and their attorneys, and so in this manner, we hope to ... ensure the veracity of that sort of document. So, I’m satisfied at least unless something were to appear to the contrary that ... the officer testifies that it appears that machine had a certified ... certificate on it at the time, it was valid, and within the dates in question, that’s sufficient to establish I think a presumption that ... the machine was in fact operating correctly in absence of any evidence to the contrary.
The following exchange took place after the court’s statement. The prosecutor stated to the officer, “You had answered that the machine was certified.” The officer responded that “The certification for the machine was adhered to it.” Defendant made no further objection. We think the court could reasonably conclude that the officer testified to a current annual SLD certification. Based on Martinez, we hold that, in the present ease, the evidence presented by the State satisfied the foundational requirement for admission of the breath test results.
The Confrontation Issues
{21} Defendant argues that the trial court violated his right of confrontation on the issue of whether the breath test results
{22} In our view, Martinez controls this issue. Although the primary issue in Martinez was an evidentiary, non-constitutional issue, the defendant argued on appeal that his right to confront was violated “when he was not given the opportunity to cross-examine anyone who had ‘actual knowledge’ of the machine’s certification.” Id. ¶ 25. Considering this issue under the fundamental error doctrine because it was not preserved below, the Court in Martinez stated that “[t]he protections afforded by the Confrontation Clause do not extend to preliminary questions of fact.” Id. We consider this statement to be binding precedent. Thus, under Martinez, because Defendant seeks only to cross-examine on prehminary questions of fact, the Confrontation Clause offers Defendant no protection.
{23} We read Martinez to be saying that, in proving prehminary questions of fact, the State is not utilizing a witness “against” the defendant under the Sixth Amendment. See State v. Roybal,
Defendant’s Other Arguments
{24} Under the assumption that we would hold that the breath test results were erroneously admitted in evidence, Defendant asserts that admission of the breath test results was prejudicial and not harmless error. Alternatively, Defendant asserts that there was insufficient evidence to prove impairment beyond a reasonable doubt. Having concluded that the breath test results were properly admitted in evidence, we see no basis for Defendant’s arguments relating to prejudice and harmless error. Further, the evidence set out in the background and probable cause sections of this opinion was clearly sufficient to convict Defendant based on the breath test results and the other evidence indicating impairment. We, therefore, reject Defendant’s remaining arguments.
CONCLUSION
{25} We affirm the district court’s affirmance of Defendant’s metropolitan court conviction.
{26} IT IS SO ORDERED.