{¶ 2} On December 18, 2005, shortly before 9:00 a.m., an Ohio Highway Patrol Trooper stopped a car driven by appellant, Nolan K. Masters, for driving 83 m.p.h. on *2 Interstate 75 near Bowling Green, Ohio. Upon approaching the car, the trooper later testified that he noted a moderate odor of an alcoholic beverage coming from inside the vehicle and observed that appellant's eyes were bloodshot and glassy.
{¶ 3} The trooper administered a series of field sobriety tests upon appellant, beginning with a horizontal gaze nystagmus test, upon which appellant scored four of six indicators. On the walk and turn test, the trooper observed one of nine indicators and two "clues" on the one-leg stand.
{¶ 4} The trooper testified that the gaze nystagmus test measured involuntary eye movements present when alcohol has been consumed. The remaining tests are designed to measure the types of tasks necessary to operate a motor vehicle. According to the trooper, appellant failed the nystagmus test by one indicator and passed the other two exercises. Nevertheless, when a portable breath testing device registered a .087 percent alcohol concentration for 210 liters of breath, above the .080 percent statutory threshold concentration, the trooper arrested appellant and transported him to the Bowling Green Police Department. At the Bowling Green Police Department, appellant registered a .081 percent concentration on the department's BAC DataMaster machine.
{¶ 5} Appellant was charged with speeding, operating a motor vehicle while under the influence of alcohol in violation of R.C.
{¶ 6} When the trial court denied appellant's motion to suppress the results of the horizontal gaze nystagmus and his breath test, the matter moved to trial before a jury. The jury acquitted appellant of operating under the influence, but convicted him of a prohibited alcohol content violation. The trial court entered judgment on the verdict, imposing a fine, costs and one-year term of jail time. The court also placed appellant under community control for five years and revoked his driving privileges for ten years.
{¶ 7} From this judgment, appellant now brings this appeal. Appellant sets forth the following five assignments of error:
{¶ 8} "I. The Trial Court erred in denying Appellant's Motion to Suppress when the investigating Officer lacked reasonable cause to arrest Appellant for Driving under the Influence of Alcohol.
{¶ 9} "II. The Trial Court erred to the prejudice of Appellant by denying his Motion for Acquittal, as the evidence presented by the State was insufficient to sustain a conviction for the offense of Driving Under the Influence of Alcohol in violation of O.R.C. §
{¶ 10} "III. The Trial Court erred to the prejudice of Appellant by denying his Motion for Acquittal, as the evidence presented by the State was insufficient to sustain a conviction for the offense of Driving with a Prohibited Blood Alcohol Concentration of .081 in violation of O.R.C. § 4519.19(A)(1)(d).
{¶ 11} "IV. The jury erred by finding Appellant guilty of the offense of Driving with a Prohibited Blood Alcohol concentration of 081 [sic] in violation of O.R.C. ¶ *4 4511.19 (A)(1)(d) when the evidence presented by the State was insufficient to support said finding.
{¶ 12} "V. The jury erred by finding Appellant guilty of the offense of driving with a Prohibited Blood Alcohol Concentration of .081 in violation of O.R.C. §
{¶ 14} An appellate court's review of a ruling on a motion to suppress evidence presents a mixed question of law and fact. State v. Long
(1998),
{¶ 15} Probable cause is "* * * defined in terms of facts and circumstances `sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.'" Gerstein v.Pugh (1975),
{¶ 16} The trooper stopped appellant for speeding. At the suppression hearing he testified that, in his experience, alcohol impaired drivers frequently drive too fast or too slow. The officer observed that appellant's eyes were glassy and bloodshot and detected a moderate odor of an alcoholic beverage on appellant's person. Even though appellant performed well on the walk and turn and one foot standing tests, he displayed four of six indicators on his horizontal gaze nystagmus test, a failing performance. Moreover, although a portable breath test may not be accurate enough for a per se violation as under R.C.
{¶ 17} Consequently, the trial court did not err in denying appellant's motion to suppress and appellant's first assignment of error is not well-taken.
{¶ 19} Since the jury acquitted appellant of violating R.C.
{¶ 21} A motion for a judgment of acquittal, pursuant to Crim.R. 29, is judged by the same standard as for whether a verdict is supported by sufficient evidence. State v. Tenace,
{¶ 22} Pursuant to R.C.
{¶ 23} Appellant registered a .081 on his breath test. At trial, the state presented extensive testimony as to the operation of the BAC DataMaster, its accuracy and the factors that affect verification of its accuracy. The senior operator for the Bowling Green *8 Police testified that the machine in question had a margin of error of .003. On cross examination, appellant's counsel asked:
{¶ 24} "Q Okay. So if I am correct that means that if you blow a .081 what we really know is that at the low end you were .078, at the high end you were .084?
{¶ 25} "A That is correct.
{¶ 26} "Q Okay. And obviously you know that the printouts [sic] said .081?
{¶ 27} "A Correct.
{¶ 28} "Q But you don't actually know whether he was .078 — 78, 80, 83 or 84?
{¶ 29} "A That is correct."
{¶ 30} This testimony, appellant submits, clearly establishes that the state cannot show an over limits test as a matter of law. Moreover, even if the test results are sufficient to be submitted to the jury, since appellant registered only .001 above the acceptable limit, no reasonable trier of fact could have concluded this element proven beyond a reasonable doubt given the testimony on error margins.
{¶ 31} We should first correct one misconception. The statute makes unlawful a breath alcohol concentration of .080 "or more." As a result, the maximum acceptable concentration is .079.
{¶ 32} With respect to the admissibility of appellant's test, appellant makes no argument that the maintenance and performance verification of this machine were in any way noncompliant with the rules established by the Ohio Department of Health. Absent some deviation from those rules, the results of appellant's test are admissible,Cincinnati *9 v. Sand (1975),
{¶ 33} Concerning the weight of this evidence, the jury heard extensive testimony as to the possible deviations which might be inherent in the machine and found that the state had proven its case. It is not required that the trier of fact resolve all doubt. As we regularly tell our jurors: "* * * Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. `Proof beyond a reasonable doubt' is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his own affairs." R.C.
{¶ 34} Accordingly, appellant's remaining assignments of error are found not well-taken.
{¶ 35} On consideration whereof, the judgment of the Bowling Green Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Wood County.
*10JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, P.J., Arlene Singer, J., Thomas J. Osowik, J. CONCUR. *1