STATE OF OHIO v. JERRY NETHERS
Case No. 12-CA-30
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
November 5, 2012
2012-Ohio-5198
Hon. W. Scott Gwin, P.J.; Hon. William B. Hoffman, J.; Hon. Sheila G. Farmer, J.
CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 2011-TRC-09446; JUDGMENT: Affirmed
For Defendant-Appellant: ROBERT E. CALESARIC, 35 South Park Place, Suite 150, Newark, Ohio 43055
For Plaintiff-Appellee: MARK D. GARDNER, Hebron Prosecutor, 23 South Park Place, Ste. 208, Newark, Ohio 43055
{¶1} Defendant-appellant Jerry Nethers appeals the February 21, 2012 Judgment Entry entered by the Licking County Municipal Court. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 29, 2011, Appellant was stopped in his motor vehicle for committing a marked lanes violation. Upon approaching Appellant, the arresting officer noticed an odor of alcohol on Appellant. When asked, Appellant admitted to consuming two glasses of wine prior to driving. The officer also noticed Appellant had blood shot eyes, and had difficulty retrieving his identification and insurance documentation.
{¶3} Due to his observations, the officer requested Appellant to perform field sobriety tests. Due to a recent hip injury, Appellant performed a non-standardized procedure in which he touched his fingers to his thumb one way, then the other. Appellant could not perform the test to the officer‘s satisfaction. As a result, the officer asked Appellant if he would agree to a breath test. Appellant consented, and was transported to the Hebron Police Department. At the police department, Appellant tested a .126 on the BAC DataMaster.
{¶4} On October 13, 2011, Appellant filed a motion to suppress the field sobriety tests, his arrest for lack of probable cause, and the BAC DataMaster results. The trial court excluded the field sobriety tests because the State failed to establish the testing standard and because the officer had not administered the tests in substantial compliance with the NHTSA manual.
{¶6} On March 14, 2012, Appellant entered pleas of no contest to the charges of operating a vehicle while under the influence, in violation of
{¶7} Appellant now appeals, assigning as error:
{¶8} “I. APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT OFFICER MARTIN HAD PROBABLE CAUSE TO ARREST APPELLANT.
{¶9} “II. APPELLEE DID NOT MEET ITS BURDEN AND ESTABLISH THAT THE BREATH MACHINE WAS IN SUBSTANTIAL COMPLIANCE.”
I, II.
{¶10} Appellant‘s assigned errors raise common and interrelated issues; therefore, we will address the arguments together.
{¶11} There are three methods of challenging a trial court‘s ruling on a motion to suppress on appeal. First, an appellant may challenge the trial court‘s finding of fact. In reviewing a challenge of this nature, an appellate court must determine whether the trial court‘s findings of fact are against the manifest weight of the evidence. See, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (1991). Second, an appellant may argue the trial court failed to apply
{¶12} Appellant maintains the trial court erred in denying his motion to suppress, and in finding the officer had probable cause to arrest him. Appellant further asserts the State failed to demonstrate substantial compliance with the ODH regulations governing the BAC DataMaster results. Appellant maintains the State failed to introduce evidence the officer checked and used the appropriate hand held radio or whether the solution utilized was refrigerated and stored properly. As a result, the State did not prove substantial compliance.
{¶13} Appellant further asserts the
{¶15} In this case, the trial court heard testimony from two Hebron police officers regarding the BAC DataMaster at issue. Evidence was presented to demonstrate the machine was calibrated prior to Appellant‘s test and after; the calibration solution was still within the required use period of time; the calibration solution was properly refrigerated when not in use; the solution had been certified for use by the Department of Health, no RFI was present at any time during the test; and the officers both held valid Senior Officer permits.
{¶16} In addition, Appellant admitted to the lane violation, but claims mistake as the road had recently changed. When evaluating probable cause to arrest for OVI, the totality of the facts and circumstances can support a finding of probable cause to arrest even when no field sobriety tests are administered. In this matter, the record demonstrates Appellant, a seventy-one year old male, admitted to consuming two glasses of wine prior to driving. The officer detected an odor of alcohol on Appellant, observed bloodshot eyes, and Appellant had difficulty finding the requested identification. The BAC DataMaster results demonstrate Appellant was over the legal limit. Considering the totality of the circumstances, we find the trial court did not err in
{¶17} Appellant‘s assigned errors are overruled.
{¶18} The judgment of the Licking County Municipal Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin
HON. W. SCOTT GWIN
s/ Sheila G. Farmer
HON. SHEILA G. FARMER
STATE OF OHIO v. JERRY NETHERS
Case No. 12-CA-30
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Opinion, the judgment of the Licking County Municipal Court is affirmed. Costs to Appellant.
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin
HON. W. SCOTT GWIN
s/ Sheila G. Farmer
HON. SHEILA G. FARMER