State v. Bruck

2021 Ohio 2789

• Court: Ohio Court of Appeals
• Decided: August 13, 2021
• Docket: WD-20-072
• Status: Published

Opinion

[Cite as State v. Bruck, 2021-Ohio-2789.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio/City of Bowling Green Court of Appeals No. WD-20-072

Appellee Trial Court No. 20TRC02309

v.

Andrey B. Bruck DECISION AND JUDGMENT

Appellant Decided: August 13, 2021

*****

Hunter Brown, Bowling Green City Prosecutor, for appellee.

W. Alex Smith, for appellant.

PIETRYKOWSKI, J.

{¶ 1} This is an appeal from the judgment of the Bowling Green Municipal Court,

convicting appellant, Andrey Bruck, of one count of driving while under the influence of

alcohol or drugs in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree.

For the reasons that follow, we affirm. I. Facts and Procedural Background

{¶ 2} On June 8, 2020, appellant was charged with one count of driving while

under the influence of alcohol or drugs.1 Appellant entered an initial plea of not guilty.

On August 21, 2020, appellant filed a motion to suppress.

{¶ 3} A suppression hearing was held on October 5, 2020, at which the state called

Ohio State Highway Patrol Trooper Chris Kiefer as a witness. Kiefer testified that on

Saturday, June 6, 2020, at approximately 1:30 a.m., he was standing by the gas pump at

the patrol post when he observed a car turn around in the middle of the road, possibly

flash its bright lights in Kiefer’s direction, honk its horn, back up in the road, and run a

stop sign to make a turn onto State Route 582. Kiefer pursued the car, and initiated a

traffic stop.

{¶ 4} During the traffic stop, Kiefer detected a strong odor of alcohol coming from

the vehicle, but he could not determine if it was coming from appellant or from the

passenger. As he was speaking with appellant, Kiefer noticed that appellant’s eyes were

bloodshot and glassy, and that his speech was slightly slurred and lethargic. Notably,

Kiefer’s report did not include the fact that appellant’s eyes were bloodshot and glassy.

Kiefer then asked appellant to exit the vehicle and perform field sobriety tests.

{¶ 5} Kiefer testified that he first conducted the horizontal gaze nystagmus test,

during which he again noticed that appellant’s eyes were glassy and bloodshot. Kiefer

1 Appellant was also charged with violations of R.C. 4511.19(A)(1)(d) and 4511.43, but those charges were dismissed at sentencing pursuant to a plea agreement.

2. also observed six out of six clues that appellant was impaired. On cross-examination,

Kiefer testified that he checked for equal tracking and equal pupil size. Kiefer later

clarified that although his report does not indicate that he checked for equal tracking and

equal pupil size, he looked for those indicators during his analysis of whether appellant’s

eyes lacked smooth pursuit.

{¶ 6} Kiefer then conducted the walk and turn test, during which he observed three

out of nine clues that appellant was impaired. Kiefer testified on cross-examination that

four out of nine clues demonstrates that a person is impaired, but that the presence of

three clues can show impairment.

{¶ 7} Kiefer also conducted the one-legged stand test. Kiefer observed two clues

that appellant was impaired; specifically that appellant raised his arms for balance and

swayed side to side.

{¶ 8} Finally, Kiefer conducted a non-standardized alphabet test, in which he

directed appellant to say the alphabet from “C” to “X.” Kiefer testified that appellant

failed to recite the letters “S,” “T,” “U,” “V,” and “W.” Following the field tests, Kiefer

placed appellant under arrest for operating a vehicle under the influence.

{¶ 9} Following the hearing, the trial court denied appellant’s motion to suppress.

The trial court reasoned that the “interesting” driving actions of appellant, along with

appellant running the stop sign, gave Kiefer probable cause to initiate the traffic stop.

The court further reasoned that the driving actions, along with the strong odor of alcohol,

3. glassy and bloodshot eyes, slightly slurred speech, and the clues on the field sobriety

tests, gave Kiefer probable cause to arrest.

{¶ 10} Upon the trial court’s denial of his motion to suppress, appellant agreed to

plead no contest to the charge of driving while under the influence of alcohol or drugs.

The trial court accepted appellant’s plea, found him guilty, and sentenced him to 33 days

in jail, with 30 of those days suspended. The court ordered that the other three days

could be served at a driver intervention program. The trial court also imposed a $1,075

fine, with $475 suspended. Appellant was also placed on two years of community

control, and received a mandatory one-year driver’s license suspension. The trial court

stayed all of the sanctions pending appeal, except for the driver’s license suspension.

II. Assignment of Error

{¶ 11} Appellant has timely appealed his judgment of conviction, and now asserts

one assignment of error for our review:

1. The court erred by denying the motion to suppress.

III. Analysis

{¶ 12} Review of a trial court's grant or denial of a motion to suppress presents

mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, 797 N.E.2d 71, ¶ 8. An appellate court defers to a trial court's factual findings

made with respect to its ruling on a motion to suppress where the findings are supported

by competent, credible evidence. Id.; State v. Brooks, 75 Ohio St.3d 148, 154, 661

4. N.E.2d 1030 (1996). “[T]he appellate court must then independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the applicable legal

standard.” Burnside at ¶ 8, citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d

539 (4th Dist.1997).

{¶ 13} In support of his assignment of error, appellant first argues that Kiefer

lacked reasonable suspicion to administer the field sobriety tests. “[A] request that a

driver perform field sobriety tests must be separately justified by specific, articulable

facts showing a reasonable basis for the request.” (Internal quotations omitted.) State v.

Watkins, 2021-Ohio-1443, 170 N.E.3d 549, ¶ 25 (6th Dist.), quoting State v. Trevarthen,

11th Dist. Lake No. 2010-L-046, 2011-Ohio-1013, ¶ 15; State v. Evans, 127 Ohio App.3d

56, 63, 711 N.E.2d 761 (11th Dist.1998). “Whether a request to perform field sobriety

tests was reasonable is to be considered under the totality of the circumstances.” Id.

{¶ 14} Appellant contends that the present case is similar to State v. Stricklin, 6th

Dist. Lucas No. L-10-1277, 2012-Ohio-1877, in which we held that the officer lacked

reasonable suspicion to conduct field sobriety tests. In that case, Stricklin was pulled

over for only having one lighted headlight. Id. at ¶ 3. During the officer’s conversation

with Stricklin, the officer observed a “slight odor” of alcohol on Stricklin’s breath, and

noticed that he had bloodshot, glassy eyes. Id. at ¶ 4. The officer also testified that

Stricklin appeared “anxious.” Id. Stricklin denied having consumed any alcohol or

5. illegal drugs. Id. When the officer ran Stricklin’s license, she discovered that he had a

prior OVI conviction from four years earlier. Id.

{¶ 15} On appeal, we held that the trial court erred in denying Sricklin’s motion to

suppress. We reasoned that Stricklin had not demonstrated any erratic driving or

exhibited any other behaviors which would indicate that he was intoxicated, and that the

only valid factors which formed the basis of the officer’s decision to conduct field

sobriety tests were a slight odor of alcohol and glassy, bloodshot eyes. Thus, we held

that under the facts of that case, those factors alone “did not provide a reasonable

articulable suspicion to warrant the administration of field sobriety tests.” Id. at ¶ 15.

{¶ 16} Recently, this court again held that an officer lacked reasonable suspicion

to conduct field sobriety tests. In Watkins at ¶ 37, this court held that reasonable

suspicion was not present where Watkins entered the Ohio State Highway Patrol post to

pick up her friend, and where Watkins did not stumble or slur her words, her eyes “were

bloodshot and glassy (at approximately 3:00 a.m.), she smelled of alcohol (of an

unspecified strength), and she admitted to having had one glass of wine (approximately

seven hours earlier).”

{¶ 17} Here, however, there are several factors that meaningfully distinguish the

present case from Stricklin and Watkins. First, and perhaps most importantly, appellant

was observed driving in an “interesting” manner immediately prior to the stop. Appellant

turned his car around in the middle of the road, flashed his bright lights in Kiefer’s

6. direction, honked his horn, backed up in the roadway, and left in the opposite direction,

running a stop sign to turn onto State Route 582. Second, Kiefer testified that he noticed

a “strong” odor of alcohol, as opposed to the “slight” odor in Stricklin. Finally, Kiefer

testified that appellant’s speech was slightly slurred and lethargic, which we specifically

noticed was absent in Watkins. These factors, in conjunction with the time of the incident

being in the early morning hours on a Saturday, lead us to conclude that under the totality

of the circumstances Kiefer had reasonable suspicion to conduct the field sobriety tests.

{¶ 18} Appellant next argues that the field sobriety tests were not conducted in

accordance with the National Highway Traffic Safety Administration (“NHTSA”)

handbook. “[T]he results of the field sobriety tests are not admissible at trial unless the

state shows by clear and convincing evidence that the officer administered the test in

substantial compliance with NHTSA guidelines.” State v. Codeluppi, 139 Ohio St.3d

165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 11, citing R.C. 4511.19(D)(4)(b). Generally, the

results of field sobriety tests are admissible “so long as the proper foundation has been

laid as to both the administering officer’s training and ability to administer the tests and

the actual technique he or she used to administer the tests.” State v. Boles, 2020-Ohio-

4485, 158 N.E.3d 1013, ¶ 15 (2d Dist.), citing State v. Boczar, 113 Ohio St.3d 148, 2007-

Ohio-1251, 863 N.E.2d 155, ¶ 28. “Accordingly, the State’s burden of proof regarding

the admissibility of field sobriety test results ‘is not an onerous one’; ‘general testimony

that all pertinent rules and regulations had been followed in conducting the defendant’s

7. test, if unchallenged, would amount to a sufficient foundation for the admission of the

results.’” Id., quoting State v. Murray, 2d Dist. Greene No. 2002-CA-10, 2002-Ohio-

4809, ¶ 11. “For example, testimony by the officer that he or she had been trained to

perform the HGN test under NHTSA standards, and that the test was performed in the

manner in which the officer had been trained, would suffice for admission of the field

sobriety test results, absent a challenge to some specific way the officer failed to comply

with NHTSA standards.” Id., quoting State v. Reynolds, 2d Dist. Greene No. 2012-CA-

64, 2014-Ohio-3642, ¶ 27.

{¶ 19} Here, Kiefer testified that he had been trained on how to conduct field

sobriety tests in accordance with the NHTSA manual. Kiefer further briefly described

the field sobriety tests, and testified that they were conducted in compliance with NHTSA

standards.

{¶ 20} At the suppression hearing, and on appeal, appellant argued that Kiefer did

not conduct the horizontal gaze nystagmus test in accordance with NHTSA procedures in

two ways. First, appellant states—without any citation to authority—that the NHTSA

manual forbids the shining of lights in the subject’s eyes. Thus, because Kiefer used a

flashlight while he was conducting the test, appellant concludes that Kiefer violated

NHTSA standards.

{¶ 21} Upon review, we do not find that appellant has satisfied his burden to

impeach Kiefer’s testimony that he conducted the horizontal gaze nystagmus test in

8. compliance with NHTSA standards. On this issue, Kiefer testified that his emergency

lights and spotlight were turned off, and that he only used his flashlight because it was

dark and he needed some sort of light to be able to accurately observe appellant’s eyes.

We hold that appellant’s unsupported assertion that an officer may not even use a

flashlight at night when conducting the horizontal gaze nystagmus test, without more, is

insufficient to call into question Kiefer’s testimony that the test was done in compliance

with the NHTSA manual.

{¶ 22} Appellant’s second argument regarding Kiefer’s execution of the horizontal

gaze nystagmus test is that Kiefer did not check for equal tracking or equal pupil size.

However, contrary to appellant’s assertion, Kiefer clarified that he looked for those

indicators during his analysis of whether appellant’s eyes lacked smooth pursuit.

Therefore, we hold that clear and convincing evidence exists that the field sobriety tests

were conducted in substantial compliance with NHTSA guidelines, and thus the results of

those tests should not be excluded.

{¶ 23} Finally, appellant briefly argues that Kiefer lacked probable cause to arrest

him because there were only three of the nine indicators present in the walk and turn test,

when four indicators are needed to demonstrate impairment. “The legal standard for

determining whether the police had probable cause to arrest an individual for OVI is

whether, at the moment of arrest, the police had sufficient information, derived from a

reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent

9. person to believe that the suspect was driving under the influence.” State v. Groszewski,

183 Ohio App.3d 718, 2009-Ohio-4062, 918 N.E.2d 547, ¶ 22 (6th Dist.). When

determining probable cause, the court must examine the totality of facts and

circumstances surrounding the arrest. Id., citing State v. Miller, 117 Ohio App.3d 750,

761, 691 N.E.2d 703 (11th Dist.1997).

{¶ 24} Here, the facts and circumstances reveal that in the early morning hours on

a weekend, appellant drove his vehicle in an abnormal fashion and ran a stop sign. When

appellant was pulled over, there was a strong odor of alcohol coming from the car,

appellant had glassy and bloodshot eyes, and his speech was slightly slurred and

lethargic. The trooper then conducted field sobriety tests and observed six out of six

indicators on the horizontal gaze nystagmus test, three out of nine indicators on the walk

and turn test, and two out of five indicators on the one-legged stand test. Finally,

appellant was unable to repeat the alphabet from “C” to “X,” in that he skipped the letters

“S,” “T,” “U,” “V,” and “W.” From these facts, we hold that probable cause existed to

believe that appellant was driving under the influence.

{¶ 25} Accordingly, the trial court did not err when it denied appellant’s motion to

suppress, and appellant’s assignment of error is not well-taken.

10. IV. Conclusion

{¶ 26} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and 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 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, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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