[Cite as State v. Frazier, 2021-Ohio-2945.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
: STATE OF OHIO : : Appellate Case No. 28988 Plaintiff-Appellee : : Trial Court Case No. 2017-CR-3307 v. : : (Criminal Appeal from JUSTIN T. FRAZIER : Common Pleas Court) : Defendant-Appellant :
...........
OPINION
Rendered on the 27th day of August, 2021.
MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant
............. -2-
HALL, J.
{¶ 1} Justin T. Frazier appeals from his conviction following a no-contest plea to
one count of felony operating a vehicle while under the influence of alcohol and refusing
a breath test in violation of R.C. 4511.19(A)(2).
{¶ 2} In his sole assignment of error, Frazier challenges the trial court’s denial of
his motion to suppress field-sobriety test results. He argues that a trooper administering
the tests failed to conduct them in substantial compliance with National Highway Traffic
Safety Administration (NHTSA) standards.
{¶ 3} The record reflects that Ohio State Highway Patrol Trooper Eric Frost
initiated a traffic stop after Frazier made a wide left turn and changed lanes without
signaling. Upon approaching Frazier’s vehicle, Frost detected a strong odor of alcohol
and noticed signs of impairment. Frazier’s speech was slow and slurred. He also “fumbled
through his wallet” as if he lacked dexterity in his fingers. Frazier appeared to be
“struggling with normal movements.” He admitted to the trooper that he had consumed
some alcohol.
{¶ 4} Trooper Frost proceeded to have Frazier perform three field-sobriety tests:
the horizontal-gaze-nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand
test. Based on Frazier’s performance, Frost arrested him for operating a vehicle while
under the influence of alcohol. A grand jury subsequently indicted Frazier on two counts:
(1) operating a vehicle while under the influence of alcohol in violation of R.C.
4511.19(A)(1)(a); and (2) operating a vehicle while under the influence of alcohol and
refusing a breath test in violation of R.C. 4511.19(A)(2). Because Frazier had three prior
OVI convictions within 10 years, the charges were fourth-degree felonies under R.C. -3-
4511.19(G)(1)(d).
{¶ 5} Frazier moved to suppress the field-sobriety test results, arguing among
other things that Trooper Frost failed to conduct the tests in substantial compliance with
NHTSA standards. The trial court overruled the motion following a January 19, 2018
hearing. Frost then entered a no-contest plea to count two in exchange for the dismissal
of count one. The trial court accepted the plea and made a finding of guilt. It sentenced
Frazier to community-control sanctions that included a 120-day jail sentence.
{¶ 6} On appeal, Frazier challenges the trial court’s suppression ruling. He argues
that the HGN test and the walk-and-turn test were administered improperly and, therefore,
that the results of those two tests should have been suppressed. With regard to the HGN
test, Frazier contends Trooper Frost violated NHTSA standards by (1) failing to test for or
to identify whether Frazier had “resting gaze nystagmus,” (2) using a finger as a stimulus,
and (3) holding a flashlight in Frazier’s face. As for the walk-and-turn test, Frazier claims
the trooper violated NHTSA standards by (1) failing to tell him how to stand while
instructions were being given and (2) failing to tell him to count out loud as he walked.
{¶ 7} As Frazier correctly recognizes, the applicable legal requirement for
admission of field-sobriety test results is whether the tests were conducted in substantial
compliance with NHTSA standards. State v. Davis, 2d Dist. Clark No. 2008-CA-65, 2009-
Ohio-3759, ¶ 14-15. Substantial compliance “is a legal standard for a court’s
determination.” Id. at 18. “We defer to the trial court’s factual findings and independently
determine whether they demonstrate substantial compliance” with NHTSA standards. Id.
{¶ 8} Here the trial court rejected each of Frazier’s arguments about deficiencies
in the HGN test. It reasoned: -4-
The Court is not persuaded by Frazier’s argument that Trooper Frost
did not perform the tests in substantial compliance because he did not
specify that he tested Frazier’s resting nystagmus, he shone the flashlight
on Frazier’s forehead, and used his finger as a stimulus. The NHTSA
manual does not specify that there is a test of resting nystagmus, which
involves an involuntary jerking of the eyes as they gaze straight ahead. Def.
Exh. C. Trooper Frost testified that he did not observe this resting
nystagmus in Frazier. The NHTSA manual also does not specify where a
light is to be shone in order to see a stimulus at night, and does not explain
what type of stimulus is to be used. Def. Exs. B-E. Therefore, Trooper Frost
administered the HGN and VGN tests in substantial compliance with the
NHTSA manual.
(April 9, 2018 Decision, Order and Entry at 8.)
{¶ 9} Upon review, we see no error in the trial court’s decision. The trial court
correctly noted that the NHTSA manual does not prescribe a particular “test” for observing
resting nystagmus, and Trooper Frost testified that he did check for it, finding “equal pupil
size and no resting nystagmus.” (Tr. at 10.) The NHTSA manual also does not prohibit
using a finger as a stimulus for a driver to track with his eyes. In fact, page 18 of “Session
3” of NHTSA’s 2018 “DWI Detection and Standardized Field Sobriety Testing Refresher”
participant manual states that an appropriate stimulus “can be a pen, eraser on a pencil,
the tip of a penlight, the tip of your finger, or any similar small object.” Likewise, page 39
of “Session 8” of NHTSA’s full 2018 participant manual states that “[t]he stimulus may be
the eraser on a pencil, the tip of a penlight, the tip of your finger, or any similar small -5-
object.” Finally, the trial court observed that the NHTSA manual does not specify where
a light should be shined when illuminating a stimulus. Trooper Frost explicitly testified that
he did not shine a light in Frazier’s eyes when performing the HGN test, and the trial court
made a factual finding that the light shined on Frazier’s forehead. (Tr. at 30; April 9, 2018
Decision, Order and Entry at 2.) Having reviewed the record, we agree with the trial court’s
determination that Trooper Frost performed the HGN test in substantial compliance with
NHTSA standards.
{¶ 10} With regard to the walk-and-turn test, the NHTSA manual divides the test
into two stages: (1) the instruction stage and (2) the walking stage. For the first stage, the
manual states that a driver is to be told to position his feet heel-to-toe with his hands at
his side and to maintain that position while being instructed how to perform the test. On
appeal, Frazier claims there was a “significant amount of confusion” regarding whether
Trooper Frost told him to get into the proper position to listen to the remainder of the
instructions.
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[Cite as State v. Frazier, 2021-Ohio-2945.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
: STATE OF OHIO : : Appellate Case No. 28988 Plaintiff-Appellee : : Trial Court Case No. 2017-CR-3307 v. : : (Criminal Appeal from JUSTIN T. FRAZIER : Common Pleas Court) : Defendant-Appellant :
...........
OPINION
Rendered on the 27th day of August, 2021.
MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant
............. -2-
HALL, J.
{¶ 1} Justin T. Frazier appeals from his conviction following a no-contest plea to
one count of felony operating a vehicle while under the influence of alcohol and refusing
a breath test in violation of R.C. 4511.19(A)(2).
{¶ 2} In his sole assignment of error, Frazier challenges the trial court’s denial of
his motion to suppress field-sobriety test results. He argues that a trooper administering
the tests failed to conduct them in substantial compliance with National Highway Traffic
Safety Administration (NHTSA) standards.
{¶ 3} The record reflects that Ohio State Highway Patrol Trooper Eric Frost
initiated a traffic stop after Frazier made a wide left turn and changed lanes without
signaling. Upon approaching Frazier’s vehicle, Frost detected a strong odor of alcohol
and noticed signs of impairment. Frazier’s speech was slow and slurred. He also “fumbled
through his wallet” as if he lacked dexterity in his fingers. Frazier appeared to be
“struggling with normal movements.” He admitted to the trooper that he had consumed
some alcohol.
{¶ 4} Trooper Frost proceeded to have Frazier perform three field-sobriety tests:
the horizontal-gaze-nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand
test. Based on Frazier’s performance, Frost arrested him for operating a vehicle while
under the influence of alcohol. A grand jury subsequently indicted Frazier on two counts:
(1) operating a vehicle while under the influence of alcohol in violation of R.C.
4511.19(A)(1)(a); and (2) operating a vehicle while under the influence of alcohol and
refusing a breath test in violation of R.C. 4511.19(A)(2). Because Frazier had three prior
OVI convictions within 10 years, the charges were fourth-degree felonies under R.C. -3-
4511.19(G)(1)(d).
{¶ 5} Frazier moved to suppress the field-sobriety test results, arguing among
other things that Trooper Frost failed to conduct the tests in substantial compliance with
NHTSA standards. The trial court overruled the motion following a January 19, 2018
hearing. Frost then entered a no-contest plea to count two in exchange for the dismissal
of count one. The trial court accepted the plea and made a finding of guilt. It sentenced
Frazier to community-control sanctions that included a 120-day jail sentence.
{¶ 6} On appeal, Frazier challenges the trial court’s suppression ruling. He argues
that the HGN test and the walk-and-turn test were administered improperly and, therefore,
that the results of those two tests should have been suppressed. With regard to the HGN
test, Frazier contends Trooper Frost violated NHTSA standards by (1) failing to test for or
to identify whether Frazier had “resting gaze nystagmus,” (2) using a finger as a stimulus,
and (3) holding a flashlight in Frazier’s face. As for the walk-and-turn test, Frazier claims
the trooper violated NHTSA standards by (1) failing to tell him how to stand while
instructions were being given and (2) failing to tell him to count out loud as he walked.
{¶ 7} As Frazier correctly recognizes, the applicable legal requirement for
admission of field-sobriety test results is whether the tests were conducted in substantial
compliance with NHTSA standards. State v. Davis, 2d Dist. Clark No. 2008-CA-65, 2009-
Ohio-3759, ¶ 14-15. Substantial compliance “is a legal standard for a court’s
determination.” Id. at 18. “We defer to the trial court’s factual findings and independently
determine whether they demonstrate substantial compliance” with NHTSA standards. Id.
{¶ 8} Here the trial court rejected each of Frazier’s arguments about deficiencies
in the HGN test. It reasoned: -4-
The Court is not persuaded by Frazier’s argument that Trooper Frost
did not perform the tests in substantial compliance because he did not
specify that he tested Frazier’s resting nystagmus, he shone the flashlight
on Frazier’s forehead, and used his finger as a stimulus. The NHTSA
manual does not specify that there is a test of resting nystagmus, which
involves an involuntary jerking of the eyes as they gaze straight ahead. Def.
Exh. C. Trooper Frost testified that he did not observe this resting
nystagmus in Frazier. The NHTSA manual also does not specify where a
light is to be shone in order to see a stimulus at night, and does not explain
what type of stimulus is to be used. Def. Exs. B-E. Therefore, Trooper Frost
administered the HGN and VGN tests in substantial compliance with the
NHTSA manual.
(April 9, 2018 Decision, Order and Entry at 8.)
{¶ 9} Upon review, we see no error in the trial court’s decision. The trial court
correctly noted that the NHTSA manual does not prescribe a particular “test” for observing
resting nystagmus, and Trooper Frost testified that he did check for it, finding “equal pupil
size and no resting nystagmus.” (Tr. at 10.) The NHTSA manual also does not prohibit
using a finger as a stimulus for a driver to track with his eyes. In fact, page 18 of “Session
3” of NHTSA’s 2018 “DWI Detection and Standardized Field Sobriety Testing Refresher”
participant manual states that an appropriate stimulus “can be a pen, eraser on a pencil,
the tip of a penlight, the tip of your finger, or any similar small object.” Likewise, page 39
of “Session 8” of NHTSA’s full 2018 participant manual states that “[t]he stimulus may be
the eraser on a pencil, the tip of a penlight, the tip of your finger, or any similar small -5-
object.” Finally, the trial court observed that the NHTSA manual does not specify where
a light should be shined when illuminating a stimulus. Trooper Frost explicitly testified that
he did not shine a light in Frazier’s eyes when performing the HGN test, and the trial court
made a factual finding that the light shined on Frazier’s forehead. (Tr. at 30; April 9, 2018
Decision, Order and Entry at 2.) Having reviewed the record, we agree with the trial court’s
determination that Trooper Frost performed the HGN test in substantial compliance with
NHTSA standards.
{¶ 10} With regard to the walk-and-turn test, the NHTSA manual divides the test
into two stages: (1) the instruction stage and (2) the walking stage. For the first stage, the
manual states that a driver is to be told to position his feet heel-to-toe with his hands at
his side and to maintain that position while being instructed how to perform the test. On
appeal, Frazier claims there was a “significant amount of confusion” regarding whether
Trooper Frost told him to get into the proper position to listen to the remainder of the
instructions. During the hearing, defense counsel suggested that Frost gave instructions
about how to perform the test without first placing Frazier in the proper position. In
support, counsel played a portion of a video recording of the field-sobriety test. Trooper
Frost disagreed. He testified that during the portion of the video at issue he had not yet
finished explaining how Frazier was to stand. Frost stated that he first had to explain the
proper standing position to Frazier, and get him into that position, before the trooper could
proceed with instructions on how to perform the actual test. (Tr. at 40-48.) The trial court
credited Trooper Frost’s testimony. It found that “[o]nce Frazier mimicked Trooper Frost
and stood in the required heel-to-toe stance with his arms at his sides, Trooper Frost
instructed Frazier on how to perform the test.” (April 9, 2018 Decision, Order and Entry at -6-
9.) A cruiser recording confirms that the trooper explained the proper standing position
and got Frazier into it before proceeding with the rest of the instructions. Finally, Frazier
contends Trooper Frost violated NHTSA standards by failing to tell him to count out loud
as he walked. We reject this argument. Trooper Frost testified that he did tell Frazier to
count out loud. (Tr. at 49.) This testimony was confirmed by the cruiser video, which also
established that Frazier did count out loud as instructed. Under these circumstances, we
see no error in the trial court’s finding of substantial compliance.
{¶ 11} Frazier’s assignment of error is overruled, and the judgment of the
Montgomery County Common Pleas Court is affirmed.
.............
DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr. Elizabeth A. Ellis Kristin L. Arnold Hon. Michael W. Krumholtz