[Cite as State v. Myers, 2026-Ohio-1334.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO, CASE NO. 1-25-49 PLAINTIFF-APPELLEE,
v.
ANDREW J. MYERS, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR2024 0191
Judgment Affirmed
Date of Decision: April 13, 2026
APPEARANCES:
April F. Campbell for Appellant
John R. Willamowski, Jr. for Appellee Case No. 1-25-49
WALDICK, J.
{¶1} Defendant-appellant, Andrew Myers (“Myers”), appeals the August 7,
2025 judgment of conviction and sentence entered against him in the Allen County
Court of Common Pleas, following Myers’ plea of no contest to Operating a Vehicle
While Under the Influence of a Listed Controlled Substance or a Listed Metabolite
of a Controlled Substance (“OVI”). On appeal, Myers specifically challenges the
decision of the trial court overruling motions to suppress filed by Myers. For the
reasons set forth below, we affirm.
Background Facts and Procedural History
{¶2} This case stems from a December 30, 2023 traffic stop conducted by
Patrolman Justin Wireman of the Lima Police Department. On that date, at
approximately 3:50 a.m., Wireman observed a car traveling northbound on South
Main Street in Lima in excess of the posted 25 mile per hour speed limit. As a
result, Wireman stopped the vehicle, which was being driven by Myers. Based on
observations made by Patrolman Wireman during his initial interaction with Myers
following the stop, the officer asked Myers if he had been drinking and Myers
acknowledged having had two drinks earlier in the night. Wireman then conducted
an abbreviated horizontal gaze nystagmus (“HGN”) test on Myers’ eyes while
Myers was still seated in his vehicle. Wireman observed nystagmus in both of
Myers’ eyes, which is a sign of impairment. Patrolman Wireman requested that
Myers exit his vehicle, so that Wireman could administer several standard field
-2- Case No. 1-25-49
sobriety tests. Based on indicators of impairment observed during those field
sobriety tests, Myers was placed under arrest for OVI. Myers was then transported
to the Lima Police Department, where he agreed to provide a urine sample after
having been read the required BMV 2255 form. Laboratory analysis of the urine
sample collected from Myers was subsequently conducted and the results of that
testing reflected the presence of marijuana metabolite in Myers’ urine.
{¶3} On August 15, 2024, an Allen County grand jury returned a two-count
indictment against Myers. Count 1 of the indictment charged Myers with OVI based
on a concentration of marijuana metabolite in his urine of at least thirty-five
nanograms per milliliter of urine, in violation of R.C. 4511.19(A)(1)(j)(viii)(II), a
fourth-degree felony based on the additional allegation that Myers had previously
been convicted of or pleaded guilty to three OVI violations. Count 2 of the
indictment charged Myers with OVI based on the general allegation that he had been
under the influence of alcohol, a drug of abuse, or a combination of the same, in
violation of R.C. 4511.19(A)(1)(a), a fourth-degree felony based on the additional
allegation that Myers had previously been convicted of or pleaded guilty to three
OVI violations.
{¶4} On August 28, 2024, Myers filed a written plea of not guilty to both
counts in the indictment.
{¶5} On October 15, 2024, Myers filed two motions to suppress. In the first
motion, Myers moved to suppress the urine test results, alleging that the urine had
-3- Case No. 1-25-49
not been collected and tested in accordance with the requirements of Chapter 3701-
53 of the Ohio Administrative Code. In the second motion, Myers moved to
suppress the observations of Patrolman Wireman during the stop of Myers’ vehicle
and, specifically, the results of the field sobriety tests, alleging that the initial stop
of Myers’ vehicle was not supported by probable cause or reasonable suspicion and,
further, that the traffic stop was impermissibly expanded without proper legal cause
to ask that Myers submit to field sobriety tests.
{¶6} A suppression hearing was held on January 27, 2025 and on March 31,
2025, following which the trial court took the suppression issues under advisement.
{¶7} On April 22, 2025, the trial court filed a judgment entry in which
Myers’ motions to suppress were overruled.
{¶8} On May 20, 2025, a change of plea hearing was held. At that time,
Myers entered a negotiated plea of no contest to Count 1 of the indictment. Pursuant
to the plea agreement, the prosecution dismissed Count 2 of the indictment. The
trial court accepted the no contest plea and found Myers guilty on Count 1. The
trial court then ordered a presentence investigation.
{¶9} On August 7, 2025, a sentencing hearing was held. Myers was
sentenced to a two-year term of community control, the conditions of which
included a mandatory 60 days in jail. On that same date, the trial court journalized
its sentencing orders.
-4- Case No. 1-25-49
{¶10} On September 5, 2025, Myers filed the instant appeal, in which he
raises three assignments of error for our review.1
First Assignment of Error
Patrolman Wireman did not have reasonable suspicion that Myers was under the influence of alcohol and or drugs to ask him to perform field sobriety tests.
Second Assignment of Error
The field sobriety tests should have been deemed inadmissible.
Third Assignment of Error
The State failed to meet its burden that the urine test was admissible.
Standard of Review – Motions to Suppress
{¶11} “Appellate review of a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 2003-Ohio-5372, ¶ 8. The trial court serves as
the trier of fact and is the primary judge of the credibility of the witnesses and the
weight to be given to the evidence presented. State v. Johnson, 137 Ohio App.3d
847, 850 (12th Dist. 2000). Therefore, when an appellate court reviews a trial court’s
ruling on a motion to suppress, it must accept the trial court’s findings of fact so
long as they are supported by competent, credible evidence. State v. Roberts, 2006-
Ohio-3665, ¶ 100. The appellate court must then review the application of the law
to the facts de novo. Burnside, at ¶ 8.
1 Myers’ merit brief lists two assignments of error in the “Assignments of Error” section of the brief; however, the body of the merit brief sets forth three assignments of error.
-5- Case No. 1-25-49
Evidence Presented at the Suppression Hearing
{¶12} At the January 27, 2025 suppression hearing held in this case, the State
of Ohio called Patrolman Justin Wireman as its first witness. The defense stipulated
that, at the time in question, Wireman was employed by the Lima Police
Department, was on traffic patrol, was wearing the uniform of the day, was in a
marked cruiser, and that Wireman is a lawfully trained and certified police officer.
The defense further stipulated that the initial traffic stop of Myers’ vehicle, for
speeding, was legally valid. The parties further stipulated to the admission of two
exhibits, State’s Exhibits 1 and 2, which contained audio-video footage from
Patrolman Wireman’s body camera and cruiser camera, respectively, during the
traffic stop at issue.
{¶13} Upon taking the stand, Patrolman Wireman testified that on Saturday,
December 30, 2023, at approximately 3:50 a.m., he was conducting stationary patrol
on South Main Street in the City of Lima. Wireman was in his cruiser, which was
facing southbound, and he was monitoring northbound traffic. Wireman testified
that the area where he was located is a hotspot for impaired and erratic driving in
the very early morning hours on weekends, due to several bars and after-hours party
establishments being located nearby. As Patrolman Wireman was watching traffic
from that location, he observed Myers’ vehicle approaching from the south, driving
northbound. Myers’ vehicle stopped at a stop sign and then accelerated rapidly in
Wireman’s direction. Wireman believed that the vehicle was traveling above the
-6- Case No. 1-25-49
twenty-five mile per hour speed limit and, upon activating the radar unit in his
cruiser, confirmed that the vehicle driven by Myers was traveling at thirty-three
miles per hour. As the vehicle drew nearer to Wireman’s location, the vehicle’s
speed increased to thirty-eight miles per hour. Once the vehicle passed Wireman’s
location, he pulled out to follow Myers’ vehicle and then conducted a traffic stop
on Main Street between Second and Third Streets.
{¶14} Upon stopping Myers’ car, Patrolman Wireman approached the
driver’s door window and spoke with Myers. Nearly immediately, Wireman noticed
that Myers’ speech was slurred and his eyes were bloodshot and glassy. Wireman
requested Myers’ driver’s license and proof of insurance but, in response, Myers
handed over his license and registration. Patrolman Wireman again requested proof
of insurance, and Myers was able to use his cell phone to pull up his insurance
information. As Patrolman Wireman conversed with Myers about the traffic stop,
Wireman continued to note that Myers’ speech was slightly slurred and Wireman
could smell the odor of alcohol coming from the vehicle, of which Myers was the
sole occupant. Wireman asked Myers if he had been drinking that evening. In
response, Myers stated that he drank earlier in the night and his last drink was at
approximately 10:00. Later in that initial conversation, Myers stated that he had
had two drinks. Patrolman Wireman also detected an odor of marijuana coming
from Myers’ car.
-7- Case No. 1-25-49
{¶15} Patrolman Wireman then asked if he could perform an abbreviated
horizontal gaze nystagmus (“HGN”) test on Myers’ eyes as he sat in his vehicle.
Upon performing that abbreviated and unofficial test, Wireman noticed that Myers
had nystagmus, which is the involuntary jerking of the eye. As a result of the
observations made during his initial interaction with Myers up to that point,
Patrolman Wireman asked Myers to complete a field sobriety test, and Myers agreed
to submit to the test.
{¶16} Patrolman Wireman testified that he had been trained with regard to
standard field sobriety testing, initially in the police academy and then in follow-up
trainings through the years that he had been a police officer. Wireman testified that
his training on field sobriety testing was based on the National Highway Traffic
Safety Administration (“NHTSA”) manual and that, while he does not know the
manual word for word, he is familiar with it. Wireman then identified State’s
Exhibit 3 as the portion of the NHTSA manual setting forth the procedures for
standardized field sobriety testing. Counsel for the parties noted at that point that
State’s Exhibit 3 was the February, 2023 version of the manual, being the most
recent version.
{¶17} Regarding the field sobriety tests administered in this case, Patrolman
Wireman testified that first he asked Myers to exit his vehicle. As Myers did so,
Wireman noticed that Myers had to grab or touch the side of his car to gain his
-8- Case No. 1-25-49
balance before starting to walk. Patrolman Wireman asked Myers if he had any
injuries that would affect the test, and Myers stated he did not.
{¶18} Patrolman Wireman testified that the first test performed was the HGN
test, which he started by explaining the test to Myers, instructing him to keep his
head still and to follow the movements of a pen held by Wireman with eyes only.
Wireman then held a pen in front of Myers’ nose at a distance of twelve to fourteen
inches, so that Myers could actually focus on the pen. Wireman initially made two
rounds of movement with the pen, moving it first to his right, and then to his left,
while checking Myers’ eyes for movement, before taking the pen, or stimulus, away.
Wireman then put the stimulus back in front of Myers’ nose and moved it from right
to left. Wireman testified that he was looking for an involuntary jerking of the eye
as the stimulus goes from right to left, and that both the right eye and left eye are
checked. Once that was done, Wireman checked for sustained nystagmus at
maximum deviation, meaning that the pen was then moved, first to the right and
then to the left, to a point where Wireman could no longer see the white in the corner
of Myers’ left eye and then right eye, respectively, and then Wireman held the pen
still in that position for at least four seconds in each direction. Wireman testified
that the purpose of that part of the test was to check to see if either eye, or both,
continued to move while he held the pen stationary at that outward point. Patrolman
Wireman testified that, with regard to the HGN test, there are six possible clues that
might be observed which indicate that the subject of the test is intoxicated. During
-9- Case No. 1-25-49
the HGN test administered to Myers, Wireman observed the maximum six clues.
Wireman then also conducted vertical nystagmus testing, and observed no clues.
{¶19} Patrolman Wireman next had Myers move to the sidewalk, which was
a flat surface. Wireman testified that, because he was going to have Myers do a
walk and turn test and a one-legged stand test, it was important that Myers not be
standing on a slope that might affect his ability to properly do the test.
{¶20} Once on the sidewalk, Wireman administered the walk and turn test,
during which he asked Myers to imagine a straight line in front of him, and to then
put his left foot on that line, and then to take his right foot and place it in front of
the left foot in a heel-to-toe fashion, so that the right heel is touching the left foot.
Myers attempted to get into that starting position but could not hold the position for
any length of time, as he kept stepping out of the position or losing his balance.
Patrolman Wireman then explained the test, instructing Myers that he was to take
nine heel-to-toe steps, touching heel to toe on every step, while counting each step
out loud and not using his arms for balance. Wireman instructed Myers that once
he got to the ninth step, he was to pivot on his left foot, making small steps with his
right foot, to then turn around and return in the same fashion, taking nine heel-to-
toe steps, touching heel to toe on every step, while counting each step out loud and
not using his arms for balance. Wireman asked Myers if he understood, and Myers
indicated that he did. Wireman then demonstrated the test for Myers, doing an
-10- Case No. 1-25-49
abbreviated demonstration with three steps. Myers again noted that he understood
and began the test.
{¶21} Patrolman Wireman testified that, during that test, Myers stepped off
the line two times and planted his foot a few times throughout the first nine steps of
the test. Myers also failed to touch heel to toe and turned incorrectly. Once he
turned around, Myers asked Wireman what it was that he was supposed to do at that
point. Myers then returned, again failing to touch heel to toe on two steps, stepping
off the line, and stopping in between steps multiple times.
{¶22} Patrolman Wireman further testified that, during the walk and turn
test, he shined his very bright flashlight toward the ground, which provided adequate
light for Myers to see to perform the test.
{¶23} Patrolman Wireman testified that the last test conducted was the one-
legged stand test. In that test, the subject is asked to stand in a “starting position”,
with feet together and hands down at his sides. Once that was done, Wireman
explained to Myers that he needed to pick up one leg, whichever leg he was more
comfortable using, and hold the leg approximately six inches off the ground while
pointing his toes straight down the sidewalk. Myers was instructed that he then
needed to look at his toes and count out loud, one thousand one, one thousand two,
and so on, until told to stop. Myers was instructed that, while doing so, he was not
to bring his arms up for balance. Patrolman Wireman asked Myers if he understood,
and Myers said he did. Wireman then demonstrated the test, and Myers again
-11- Case No. 1-25-49
acknowledged that he understood. Wireman then told Myers he could begin the
one-legged stand test.
{¶24} Patrolman Wireman testified that, during that test, Myers put his foot
down on the count of two and the count of four, and then picked up his foot and bent
his leg to the point where it wasn’t straight out in front of him. Myers got to
approximately the count of twenty, at which point he started to pivot and hop on his
leg. Wireman then stopped the test, because he did not want Myers to fall down or
hurt himself.
{¶25} After those three tests were completed, Wireman asked Myers how he
would rate himself on a sliding scale, with one being very sober and ten being
extremely intoxicated or impaired. Myers responded that he was either a one or a
two.
{¶26} Patrolman Wireman then advised Myers that, due to signs of
impairment that had been observed, he was being placed under arrest for OVI.
Wireman asked Myers if, after being read the formal form, he would submit to a
breath test. At that point, Wireman learned that Myers had multiple prior OVI
convictions. Once Wireman confirmed that the current OVI arrest would be for a
felony, he transported Myers to the Lima Police Department in order to request a
urine sample.
{¶27} Upon arriving at the police station, Myers was taken to a small holding
room and Wireman read Myers the official BMV 2255 form, which explained the
-12- Case No. 1-25-49
potential penalties for submitting or not submitting to a test. Wireman then asked
Myers to provide a urine sample, and Myers consented to do so.
{¶28} In obtaining the urine sample, Patrolman Wireman asked Myers if he
needed to urinate, and Myers said he did. Wireman then opened a pre-made test kit
provided to the police department by the Lucas County toxicology lab. Wireman
walked Myers to a nearby bathroom, with Wireman maintaining control of the cup,
or container, for the urine until they reached the bathroom, where he handed the cup
to Myers to urinate in. Myers urinated into the cup, filling it approximately halfway,
and then handed it back to Wireman, who immediately replaced the screw-top cap
on the container. After Myers had finished using the bathroom and had washed his
hands, Wireman escorted Myers back to the holding room. At that time, which was
approximately 4:20 a.m., Patrolman Wireman adhered the anti-tampering evidence
seal to the screw-top of the urine container, and filled out identifying information
on that seal. Wireman placed the bottle and an information sheet for the lab in a
plastic bag that is provided with the test kits, and placed the bag containing the urine
sample and the paperwork back into the box. He then sealed the box, so that it could
immediately be placed into the U.S. mail to be shipped to the lab in Lucas County.
Finally, Patrolman Wireman testified on direct examination that Myers was then
released to a person he had called to come and pick him up.
{¶29} On cross-examination, Patrolman Wireman testified that he had
initially been trained on standardized field sobriety testing (“SFST”) in college in
-13- Case No. 1-25-49
approximately 2004, that he had completed several updated SFST courses since that
time, with the most recent training having been in 2019. With regard to the traffic
stop at issue, Wireman confirmed that Myers’ speeding was the only “bad driving”
observed by the officer prior to making the traffic stop. Wireman testified, as he
had on direct examination, that Myers handed over his license and registration when
asked for his license and insurance information. Patrolman Wireman acknowledged
that, when asked again for the insurance information, Myers was able to sort through
the apps on his phone and pull up the requested information. Wireman testified that,
upon walking up to Myers’ car after stopping it, Myers’ slightly slurred speech was
immediately noticeable. Wireman acknowledged that he was unaware of what
Myers’ speech sounds like normally; however, Wireman testified that there were
several times that Myers’ speech was slightly slurred as the traffic stop continued.
Patrolman Wireman confirmed that Myers did not fumble with his fingers when
using his phone, and that Myers answered the officer’s questions in a clear manner.
{¶30} When asked about the abbreviated, or partial, HGN test that he initially
performed while Myers was still in the stopped car, Patrolman Wireman testified
that such a test is not scientifically validated to his knowledge and he confirmed that
the initial HGN testing he performed was not a full HGN test. Wireman reiterated
his prior testimony that Myers was slightly unsteady on his feet when he got out of
his car, and that Myers leaned towards and brushed up against the car with his hand
to steady himself.
-14- Case No. 1-25-49
{¶31} When asked about the three standardized field sobriety tests that were
ultimately conducted in the case, Wireman testified that, in his opinion, those three
tests would reveal impairment due to alcohol or drugs. However, Wireman testified
that he did not know if the NHTSA had yet recognized those tests as valid indicators
for impairment due to drugs, as opposed to alcohol. With regard to the odor of
marijuana that he smelled coming from Myers’ car, Patrolman Wireman
acknowledged that he neglected to include that detail in his report.
{¶32} When asked on cross-examination whether he had questioned Myers
about any prior concussions or neurological injuries, Patrolman Wireman testified
that those conditions fall under the category of “injuries” generally, which he did
ask Myers about. Wireman confirmed that he did not specifically ask Myers if he
had any inner ear problems or problems with his eyesight. Wireman also
acknowledged that he did not specifically ask Myers if he had any back or leg issues,
because such things also fall under the category of “injuries”, which he had
questioned Myers about.
{¶33} Finally, Patrolman Wireman testified briefly on cross-examination
about collecting the urine sample from Myers, filling out the paperwork, sealing the
box, and placing the completed test package in a special outgoing mailbox at the
Lima Police Department.
{¶34} On redirect-examination, Patrolman Wireman testified that, prior to
administering the abbreviated HGN test, he felt that, based on all of his other
-15- Case No. 1-25-49
observations, he had adequate suspicion to ask Myers to submit to field sobriety
tests. Wireman also testified that, based on having administered field sobriety tests
approximately five hundred times during his law enforcement career, it was his
experience that when he would ask generally about any injuries, people would tell
him if they had back problems, head injuries, or trouble with their eyes. Patrolman
Wireman testified that Myers did not indicate that he had anything physically wrong
with him.
{¶35} On recross-examination, Patrolman Wireman acknowledged that
bloodshot or glassy eyes can also be caused by conditions other than using
intoxicating substances.
{¶36} At the January 27, 2025 suppression hearing, the State of Ohio also
presented the testimony of Jennifer Swatek, a forensic toxicologist employed by
NMS Labs. Swatek testified that NMS Labs is a private toxicology laboratory that
conducts testing of biological fluids for intoxicating substances. Swatek testified
that she has a Bachelor’s of Science degree from Northern Michigan University in
forensic biochemistry, and a Master’s of Science degree in forensic science from
Arcadia University. Swatek testified that she has performed controlled substance
analysis upon hundreds of thousands of samples throughout her nearly 13-year
career at NMS, and that she had testified in court about such analyses on numerous
occasions.
-16- Case No. 1-25-49
{¶37} Swatek confirmed that, in the instant case, NMS Labs had been asked
by Lucas County Toxicology to perform testing for cannabinoid metabolite in a
urine sample. Swatek testified that, while she was not the actual NMS employee
who tested the urine sample at issue, she then did her own independent data analysis
on the results of the instrumental testing and she authored the report setting forth
the results of that analysis. Swatek explained the scientific methods and “assembly
line” testing procedure utilized by NMS Labs. Swatek further testified about how
samples of bodily fluids, including the sample in this case, are prepared and tested
using instrumental analysis by a single laboratory technician, and how the test
results are then analyzed. Swatek confirmed that samples to be tested are
refrigerated in secured storage, that a chain of custody of each sample is maintained,
and that specific protocols exist and are followed in all aspects of the testing.
Swatek testified that the lab keeps daily maintenance logs on its equipment and that
tests are run for quality control prior to any sample being tested. Swatek testified
that valid permits are in place from the Ohio Department of Health for the testing
done by NMS Labs.
{¶38} Following the presentation of evidence at the January 27, 2025
hearing, a continuation of that hearing was held on March 31, 2025. At the March
31, 2025 hearing, the prosecution presented the testimony of Robin Shinaver, the
director of the toxicology lab of the Lucas County Coroner’s Office. With regard
to the instant case, Shinaver testified that her lab had received a urine sample on
-17- Case No. 1-25-49
which the lab was asked to run a bottle screen and confirmation, and then a drug
screen and confirmation. Shinaver testified that due to the testing required on the
urine sample, a portion of the sample was sent from Lucas County to NMS Labs in
Pennsylvania for a cannabinoids panel to be done. Shinaver confirmed that the
remaining portion of the parent sample originally received by Lucas County in the
case had been retained by that lab.
Analysis of Assignments of Error
{¶39} In the first assignment of error, Myers asserts that the arresting officer,
Patrolman Wireman, did not have a reasonable suspicion that Myers was under the
influence of alcohol or drugs, as required to expand the initial traffic stop for
speeding to include field sobriety tests.
As this Court explained in State v. Angers, 2021-Ohio-3640 (3d Dist.):
“[T]here are three distinct stages in the typical * * * [OVI] scenario: (1) the initial stop; (2) the request that the driver submit to field sobriety tests; and (3) the arrest.” State v. Dierkes, 11th Dist. Portage No. 2008-P-0085, 2009-Ohio-2530, ¶ 18, quoting State v. Richards, 11th Dist. Portage No. 98-P-0069, 1999 Ohio App. LEXIS 4860, 1999 WL 1580980, *2 (Oct. 15, 1999). “In order to warrant removing a person from his vehicle to conduct field sobriety tests, a police officer must have reasonable articulable suspicion to believe that the person was driving under the influence of drugs or alcohol.” State v. Swartz, 2d Dist. Miami No. 2008 CA 31, 2009-Ohio-902, ¶ 11, quoting State v. Knox, 2d Dist. Greene App. No. 2005-CA-74, 2006-Ohio-3039, ¶ 11.
“Whether an officer had a reasonable, articulable suspicion to administer field sobriety tests is a ‘very fact-intensive’
-18- Case No. 1-25-49
determination.” State v. Santiago, 195 Ohio App.3d 649, 2011-Ohio- 5292, 961 N.E.2d 264, ¶ 13, quoting State v. Wells, 2d Dist. Montgomery No. 20798, 2005-Ohio-5008, ¶ 9. In deciding whether a police officer has a sufficient legal justification to administer field sobriety tests, courts have considered the following factors:
(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (e.g., whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect’s person or breath; (8) the intensity of that odor, as described by the officer (‘very strong,’ ‘strong,’ ‘moderate,’ ‘slight,’ etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.
State v. Schriml, 3d Dist. Marion No. 9-12-32, 2013-Ohio-2845, ¶ 26, quoting State v. Evans, 127 Ohio App.3d 56, 711 N.E.2d 761, fn. 2 (11th Dist. 1998). None of these factors are to be considered “in isolation.” State v. Null, 3d Dist. Logan No. 8-19-50, 2020-Ohio- 3222, ¶ 19. However, courts generally uphold “an officer’s decision to conduct roadside sobriety tests * * * where the officer bases his decision on a number of factors.” Evans at 63.
Id., at ¶¶ 26-27.
{¶40} “The Supreme Court of Ohio has defined ‘reasonable articulable
suspicion’ as ‘specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion [upon an individual’s
freedom of movement].’” State v. Shaffer, 2013-Ohio-3581, ¶ 18 (3d Dist.),
-19- Case No. 1-25-49
quoting State v. Bobo, 37 Ohio St.3d 177, 178, (1988), quoting Terry v. Ohio, 392
U.S. 1, 21-22 (1968).
{¶41} “Importantly, reasonable suspicion [to support requesting field
sobriety tests] does not require an officer to observe and relate overt signs of
intoxication.” State v. Null, 2020-Ohio-3222, ¶ 18 (3d Dist.), citing Cleveland v.
Martin, 2018-Ohio-740, ¶ 14 (8th Dist.). “Rather, ‘[a] court will analyze the
reasonableness of the request based on the totality of the circumstances, viewed
through the eyes of a reasonable and prudent police officer on the scene who must
react to events as they unfold.’” Null, at ¶ 18, quoting Cleveland v. Maxwell, 2017-
Ohio-4442, ¶ 20 (8th Dist).
{¶42} In the instant case, Myers acknowledges that he, while driving, was
validly stopped by Patrolman Wireman for a speeding infraction. However, Myers
asserts that there was no evidence of erratic or impaired driving; that other than
having slightly slurred speech upon initially speaking with Patrolman Wireman,
Myers carried on a sober-sounding conversation with the officer; that Myers showed
awareness and clearness of intellect while speaking with the patrolman; and that
Myers was able to access his insurance information on his phone without difficulty.
Based on those facts, Myers argues that Patrolman Wireman lacked a reasonable
suspicion that Myers was under the influence of alcohol or drugs, as required to
expand the initial traffic stop for speeding to include field sobriety tests.
-20- Case No. 1-25-49
{¶43} Upon our de novo application of the test adopted in Angers, supra, to
the facts of this case, we conclude that the trial court did not err in determining that,
upon the totality of the circumstances, Patrolman Wireman had a reasonable
suspicion to prolong the valid traffic stop in order to administer field sobriety tests.
{¶44} The stop was initiated at 3:50 a.m., early Saturday morning, on a street
in an area of Lima known by police to be a corridor for driving to nearby after-hours
drinking establishments after the local bars close. Patrolman Wireman initiated the
traffic stop because Myers was engaged in erratic driving, to the extent he failed to
conform the speed of his vehicle to the posted speed limit. Myers’ eyes were both
bloodshot and glassy, and his speech was slightly slurred. Myers continued to slur
his speech in that manner while speaking with the officer during the initial part of
the traffic stop. The odors of alcohol and marijuana were emanating from the
vehicle driven by Myers, of which he was the only occupant. While Myers
ultimately provided the requested driver’s license and insurance documentation, and
was able to work his phone to retrieve his insurance information, he initially
demonstrated an inability to understand and/or comply with Patrolman Wireman’s
request to see a driver’s license and proof of insurance. Finally, Myers admitted to
having consumed alcohol earlier that night, although he claimed to have had only
two drinks.
-21- Case No. 1-25-49
{¶45} Under the totality of those circumstances, there was reasonable
suspicion to request that Myers perform field sobriety tests, which existed prior to
the administration of any type of testing.
{¶46} The first assignment of error is overruled.
{¶47} In the second assignment of error, Myers argues that the trial court
erred in ruling that the State of Ohio met its burden in establishing that the field
sobriety tests, and the results thereof, were admissible. Specifically, Myers notes
that the arresting officer, Patrolman Wireman, testified that his last formal training
on field sobriety tests occurred in 2019. Myers asserts that Wireman was therefore
not familiar with the governing standards for such tests in effect at the time the field
tests were administered in this case, and that Wireman failed to screen, or question,
Myers about potential injuries or physical limitations that could impact his ability
to perform the tests.
{¶48} The admissibility of results of field sobriety tests in OVI prosecutions
is governed by R.C. 4511.19(D)(4)(b), which provides in relevant part:
In any criminal prosecution * * * for a violation of division (A) or (B) of this section, * * * if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then
-22- Case No. 1-25-49
in effect that were set by the national highway traffic safety administration, all of the following apply:
(i) The officer may testify concerning the results of the field sobriety test so administered.
(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution * * * .
{¶49} The Supreme Court of Ohio has noted that, in other words, R.C.
4511.19(D)(4)(b) dictates that “the 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, 2014-Ohio-1574, ¶ 11. On the other hand, the Ohio Supreme
Court has also made clear that the testimony of a law enforcement officer regarding
observations made during the administration of field sobriety tests is admissible in
the absence of strict compliance with the NHTSA guidelines. See e.g., State v.
Boczar, 2007-Ohio-1251.
{¶50} “Clear and convincing evidence is that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but not to the extent of
such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and
which will produce in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus. Errors that are excusable under the substantial-
compliance standard are characterized as “minor procedural deviations.” State v.
-23- Case No. 1-25-49
Burnside, 2003-Ohio-5372, ¶ 34, citing State v. Homan, 89 Ohio St.3d 421 (2000),
superseded by statute on other grounds as recognized in State v. Boczar, 2007-
Ohio-1251.
{¶51} At the suppression hearing in the instant case, admitted into evidence
as State’s Exhibit 3 was a copy of Session 8 of the 2023 NHTSA DWI Detection
and Standardized Field Sobriety Testing manual. Upon this Court’s independent
review of the evidence presented at the suppression hearing, in light of the standards
set forth in State’s Exhibit 3, we conclude the State of Ohio established by clear and
convincing evidence that Patrolman Wireman substantially complied with the
guidelines for field sobriety testing established by the NHTSA. The overall
evidence relating to the field sobriety testing in this case reflects no substantial
deviation from the standards set forth in the NHTSA manual for the full horizontal
gaze nystagmus test, the walk and turn test, and the one-legged stand test. While
Patrolman Wireman did not go through a check-list of medical questions with Myers
prior to conducting the tests, Wireman did ask Myers if he had any injuries that
would affect his ability to perform the tests and Myers answered he did not. We
further note that Myers does not claim to have had any physical impairments that
Patrolman Wireman failed to identify prior to proceeding with the testing.
Accordingly, any minor procedural deviation with regard to questioning Myers
about specific physical limitations does not warrant suppression. Accord State v.
Abaev, 2025-Ohio-1108 (5th Dist.); State v. Tisch, 2018-Ohio-5323 (9th Dist.).
-24- Case No. 1-25-49
{¶52} As the trial court did not err by concluding that Patrolman Wireman
administered the field sobriety tests in substantial compliance with the NHTSA
standards, the second assignment of error is overruled.
{¶53} In the third assignment of error, Myers argues that the trial court
should have suppressed the results of the urine test due to lack of compliance with
the Ohio Department of Health regulations set forth in Chapter 3701-53 of the Ohio
Administrative Code.
{¶54} As the Supreme Court of Ohio has noted, “[t]he legislature in Ohio has
directed that in a criminal prosecution for a violation of R.C. 4511.19(A) or (B), a
bodily substance shall be analyzed in accordance with methods approved by the
director of health[.]” State v. Baker, 2016-Ohio-451, ¶ 16, citing R.C.
4511.19(D)(1)(b). Pursuant to that statutory requirement, the director of heath
promulgated Ohio Adm.Code 3701-53. Id.
{¶55} The Ohio Supreme Court has held that rigid compliance with ODH
regulations is not required, as such compliance is not always humanly or realistically
possible. State v. Plummer, 22 Ohio St.3d 292, 294 (1986). Rather, if the
prosecution shows substantial compliance with the regulations, absent prejudice to
the defendant, alcohol and drug tests results are admissible. Id., at 294-295.
{¶56} It has also been held that the burden to establish substantial
compliance extends only to the level with which a defendant takes issue with the
-25- Case No. 1-25-49
legality of the testing at issue. State v. Bordeau, 2023-Ohio-2040, ¶ 13 (5th Dist.),
citing State v. Johnson, 137 Ohio App.3d 847, 851 (12th Dist. 2000); State v.
Crothers, 2004-Ohio-2299, ¶ 10 (12th Dist.). “When the defendant’s motion to
suppress merely raises a generalized claim of inadmissibility and identifies the
section(s) of the Administrative Code implicated in the claim, the burden on the
State is slight.” Bordeau, at ¶ 13, citing State v. Bissaillon, 2007-Ohio 2349, ¶ 12
(2d Dist.); State v. Williams, 1998 WL 214595 (2d Dist. Apr. 24, 1998); State
v. Embry, 2004-Ohio-6324, ¶ 24 (12th Dist.). “The State is only required to present
general testimony there was substantial compliance with the requirements of the
regulations; specific evidence is not required unless the defendant raises a specific
issue in the motion to suppress.” Bordeau, at ¶ 13, citing Bissaillon, supra, at ¶
12; State v. Crotty, 2005-Ohio 2923, ¶ 19 (12th Dist.).
{¶57} Finally, as the Supreme Court of Ohio explained in State v. Baker,
2016-Ohio-451:
A defendant must first challenge the validity of the alcohol test by way of a pretrial motion to suppress evidence; failure to file such a motion “waives the requirement on the state to lay a foundation for the admissibility of the test results.” State v. French, 72 Ohio St.3d 446, 451, 1995 Ohio 32, 650 N.E.2d 887 (1995). The state then has the burden to show that it substantially complied with regulations prescribed by the director of health in the Ohio Administrative Code. If the state meets its burden of going forward with the evidence in this regard, a presumption of admissibility arises, and the burden then shifts back to the defendant to rebut the presumption by demonstrating prejudice from the state’s failure to strictly comply with the applicable regulations in the Ohio Administrative Code.
-26- Case No. 1-25-49
Id., at ¶ 23.
{¶58} In the instant case, Myers’ motion to suppress the urine test results set
forth twenty-one grounds for suppression, all of which generally reiterated the
various Administrative Code provisions alleged to have been violated, but the
motion did not set forth a case-specific factual basis for any of the twenty-one
claims.
{¶59} On appeal, Myers argues – as he ultimately did in his written closing
argument filed in the trial court with regard to the motion to suppress – that Ohio
Adm.Code 3701-53-07 requires the laboratory to conduct a proficiency test for the
type of testing performed, requires a written procedure manual for all testing
performed, and requires that a urine test must be done in a laboratory by a laboratory
technician. Myers asserts that the prosecution did not meet its burden in establishing
substantial compliance with those regulations, primarily because no “documentary
evidence” of the same was presented at the suppression hearing.
{¶60} Ohio Adm.Code 3701-53-07 sets forth certain requirements for
laboratories conducting testing for alcohol or drugs of abuse in bodily substances.
As relevant to the claims raised in this appeal, Adm.Code 3701-53-07 provides:
(B) The laboratory shall successfully complete a national proficiency testing program using the applicable techniques or methods for which the laboratory personnel seek a permit under rule 3701-53-10 of the Administrative Code. The designated laboratory director or designee will submit a copy of the proficiency test results to the director or their designee.
-27- Case No. 1-25-49
(C) The laboratory will have a written procedure manual of all analytical techniques or methods used for testing of alcohol or drugs of abuse in bodily substances. Textbooks and package inserts or operator manuals from the manufacturer may be used to supplement but may not be used in lieu of the laboratory’s own procedure manual for testing specimens.
***
(G) Tests for drugs of abuse in blood, urine, oral fluid and other bodily substances shall be performed in a laboratory by a laboratory director or by a laboratory technician. Laboratory personnel shall not perform a technique or method of analysis that is not listed on the laboratory director’s permit.
{¶61} Contrary to Myers’ claims, the record of the suppression hearing
reflects that the State of Ohio presented evidence of substantial compliance with
those regulations through the testimony of Jennifer Swatek, a forensic toxicologist
employed by NMS Labs, the laboratory that tested Myers’ urine sample for the
presence of cannabinoid metabolite.
{¶62} In addition to the details set forth, supra, with regard to Swatek’s
testimony at the suppression hearing, her testimony served to establish the chain of
custody and testing protocols that were followed with regard to the urine sample at
issue. Specifically, Swatek testified that when a sample is received by that lab, the
lab’s specimen processing department logs the sample into the NMS system to start
the chain of custody at NMS. Swatek testified that the specimen processor was also
responsible for maintaining the integrity of the sample, providing the laboratory
itself with samples necessary for testing, and arranging secured storage for any
-28- Case No. 1-25-49
sample not needed for testing. Swatek testified that, following that, the sample that
was tested traveled through the lab in an assembly-line style, a process that included
a specific laboratory technician preparing the sample for instrumental analysis, and
then handling and processing the sample with quality controls and calibrations
followed and validated as standard operating procedure.
{¶63} Swatek testified that after the sample went through instrumental
analysis, an analyst then calculated the results using a set standard of acceptance
criteria. Those results were then reviewed by a second analyst who assessed the
results, and the results were then provided to Swatek, as the assigned toxicologist.
Swatek then reviewed all of the quality control measures, the data, and performed
an independent assessment of acceptance criteria to assure the accuracy and
reliability of the results. Following that, a report with Swatek’s signature was then
issued. Swatek was also asked if NMS’s protocols and procedures are set forth in a
laboratory manual, and she testified that they are, and that NMS has standard
operating procedures for essentially every process that is conducted within the lab.
Swatek also testified that valid permits are in place from the Ohio Department of
Health for the testing done by NMS Labs.
{¶64} In the absence of any case-specific factual claim having been raised in
Myers’ motion to suppress with regard to the qualifications of the laboratory
personnel or the laboratory procedures in place at NMS, the prosecution met its
burden of going forward with evidence that it had substantially complied with the
-29- Case No. 1-25-49
regulations prescribed by the director of health in the Ohio Administrative Code.
Therefore, a presumption of admissibility arose, and the burden shifted back to the
defendant to rebut the presumption by demonstrating prejudice from the state’s
failure to strictly comply with the applicable regulations in the Ohio Administrative
Code. State v. Baker, supra, at ¶ 23. No such prejudice was demonstrated here.
{¶65} The third assignment of error is overruled.
Conclusion
{¶66} Having found no error prejudicial to the defendant-appellant, Andrew
Myers, in the particulars assigned and argued, the judgment of conviction and
sentence entered in the Allen County Court of Common Pleas is affirmed.
ZIMMERMAN, P.J., and MILLER, J., concur.
-30- Case No. 1-25-49
JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
Juergen A. Waldick, Judge
William R. Zimmerman, Judge
Mark C. Miller, Judge
DATED: /jlm
-31-