[Cite as State v. Nethers, 2012-Ohio-5198.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12-CA-30 JERRY NETHERS
Defendant-Appellant OPINION
NUNC PRO TUNC
CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 2011-TRC-09446
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 5, 2012
APPEARANCES:
For Defendant-Appellant For Plaintiff-Appellee
ROBERT E. CALESARIC MARK D. GARDNER 35 South Park Place, Suite 150 Hebron Prosecutor Newark, Ohio 43055 23 South Park Place, Ste. 208 Newark, Ohio 43055 Licking County, Case No. 12-CA-30 2
Hoffman, J.
{¶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. Licking County, Case No. 12-CA-30 3
{¶5} Officer Shanaberg, the officer who performs the calibration checks for the
BAC DataMaster machine, testified the specific machine on which Appellant was tested
was printing incorrect dates and times for a period of four to six weeks prior to
Appellant's test. However, he was not the officer who conducted Appellant's test.
{¶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 R.C. 4511.19(A)(1)(a);
operating a vehicle with a prohibited level of alcohol in his breath over .08 but under .17,
in violation of R.C. 4511.19(A)(1)(d), and a marked lanes violation, pursuant to R.C.
4511.33.
{¶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 Licking County, Case No. 12-CA-30 4
the appropriate test or correct law to the findings of fact. In that case, an appellate court
can reverse the trial court for committing an error of law. See, Williams, supra. Finally,
an appellant may argue the trial court has incorrectly decided the ultimate or final issues
raised in a motion to suppress. When reviewing this type of claim, an appellate court
must independently determine, without deference to the trial court's conclusion, whether
the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio
App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶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 Ohio Administrative Code Section 3701-53-
09(D) prohibited Officer Martin, who administered the test and has an operator access
card for the Intoxilyzer 8000, from using the BAC DataMaster test. Appellant maintains
pursuant to the code, the officer could only perform those tests for which he holds an
individual permit. Only one breath testing instrument requires an operator access card,
the Intoxilyzer 8000. Officer Martin had a Senior Operator's Permit to administer
chemical breath tests using the BAC DataMaster, and had also been issued an operator
access card for the Intoxilyzer 8000. Licking County, Case No. 12-CA-30 5
{¶14} In State v. Hudepohl, 2011-Ohio-6917, the court considered the issue
raised herein, determining the argument led to absurd results, we agree. Therein, a
police officer held both a senior operator permit for one type of blood-alcohol breath
testing instrument and an operator access card for a second type of breath testing
instrument. The court held merely holding an operator access card for a second type of
instrument did not prohibit the officer from operating the first type of instrument pursuant
to his senior operator permit.
{¶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
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Nethers, 2012-Ohio-5198.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J. -vs- Case No. 12-CA-30 JERRY NETHERS
Defendant-Appellant OPINION
NUNC PRO TUNC
CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 2011-TRC-09446
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 5, 2012
APPEARANCES:
For Defendant-Appellant For Plaintiff-Appellee
ROBERT E. CALESARIC MARK D. GARDNER 35 South Park Place, Suite 150 Hebron Prosecutor Newark, Ohio 43055 23 South Park Place, Ste. 208 Newark, Ohio 43055 Licking County, Case No. 12-CA-30 2
Hoffman, J.
{¶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. Licking County, Case No. 12-CA-30 3
{¶5} Officer Shanaberg, the officer who performs the calibration checks for the
BAC DataMaster machine, testified the specific machine on which Appellant was tested
was printing incorrect dates and times for a period of four to six weeks prior to
Appellant's test. However, he was not the officer who conducted Appellant's test.
{¶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 R.C. 4511.19(A)(1)(a);
operating a vehicle with a prohibited level of alcohol in his breath over .08 but under .17,
in violation of R.C. 4511.19(A)(1)(d), and a marked lanes violation, pursuant to R.C.
4511.33.
{¶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 Licking County, Case No. 12-CA-30 4
the appropriate test or correct law to the findings of fact. In that case, an appellate court
can reverse the trial court for committing an error of law. See, Williams, supra. Finally,
an appellant may argue the trial court has incorrectly decided the ultimate or final issues
raised in a motion to suppress. When reviewing this type of claim, an appellate court
must independently determine, without deference to the trial court's conclusion, whether
the facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio
App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).
{¶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 Ohio Administrative Code Section 3701-53-
09(D) prohibited Officer Martin, who administered the test and has an operator access
card for the Intoxilyzer 8000, from using the BAC DataMaster test. Appellant maintains
pursuant to the code, the officer could only perform those tests for which he holds an
individual permit. Only one breath testing instrument requires an operator access card,
the Intoxilyzer 8000. Officer Martin had a Senior Operator's Permit to administer
chemical breath tests using the BAC DataMaster, and had also been issued an operator
access card for the Intoxilyzer 8000. Licking County, Case No. 12-CA-30 5
{¶14} In State v. Hudepohl, 2011-Ohio-6917, the court considered the issue
raised herein, determining the argument led to absurd results, we agree. Therein, a
police officer held both a senior operator permit for one type of blood-alcohol breath
testing instrument and an operator access card for a second type of breath testing
instrument. The court held merely holding an operator access card for a second type of
instrument did not prohibit the officer from operating the first type of instrument pursuant
to his senior operator permit.
{¶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 Licking County, Case No. 12-CA-30 6
denying Appellant’s motion to suppress the BAC DataMaster results and in finding the
officer had probable cause to arrest Appellant for OVI herein.
{¶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 Licking County, Case No. 12-CA-30 7
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JERRY NETHERS : : Defendant-Appellant : Case No. 12-CA-30
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/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER