[Cite as State v. Ponce-Suares, 2025-Ohio-4480.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240669 TRIAL NOS. C/24/TRC/12545/A/B/C Plaintiff-Appellee, :
vs. :
JERICKSON PONCE-SUARES, : JUDGMENT ENTRY Defendant-Appellant. :
This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgments of the trial court are affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 9/26/2025 per order of the court.
By:_______________________ Administrative Judge [Cite as State v. Ponce-Suares, 2025-Ohio-4480.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240669 TRIAL NOS. C/24/TRC/12545/A/B/C Plaintiff-Appellee, :
vs. : OPINION JERICKSON PONCE-SUARES, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: September 26, 2025
Connie Pillich, Hamilton County Prosecuting Attorney, and Candace Crear, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. [Cite as State v. Ponce-Suares, 2025-Ohio-4480.]
MOORE, Judge.
{¶1} Defendant-appellant Jerickson Ponce-Suares1 appeals the denial of his
motion to suppress and argues that the officer did not administer the field sobriety
tests (“FSTs”) in substantial compliance with the requirements set forth by the
National Highway Traffic Safety Administration (“NHTSA”). He asserts his
convictions for first-degree misdemeanor operating a motor vehicle while under the
influence of alcohol (“OVI”), in violation of R.C. 4511.19(A)(1)(a), driving without a
license, an unclassified offense, in violation of R.C. 4510.12(A)(1), and minor-
misdemeanor marked-lanes infraction, in violation of R.C. 4511.33, were based on the
evidence that should have been suppressed.
I. Factual and Procedural History
The Motion to Suppress
{¶2} Ponce-Suares filed a motion to suppress on August 5, 2024. He argued
(1) his warrantless arrest was not supported by probable cause, (2) the officer who
administered the FSTs was not certified to administer the tests, which jeopardized the
results or the tests were not properly administered according to NHTSA guidelines,
(3) the officer did not comply with the procedures set forth by NHTSA for the
horizontal-gaze-nystagmus (“HGN”) and walk-and-turn2 (“WAT”) tests, (4) the
results of the portable breathalyzer test (“PBT”) were inadmissible at trial and should
not be relied on to determine whether probable cause existed, and (5) his statements
were obtained in violation of his Fifth and Sixth Amendment rights under the United
States Constitution as applied to the states through the Fourteenth Amendment and
1 While appellant’s name is spelled “Ponce-Suraez” on appeal, we use the spelling, “Ponce-Suares”
as reflected in the filings at the trial level. 2 The motion also addressed the one-leg stand, a test which was not administered to Ponce-Suares. OHIO FIRST DISTRICT COURT OF APPEALS
Article I, Section 10 of the Ohio Constitution.
The hearing on Ponce-Suares’ motion to suppress.
{¶3} The trial court held a hearing on Ponce-Suares’ motion on September
25, 2024. Amberly Village Police Officer Brian Thompson testified that he is trained
in OVI, attends continuing OVI training annually, has training in the admission of FST
results during a trial, and is an OVI instructor. Officer Thompson also testified that he
stays up to date on changes to the NHTSA manual.
The Stop
{¶4} Officer Thompson testified that he stopped Ponce-Suares on May 5,
2024, after Ponce-Suares’ car veered into his lane and nearly struck his police cruiser.
Officer Thompson followed Ponce-Suares’ vehicle and observed him commit marked-
lane violations, so he activated the motor vehicle recorder (“MVR”) on his cruiser. The
recording from the MVR was played in open court.
{¶5} For reasons not made clear in the record, Ponce-Suares drove his car
into the driveway of the Amberly Village Fire Department. Officer Thompson parked
his cruiser behind Ponce-Suares’ car, got out, and approached Ponce-Suares’ car.
Officer Thompson testified that neither Ponce-Suares nor his passenger spoke
English. He later stated that Ponce-Suares stated that he understood a little bit of
English.
{¶6} Officer Thompson testified that he immediately noticed that Ponce-
Suares had bloodshot and watery eyes, and he smelled alcohol coming from inside the
car. Officer Thompson used Google Translate to communicate with Ponce-Suares and
the passenger. Using Google Translate, Officer Thompson explained that he stopped
them because Ponce-Suares nearly hit the police cruiser, and afterward, the car Ponce-
Suares was driving was “swerving.” Officer Thompson then asked them if they had
4 OHIO FIRST DISTRICT COURT OF APPEALS
drunk any alcohol that evening. Ponce-Suares did not respond, while the passenger
admitted to drinking four beers.
{¶7} The video from Officer Thompson’s body-worn camera (“BWC”) was
introduced. Officer Thompson had Ponce-Suares get out of his car to complete the
FSTs. Officer Thompson testified that he could smell alcohol coming from Ponce-
Suares’ mouth as he spoke.
The Horizontal Gaze Nystagmus (HGN)
{¶8} Officer Thompson used Google Translate to give him instructions for
the HGN. Officer Thompson asked Ponce-Suares if he had any relevant medical
conditions, and if he wore glasses or contacts. Officer Thompson testified that he held
the pen used in the test approximately ten to 12 inches from Ponce-Suares’ face. Officer
Thompson instructed Ponce-Suares to focus on the tip of the pen that Officer
Thompson was holding and to “move [his] eyes” following the pen, but not to “twist”
his head. In English, he told Ponce-Suares to put his hands at his side and put his feet
together while demonstrating what he was instructing Ponce-Suares to do. As Ponce-
Suares continued to move his head, Officer Thompson again instructed him to keep
his head still, using Google Translate to state, “Please keep your head still, only move
your eyes to follow the pen.”
{¶9} In English, Officer Thompson told Ponce-Suares to put his hands on his
chin, motioning his hands to guide Ponce-Suares’s hands to his chin, and proceeded
with the test. Although Ponce-Suares’ eyes cannot be seen on the BWC the entire time,
the BWC captures him looking away from the pen. The footage shows that Officer
Thompson completed approximately nine passes.
{¶10} Officer Thompson testified that he observed that Ponce-Suares’ pupils
were equal in size, and the first clue he observed was the “lack of smooth pursuit, equal
5 OHIO FIRST DISTRICT COURT OF APPEALS
tracking,” and then he observed “distinct sustained nystagmus at maximum
deviation,” which totaled six clues. Officer Thompson testified that he had no
indication that his results were invalid.
{¶11} On cross-examination, Officer Thompson acknowledged that Ponce-
Suares had difficulty understanding the instructions. He also conceded that he
touched Ponce-Suares’ chin during the test to lower it for the test. Officer Thompson
testified that he had gotten “tidbits” of the results of the test prior to lowering Ponce-
Suares’ chin and, although Ponce-Suares moved his head when he was told to keep it
still, Officer Thompson was able to note “jerking of the eyes.”
The WAT
{¶12} Officer Thompson testified he did his “best to explain and demonstrate
the instructions” for the WAT. He instructed Ponce-Suares to take nine steps. Officer
Thompson acknowledged that Ponce-Suares had difficulty understanding the
instructions and he had to stop the test repeatedly to re-explain the instructions.
{¶13} Officer Thompson recounted his discussion with the other two officers
on the scene about the admissibility of the FSTs due to the language barrier, which he
testified prompted him to administer the PBT. Officer Thompson was heard on the
BWC telling the officers that he was “giving up on the OVI” and he “can’t do this.” He
also told them, “On motion to suppress they’re going to throw everything,” because
Ponce-Suares did not understand the instructions. He also told the officers that Ponce-
Suares’ eyes were “shot” and that he was drunk, but he did not know what to do at that
point because none of the officers spoke Spanish.
{¶14} Although the footage shows that Officer Thompson stopped the WAT,
he testified at the hearing that the clues he observed were improper number of steps
taken and improper turn. He stated that Ponce-Suares “did okay” with maintaining
6 OHIO FIRST DISTRICT COURT OF APPEALS
his balance throughout the test.
{¶15} Officer Thompson testified on cross-examination that he was
comfortable with the HGN results, but the WAT was where he “start[ed] to become
uncomfortable” due to his inability to communicate with Ponce-Suares. Officer
Thompson explained that he did not include the WAT results on the administrative
license suspension (“ALS”) form, but the HGN result was included because he felt
comfortable with it. He clarified on redirect examination this was because a subject
must “perform something” in a WAT, in contrast to the HGN which “is present without
having [the subject] to perform anything.”
The Portable Breathalyzer Test (PBT)
{¶16} Officer Thompson testified that Ponce-Suares consented3 to the PBT,
which resulted in a blood alcohol level (“BAC”) of .170. He did not recall whether the
test was administered using Google Translate. He explained his understanding that
the PBT is an “investigatory tool and not a probable cause tool.”
The trial court denies Ponce-Suares’ motion to suppress.
{¶17} The trial court denied Ponce-Suares’ motion. It found that the HGN and
WAT were administered in substantial compliance with NHTSA standards and that
strict compliance or higher standard is not required. The trial court further found that
probable cause existed based on Ponce-Suares’ “bad driving,” as evinced by the MVR.
The court concluded that this, coupled with the strong odor of alcohol coming from
the vehicle and Ponce-Suares’ mouth, his bloodshot eyes, the six observed clues on the
HGN, and his difficulty with performing the WAT established probable cause to arrest
Ponce-Suares for OVI.
3 This is not reflected in the State’s video evidence, so the court only had testimony to rely on as to
whether Ponce-Suares consented to the PBT.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} After finding that the PBT results were “unnecessary,” the trial court
stated that it would not consider the PBT. It further stated that it could find no
authority suggesting that PBT results were admissible in the State’s case-in-chief, so it
did not believe the results of the PBT were admissible at trial, 4 nor could they establish
impairment under R.C. 4511.19(A)(1)(a).
Ponce-Suares pleads no contest to OVI
{¶19} Ponce-Suares pleaded no contest on October 29, 2024. On the OVI, the
trial court sentenced him to 180 days in jail with 177 days suspended, ordered him to
complete the driver’s intervention program, and imposed community control. The
court imposed a one-year driver’s license suspension, $110 in costs, $500 in fines, and
a $25 public defender fee. The trial court remitted the costs and fines on the
convictions for driving without a license and driving outside of marked lanes.
{¶20} This appeal followed.
II. Analysis
{¶21} Ponce-Suares states in his merit brief that he “appeals from his
convictions on the basis” of the denial of his motion to suppress.
A. Standard of Review
{¶22} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the
trial court assumes the role of trier of fact and, as such, is in the best position to resolve
questions of fact and evaluate witness credibility. Id. at ¶ 7. A reviewing court must
defer to the trial court’s factual findings if competent, credible evidence exists to
support the trial court’s findings. State v. Calo-Jiminez, 2023-Ohio-2562, ¶ 27 (1st
4 Counsel stated that there is a split on the case law, and this court had not considered the issue.
8 OHIO FIRST DISTRICT COURT OF APPEALS
Dist.).
{¶23} We review a trial court’s conclusions of law on a motion to suppress de
novo. Id. Accepting the trial court’s factual findings as true and without deference to
the conclusion of the trial court, the appellate court must independently determine
whether the facts satisfy the applicable legal standard. Id.
B. Ponce-Suares’ motion to suppress was properly denied.
{¶24} Under Crim.R. 47, motions—including motions to suppress evidence—
must state with particularity the assertions made and shall set forth the relief or order
sought. State v. Watterson, 2024-Ohio-5456, ¶ 38 (1st Dist.). When a defendant files
a motion to suppress FST results, the State’s burden varies depending on whether the
motion is specific or “shotgun.” State v. Parks, 2025-Ohio-191, ¶ 33, (1st Dist.),
quoting State v. Richards, 2016-Ohio-3518, ¶ 8 (1st Dist.). A “shotgun” motion
generally states the FST standards without identifying which, if any, of the guidelines
the officer failed to comply with. Id. In such a case, the burden on the State to establish
substantial compliance with those regulations is “general and slight.” Id.
{¶25} The accused who filed a “shotgun” motion, however, may shift the
burden from “general and slight” to “specific” by identifying facts that support his
allegations on cross-examination. Id., quoting Richards at ¶ 10. A defendant must
present a specific question of compliance as to each test to elevate the State’s burden
to substantial compliance. Id. at ¶ 36. The State then must show that clear and
convincing evidence reflects that the FSTs were performed in substantial compliance
with NHTSA requirements. Id., citing Richards at ¶ 16; see R.C. 4511.19(D).
{¶26} Clear and convincing evidence is the measure or degree of proof which
is more than a mere preponderance of the evidence but does not require the extent of
such certainty as with the reasonable-doubt standard. State v. Dickey, 2023-Ohio-
9 OHIO FIRST DISTRICT COURT OF APPEALS
705, ¶ 10 (1st Dist.). Errors that are excusable under the substantial-compliance
standard are characterized as minor procedural deviations. Burnside, 2003-Ohio-
5372, at ¶ 34. Otherwise, when a motion to suppress does not particularly state the
basis for relief, the issue is waived and cannot be argued on appeal. Watterson at ¶ 38.
{¶27} On appeal, Ponce-Suares asserts that Officer Thompson deviated from
NHTSA standards by (1) asking him to place his fists under his chin instead of
instructing him to keep his hands at his sides as mandated by NHTSA, (2) failing to
move the pen in compliance with NHTSA’s timing standard by holding it for four
seconds during the HGN at the appropriate angle as shown by the BWC footage, (3)
not checking each eye twice during the HGN, and (4) only completing nine passes, all
of which lasted for varying lengths of time. Ponce-Suares further asserts that the
instructions were not given in certified Spanish and that Google Translate translated
Officer Thompson’s question as to whether Ponce-Suares “wears” glasses or contacts
to “works with” glasses or contacts. Ponce-Suares further asserts that his continued
movement of his head during the HGN after replying, “[Y]es, mas o menos”—which is,
“yes, more or less” in English—demonstrates his “confusion” as to the instructions.
{¶28} Of the issues he raised on appeal regarding which standards Officer
Thompson deviated from, Ponce-Suares only specifically raised the language barrier,
Officer Thompson’s discomfort with the reliability of the WAT due to the language
barrier, and the deviation from the standard instructions on the HGN in his motion to
suppress. The remaining issues raised on appeal are, therefore, forfeited and this court
declines to advance an argument for Ponce-Suares as he failed to raise a plain-error
argument regarding these issues. See Watterson, 2024-Ohio-5456, at ¶ 30 (1st Dist.)
(Appellant forfeited her argument as to the results of the breathalyzer test on appeal
where she failed to challenge them in her motion to suppress); In re G.W., 2024-Ohio-
10 OHIO FIRST DISTRICT COURT OF APPEALS
1551, ¶ 24 (1st Dist.) (An appellate court need not advance a plain-error argument that
a party fails to raise on appeal).
Probable cause existed to arrest Ponce-Suares for OVI
{¶29} The standard for determining whether an officer had probable cause to
arrest a suspect for OVI is whether the facts and circumstances within the police
officer’s knowledge are sufficient to cause a reasonably prudent person to believe that
the defendant was driving under the influence. State v. Duncan, 2025-Ohio-1153, ¶ 24
(1st Dist.). In making this determination, an appellate court examines the totality of
facts and circumstances surrounding the arrest. Id.
{¶30} In State v. Ferguson, 2013-Ohio-5388, ¶ 14 (1st Dist.), this court stated
that an OVI entails driving a car after consuming alcohol in a quantity that adversely
and appreciably impairs the driver’s actions or mental processes and deprives him of
clearness of intellect and control of himself which he would otherwise have had. Id.
{¶31} Ponce-Suares asserts that, notwithstanding the fact that he smelled of
alcohol and had watery and bloodshot eyes, his alertness and cooperation with Officer
Thompson’s instructions gave no indication that his actions or mental processes were
appreciably impaired. He also argues that the alcohol smell is explained by the
passenger who admitted to drinking, the marked-lane violations he made were
“relatively minor,” and his nearly colliding with a police cruiser is “just as easily
explained by a distracted sober driver.” He further contends that the odor of alcohol
“does not necessarily give rise to probable cause to arrest for OVI in the absence of
other indicia of impairment.”
{¶32} The totality of the circumstances supports a finding that probable cause
existed to arrest Ponce-Suares for OVI. Any failure to instruct Ponce-Suares in
substantial compliance with NHTSA standards would not negate the other factors that
11 OHIO FIRST DISTRICT COURT OF APPEALS
existed during the stop, as FSTs are not necessary to establish probable cause to arrest
for an OVI. See State v. Sanders, 2014-Ohio-511, ¶ 10 (1st Dist.) (“The totality of the
facts and circumstances can support a finding of probable cause to arrest even without
evidence of field-sobriety tests.”).
{¶33} In Sanders, this court held that the trooper had sufficient facts within
his knowledge to warrant a prudent police officer to believe that Sanders had been
operating a motor vehicle while under the influence of alcohol where Sanders was
traveling 14 miles over the speed limit, weaved within his lane of travel, had
“bloodshot, glassy eyes,” an odor of alcohol emanated from the car and his breath even
after he got out of the car, and he admitted to consuming alcohol. Id. at ¶ 11-12.
{¶34} Ponce-Suares would like this court to conclude that this driving
behavior could be attributed to distracted driving. As in Sanders, however, Ponce-
Suares exhibited bad driving and there were other indicia of intoxication. Taking into
consideration Ponce-Suares’ traffic infractions along with the smell of alcohol coming
from his car and mouth, and his bloodshot, glassy eyes, the totality of the
circumstances provide sufficient indicia of intoxication to support probable cause to
arrest him for OVI even if the HGN or WAT were suppressed. See Cincinnati v. Bryant,
2010-Ohio-4474, ¶ 15 (1st Dist.) (Defendant’s driving in reverse in the wrong way on
a one-way street was “more suggestive of impairment” than a minor traffic violation);
Watterson, 2024-Ohio-5456, at ¶ 35 (1st Dist.), quoting State v. Fuqua, 2022-Ohio-
1952, ¶ 21 (1st Dist.) (“Evidence of a minor traffic infraction, the odor of alcohol, and
‘some reasonable indicia’ of impairment is sufficient to establish probable cause.”).
{¶35} Ponce-Suares asserts that the PBT was not relevant to determining
probable cause given its unreliability, and thus, should not be considered for purposes
of probable-cause review. This court, however, declines to address this argument as
12 OHIO FIRST DISTRICT COURT OF APPEALS
the trial court did not consider the PBT results in rendering its decision.
{¶36} Ponce-Suares’ sole assignment of error is overruled.
III. Conclusion
{¶37} Where Ponce-Suares almost ran his vehicle into a police cruiser,
committed marked lane infractions, had bloodshot and watery eyes, and smelled of
alcohol, FSTs were not necessary to establish probable cause to arrest him for OVI.
Having overruled Ponce-Suares’ challenges to his arrest, we affirm the trial court’s
judgments denying his motion to suppress and convicting him of the charged offenses.
Judgments affirmed.
CROUSE, P.J., and BOCK, J., concur.