[Cite as S. Euclid v. Bautista-Avila, 2015-Ohio-3236.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 102353




                              CITY OF SOUTH EUCLID
                                                               PLAINTIFF-APPELLANT

                                                         vs.

                        FRANCISCO BAUTISTA-AVILA
                                                               DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                       Criminal Appeal from the
                                     South Euclid Municipal Court
                                        Case No. TRC 1302336

        BEFORE:          Laster Mays, J., McCormack, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                              August 13, 2015
                                      -i-



ATTORNEY FOR APPELLANT

Brian M. Fallon
P.O. Box 26267
Fairview Park, Ohio 44126


ATTORNEYS FOR APPELLEE

Richard L. Fenbert
S. Michael Lear
Brian A. Murray
Larry W. Zukerman
Zukerman, Daiker & Lear Co., L.P.A.
3912 Prospect Avenue
Cleveland, Ohio 44115
ANITA LASTER MAYS, J.:

       {¶1} Plaintiff-appellant, city of South Euclid (“South Euclid”), appeals a decision

from the South Euclid Municipal Court that granted a motion to suppress standardized

field sobriety tests (“SFSTs”) results and ruled that the totality of the circumstances failed

to support probable cause to arrest the appellee, Francisco Bautista-Avila (“Bautista”).1

       {¶2} South Euclid presents two assignments of error. They first argue that the

trial court erred in finding that the SFSTs results were inadmissible. South Euclid

further argues that the trial court erred in finding that there was no probable cause for the

arrest of Bautista.

       {¶3} After a thorough review of the trial court record, we affirm.

Standard of Review

       {¶4} Appellate review of a trial court’s ruling on a motion to suppress evidence

presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71. During a hearing on a motion to suppress evidence,

the trial judge acts as the trier of fact and, as such, is in the best position to resolve factual

questions and assess the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366,

582 N.E.2d 972 (1992). An appellate court reviewing a motion to suppress is bound to


       1
        Bautista was also arrested for failure to have a valid driver’s license under the South Euclid
Codified Ordinance 335.071. That charge is still pending in the South Euclid Municipal Court.
accept the trial court’s findings of fact where they are supported by competent, credible

evidence. State v. Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993).

Accepting these facts as true, the appellate court independently reviews the trial court’s

legal determinations de novo. Cleveland v. Hunter, 8th Dist. Cuyahoga No. 91110,

2009-Ohio-1239, ¶ 23-25, citing Burnside at 158.

I.     Facts and Procedural Posture

       {¶5} On August 24, 2013, Bautista’s vehicle was randomly stopped by the South

Euclid Police Department at a sobriety checkpoint.       When Officer Robert Baldyga

(“Baldyga”) approached the vehicle, he noticed a moderate odor of alcohol coming from

the vehicle.   After observing several open beer bottles in the back seat of the vehicle,

Baldyga asked Bautista if he had been drinking alcohol, to which Bautista replied that he

had. Baldyga then asked Bautista to exit the vehicle so SFSTs could be administered on

him.

       {¶6} Three SFSTs were administered:         the horizontal gaze nystagmus test

(“HGN”), the walk-and-turn test (“WAT”), and the one-leg stand test (“OLS”).         Each

was administered by Baldyga, who was the contact officer at the checkpoint.     After the

administration of the SFSTs, Baldyga placed Bautista under arrest and charged him with

operating a motor vehicle while under the influence in violation of South Euclid Codified

Ordinance 333.01(A)(1)(a).

       {¶7} Bautista filed a motion to suppress the evidence arguing that the SFSTs were

not administered in substantial compliance with the guidelines established by the National
Highway Traffic Safety Administration (“NHTSA”), and that Baldyga lacked probable

cause to arrest him.

       {¶8} At the conclusion of the suppression hearing, the trial court agreed with

Bautista and determined that Baldyga did not follow the proper procedures when

administering the SFSTs in accordance with the NHTSA, and that he did not have

sufficient probable cause to arrest Bautista.   South Euclid filed a timely appeal.

II.    Law and Analysis

       A.     Sobriety Field Tests

       {¶9} In accordance with R.C. 4511.19(D)(4)(b), an officer may testify “concerning

the results of the field sobriety test” if he substantially complies with the testing

standards. In seeking to suppress the results of a breath analysis or field sobriety test,

the defendant must set forth an adequate basis for the motion.    State v. Shindler, 70 Ohio

St.3d 54, 58, 636 N.E.2d 319 (1994). The motion must state the “legal and factual bases

with sufficient particularity to place the prosecutor and court on notice as to the issues

contested.”   Id.   Once an adequate basis for the motion has been established, the

prosecutor then bears the burden of proof to demonstrate substantial compliance with the

Ohio Department of Health (“ODH”) regulations. Xenia v. Wallace, 37 Ohio St.3d 216,

220, 524 N.E.2d 889 (1988).     If the prosecutor demonstrates substantial compliance, the

burden of proof then shifts to the defendant to overcome the presumption of admissibility

and demonstrate that he was prejudiced by anything less than strict compliance.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71 at ¶ 24; Hunter, 8th Dist.
Cuyahoga No. 91110, 2009-Ohio-1239, at ¶ 23-25.

       {¶10} Baldyga testified at the motion hearing that he performed three SFSTs on

Bautista including, the HGN, the WAT, and the OLS tests.             All of the tests were

videotaped by Sergeant Abel of the South Euclid Police Department and were shown to

the trial court during this hearing.

       i.      Horizontal Gaze Nystagmus Test

       {¶11} According to the NHTSA Standardized Field Sobriety Testing Appendix A

online manual, when testing the HGN, the officer should look for three indicators, “(1) if

the eye cannot follow a moving object smoothly, (2) if jerking is distinct when the eye is

at maximum deviation, and (3) if the angle of onset of jerking is within 45 degrees of

center.”    National Highway Traffic Safety Administration, Standardized Field Sobriety

Testing, http://www.nhtsa.gov/ people/injury/alcohol/SFST/appendix_a.htm (accessed

June 22, 2015). Additionally, the manual also gives officers detailed instructions on

how to test for each of the three indicators.    For the first indicator, the NHTSA DWI

Detection and Standardized Field Sobriety Testing Manual instructs officers to hold a

stimulus 12-15 inches from the nose of the subject slightly above eye level and check that

the size of the pupils is equal and not jerking back and forth. Then the officer should

ask the subject to follow the stimulus from left to right with their eyes only, keeping their

head still. For the second indicator, the officer should instruct the subject to hold each

eye at the maximum deviation for a minimum of four seconds, and check that each eye

can hold without jerking. For the third and final indicator, the officer shall instruct the
subject to move their eyes slowly from the center to a 45-degree angle without significant

jerking.   National Highway Traffic Safety Administration, DWI Detection and

Standardized Field Sobriety Testing Student Manuel, Section I, at X-2 (Aug. Ed. 2006).

       {¶12}   During the hearing, Baldyga testified about the procedures that he used to

determine whether Bautista was under the influence of alcohol.     First he testified about

the steps he took to conduct the HGN test on Bautista.          Several procedures were

incorrectly stated and also incorrectly performed. Baldyga testified that he used his

flashlight as the stimulus and held it 12-15 inches away from Bautista at eye level. He

was supposed to hold the flashlight above the eye.

       {¶13} Baldyga’s administration of the SFSTs was videotaped for the trial court to

observe. The video evidence was not consistent with Baldyga’s testimony. The video

first showed Baldyga flashing a pen light into Bautista’s eyes. He then instructs Bautista

to keep his head still and follow the pen light with his eyes only, not moving his head.

Bautista then shines the flashlight left and right a few times and then up and down.

After which, he concludes the HGN test.    He never asks Bautista to move his eyes from

the center of his nose to maximum deviation. He also does not check if Bautista can

hold his eyes at the maximum deviation for a minimum of four seconds.

       {¶14} Next Baldyga testified that when he administered the HGN on Bautista, he

was looking for three parts:    the horizontal nystagmus, resting nystagmus, and the

vestibular nystagmus.   These are not the three parts stated in the manual.   Baldyga then

testified that after looking for these three parts, he checked the sustained maximum
deviation that takes place “when you no longer see the white in the corner of his eye.”

The attorney for Bautista asked Baldyga several times what he was looking for on the

HGN. Each time Baldyga answered that he was looking for nystagmus, but he could not

define what is nystagmus. Baldyga was unaware of how to determine nystagmus or the

other clues he was supposed to look for. According to the NHTSA, he was supposed to

look for lack of smooth pursuit in each eye.       When asked repeatedly about indicators he

was supposed to look for, he never testified about looking for lack of smooth pursuit.

For the third clue, Baldyga did not testify that he had Bautista move his eyes slowly from

the center to a 45-degree angle.         This was consistent with the video.      In the video,

Baldyga never checked for sustained maximum deviation.             He also testified that he did

not recall when he first saw a nystagmus in Bautista’s eyes. Given Baldyga’s testimony

and the video evidence, the trial court concluded that he did not substantially comply with

the testing standards set forth by the NHTSA.

         ii.      Walk-and-Turn Test

         {¶15} According to the NHTSA manual, “in the Walk-and-Turn test, the subject is

directed to take nine steps, heel-to-toe, along a straight line.     After taking the steps, the

suspect must turn on one foot and return in the same manner in the opposite direction.”

National Highway Traffic Safety Administration, Standardized Field Sobriety Testing,

http://www.nhtsa.gov/ people/injury/alcohol/SFST/appendiz_a.htm (accessed June 22,

2015).         While the suspect is performing the test, the officer or examiner is looking for

eight indicators of impairment.       These indicators are, “if the suspect cannot keep balance
while listening to the instructions, begins before the instructions are finished, stops while

walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to

balance, makes an improper turn, or takes an incorrect number of steps.” Id. In his

testimony, Baldyga stated that there were six clues that he looked for the night Bautista

performed this test.   He named only three.       When asked about this discrepancy, he

testified that there were three clues to look for while the suspect walked down the line,

“and then three clues on the way back.”    When asked for clarification, he stated, “there’s

a total of three on his approach towards his turn and I’m then looking for the same three

on his return.”   Baldyga testified that the three clues he was looking for were “if he

raises his arms, doesn’t touch heel to toe, and if he steps off the line.” He did not

mention the other five indicators, and only two of the three indicators he stated during his

testimony were correct.    The trial court concluded that Baldyga did not substantially

comply with the testing standards outlined by the NHTSA manual.

       iii.   One-Leg Stand Test

       {¶16} Baldyga then asked Bautista to perform the OLS test. According to the

NHTSA manual, there are four indicators of impairment.       These include, “swaying while

balancing, using arms to balance, hopping to maintain balance, and putting the foot

down.” Id. During his testimony, Baldyga acknowledged that there were four indicators

of impairment. However he wrote down and testified that one of the indicators that

Bautista was under the influence of alcohol was that Bautista kept looking at his toe.

When asked if that was an official indicator, Baldyga responded that it was not one of the
NHTSA clues, but his own indicator. According to his testimony, he never told Bautista

that he could not look at his toe or to stop looking at his toe. Baldyga created his own

standards and indicators of impairment that are not in line with the official indicators.

The trial court concluded that Baldyga did not substantially comply with the testing

standards created by the NHTSA.

       B.      Probable Cause to Arrest

       {¶17} South Euclid asserts in its second assignment of error that the trial court

erred in finding that there was no probable cause for the arrest of Bautista.    An officer

may arrest a suspect without a warrant when he has probable cause to believe that the

suspect was operating a motor vehicle under the influence of alcohol.              State v.

Henderson, 51 Ohio St.3d 54, 554 N.E.2d 104 (1990). “Probable cause exists when the

arresting officer has sufficient information from a reasonably trustworthy source to

warrant a prudent person in believing that the suspect has committed or was committing

the offense.” State v. Otte, 74 Ohio St.3d 555, 559, 660 N.E.2d 711 (1996). “Probable

cause ‘has come to mean more than bare suspicion,’ but ‘less than evidence which would

justify condemnation’ or conviction.” United States v. Thomas, 11 F.3d 620, 627 (6th

Dist.1993), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed.

1879 (1949).

       {¶18}       “[E]ach ‘drunken driving’ case is to be decided on its own particular and

peculiar facts.”    (Emphasis omitted.) Mentor v. Giordano, 9 Ohio St.2d 140, 146, 224

N.E.2d 343 (1967).       The court is to examine all the facts and circumstances when
deciding the issue of probable cause to support a warrantless arrest for drunk driving.

State v. Tate, 40 Ohio App.3d 186, 187, 532 N.E.2d 167 (11th Dist.1987).         When an

officer uses the results of SFSTs to serve as evidence of probable cause to arrest, the

officer is responsible for substantially complying with the standardized testing

procedures.     “[E]ven minor deviations from the standardized procedures can bias the test

results.”     Quoting from an NHTSA manual, we stress that “if any one of the

standardized field sobriety test elements is changed, the validity is compromised.” State

v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶ 7, quoting State v.

Homan, 89 Ohio St.3d 421, 425, 732 N.E.2d 952 (2000).

       {¶19} Bautista was arrested for operating a vehicle while under the influence of

alcohol. Baldyga determined from the results of the SFSTs that Bautista had consumed

alcohol beyond the legal limit for operating a vehicle.       However these results were

unreliable because Baldyga did not administer the SFSTs with substantial compliance.

On each of the three tests that Baldyga administered, he was mistaken about what

indicators of impairment he was testing for, changed the indicators of impairment to

include his own, and did not give correct instructions to Bautista. Therefore, SFSTs

cannot be used as evidence of probable cause to arrest.

       {¶20} Nevertheless, when the SFSTs results are considered to be unreliable, “an

officer may now testify concerning the results of a field sobriety test administered in

substantial compliance with the testing standards.” Schmitt at ¶ 82.      Baldyga testified

that Bautista was stopped and pulled over as he was driving his vehicle during a routine
sobriety checkpoint. Bautista was not observed driving erratically, but when Baldyga

approached Bautista’s vehicle, he testified that he smelled a moderate odor of alcohol

coming from Bautista and saw open bottles in the back seat. Baldyga asked Bautista to

step out of his vehicle so he could initiate SFSTs. Baldyga stated Bautista “stumbled as

he exited the vehicle.” This interaction was not on the videotape. From this point until

the end of the SFSTs, Baldyga’s administration of the SFSTs was videotaped for the trial

court to observe.     After watching the video of the SFSTs, the trial court noted that “the

defendant’s conduct and appearance shown on the videotape do not include any loss of

balance or other characteristics common to an impaired individual.”            S. Euclid v.

Bautista, Garfield M.C. No. TRC 1302336 (Dec. 5, 2014).         The trial judge “is therefore

in the best position to resolve factual questions and evaluate the credibility of witnesses.”

 State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100, quoting

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, citing State v.

Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Even without the videotape,

Baldyga’s testimony did not give credence to the trial court that there was probable cause

to arrest Bautista.

       C.      Conclusion

       {¶21} Baldyga did not substantially comply with the testing standards set forth by

the NHTSA, nor did he have probable cause to arrest Bautista for operating a motor

vehicle while under the influence of alcohol.       Bautista did not display any signs that

he was impaired by alcohol, he complied with the SFSTs incorrectly administered by
Baldyga, and he was not observed driving erratically. His speech was not slurred, he did

not fall to the ground, nor did he sway or stumble. Baldyga’s testimony was inconsistent

with the video evidence, and his testimony contained a number of contradictions and

incorrect procedures.   South Euclid argues that because Bautista admitted that he was in

the United States illegally, Baldyga had probable cause to arrest him. Baldyga did not

arrest Bautista for illegal immigration. Bautista was not charged with being in the

country illegally. This argument is off the mark and has no merit. He was arrested and

charged with operating a motor vehicle under the influence.        It has not been shown,

proven that Bautista was under the influence when he was arrested and charged.

      {¶22} This court is acutely aware of the peril that impaired driving poses to the

community.    We regularly affirm properly prosecuted cases of OVI.      Our function, post

trial, is to review the appealed decision, to ensure that due process was properly applied.

We will not, we do not, we cannot be compliant in the faulty prosecution of a case that

results from improper, prejudicial gathering of evidence.

      {¶23} Therefore the appellant’s assignments of error are overruled.

      {¶24} We affirm the decision of the South Euclid Municipal Court.

      It is, therefore, ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the South

Euclid Municipal Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

TIM McCORMACK, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
