[Cite as State v. Salyer, 2013-Ohio-140.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 9-12-29 

 v. 

STEPHEN M. SALYER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion Municipal Court 

Trial Court No. TRC 11 7483 

Judgment Affirmed 

Date of Decision: January 22, 2013 

 

APPEARANCES: 

J.C. Ratliff and Jeff Ratliff for Appellant 

Steven E. Chaffin for Appellee 
Case No. 9-12-29 

-2- 

SHAW, J.

{¶1} Defendant-appellant Stephen M. Salyer (“Salyer”) appeals the 

judgment of the Marion Municipal Court sentencing him to 90 days in jail, with 87 

suspended, after Salyer was found guilty of OVI in violation of R.C. 

4511.19(A)(1)(a) following Salyer’s plea of no contest to the charge. For the 

reasons that follow, we affirm the judgment of the trial court. 

{¶2} On September 17, 2011, at approximately 1:39 a.m., Trooper David 

Shockey observed a vehicle make a left turn without signaling and initiated a 

traffic stop. Trooper Shockey approached the vehicle and learned that Salyer was 

the driver. While speaking with Salyer, Trooper Shockey detected a “moderate 

odor” of an alcoholic beverage and Trooper Shockey observed that Salyer’s eyes 

were glassy, though not bloodshot. According to Trooper Shockey, Salyer was 

very talkative, and Salyer admitted to having a rum and coke approximately three 

hours prior to the stop. 

{¶3} Subsequently Trooper Shockey asked Salyer to exit his vehicle in 

order to perform field sobriety tests. Trooper Shockey first administered the HGN 

test, observing two clues of impairment in each of Salyer’s eyes. Trooper 

Shockey then administered an alphabet test, the one legged Stand test, and the 

walk and turn test. Salyer did not complete the one leg stand test. According to 

Trooper Shockey, Salyer said of the one leg stand test “well, I couldn’t do that 
Case No. 9-12-29 

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so...[.]” (Tr. at 23). Trooper Shockey indicated that Salyer caught himself just 

before he said “sober” and said instead later on “well, I couldn’t do that—you can 

come and find me at 3:00 tomorrow afternoon I couldn’t do that test.” (Id.) 

Trooper Shockey stated that he observed one clue of impairment on the walk and 

turn test. Taking into consideration the clues on the tests and his observations of 

Salyer, Trooper Shockey then arrested Salyer. 

{¶4} Salyer was taken to the Multi-County jail and asked to submit to a 

breath test on the Datamaster. Salyer did so and his BAC registered at .093, in 

excess of the legal limit. Salyer was ultimately charged with OVI in violation of 

R.C. 4511.19(A)(1)(a), and (A)(1)(d), and making a left turn without the use of a 

turn signal in violation of R.C. 4511.39. (Doc. 1). 

{¶5} On September 20, 2011, Salyer pled not guilty to the charges, waived 

his speedy trial rights, and demanded a jury trial. (Doc. 4). 

{¶6} On December 8, 2011, Salyer filed a twenty-two page motion to 

suppress challenging the stop, his detainment, the field and breath tests, and his 

arrest. (Doc. 11). 

{¶7} On December 27, 2011, the State filed a motion to limit or strike 

Salyer’s motion to suppress on the grounds that it was untimely. (Doc. 13). 
Case No. 9-12-29 

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{¶8} On December 28, 2011, the trial court denied the State’s motion to 

strike, adding that the State’s motion to limit Salyer’s motion to suppress would be 

addressed at the hearing on the motion to suppress. (Doc. 14). 

{¶9} On December 29, 2011, the trial court held a hearing on the motion to 

suppress. At the hearing, Salyer, through counsel, narrowed the issues from the 

motion to suppress that would be challenged in the hearing. Salyer’s counsel 

specifically challenged “[c]ompliance with NHTSA on the administration of the 

field sobriety testing, reasonable suspicion to detain further after the stop, probable 

cause to arrest, lack of Miranda upon arrest and – and the results of the breath test 

machine.” (Dec. 29, 2011, Tr. at 4). 

{¶10} The State called Trooper Shockey who testified to his credentials, 

experience, and the events as described above. Salyer’s counsel cross-examined 

Trooper Shockey, but the hearing was ultimately continued to hear further 

testimony. 

{¶11} On February 16, 2012, the hearing resumed. At the hearing, Trooper 

Benjamin Addy of the State Highway Patrol in Marion County explained the 

calibration procedures for the DataMaster. Trooper Addy also testified that he 

was the person that calibrated the breath machine on September 11, 2011, and 

September 18, 2011, the week prior to and the day after Salyer’s breath test. (Tr. 
Case No. 9-12-29 

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91, 93). At the conclusion of Trooper Addy’s testimony, the State rested. No 

witnesses were called by Salyer. 

{¶12} On March 28, 2012, the trial court overruled Salyer’s motion to 

suppress. As part of this ruling, the trial court cited the testimony of Trooper 

Shockey and Trooper Addy and the video of the stop as support for overruling the 

motion. 

{¶13} On April 9, 2012, Salyer changed his plea of not guilty and entered a 

plea of no contest, with a stipulated finding of guilty. (Doc. 59). The trial court 

accepted this plea and sentenced Salyer to 90 days in jail, with 87 suspended.1

 

(Id.) 

{¶14} It is from this judgment that Salyer appeals, asserting the following 

assignment of error for our review. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED IN DENYING DEFENDANT’S 

MOTION TO SUPPRESS EVIDENCE AS (1) THE OFFICER 

DID NOT POSSESS A REASONABLE AND ARTICULABLE 

SUSPICION JUSTIFYING THE CONTINUED DETENTION 

OF THE DEFENDANT BEYOND THE SCOPE OF THE 

INITIAL STOP; (2) THE FIELD SOBRIETY TESTS AND 

CHEMICAL TEST WERE NOT DONE IN SUBSTANTIAL 

COMPLIANCE WITH NHTSA OR ITS EQUIVALENT AND 

THE OHIO DEPARTMENT OF HEALTH RULES AND 

REGULATIONS; (3) THE OFFICER DID NOT POSSESS A 

REASONABLE AND ARTICULABLE SUSPICION 

JUSTIFYING THE ADMINISTRATION OF FIELD 

SOBRIETY TESTS; AND (4) THE OFFICER DID NOT 

 

1

 Salyer was also sentenced to pay a $1,000 fine, with $625.00 suspended, Salyer’s license was suspended 

for six months, and Salyer was ordered to attend a driver intervention program. (Doc. 59). 
Case No. 9-12-29 

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POSSESS PROBALE CAUSE TO ARREST THE 

DEFENDANT. 

{¶15} In his assignment of error, Salyer argues that the trial court erred in 

overruling his motion to suppress. Salyer asserts four specific grounds to support 

his contention. 

{¶16} Initially, we note that appellate review of a decision on a motion to 

suppress evidence presents a mixed question of law and fact. State v. Bressler, 3d 

Dist. No. 15–05–13, 2006–Ohio–611. At a suppression hearing, the trial court 

assumes the role of trier of fact and is in the best position to resolve factual 

questions and evaluate the credibility of witnesses. State v. Carter, 72 Ohio St.3d 

545, 552 (1995). When reviewing a trial court’s decision on a motion to suppress, 

an appellate court must uphold the trial court’s findings of fact if they are 

supported by competent, credible evidence. State v. Dunlap, 73 Ohio St.3d 308, 

314 (1995). We must defer to “the trial court’s findings of fact and rely on its 

ability to evaluate the credibility of the witnesses,” and then independently review 

whether the trial court applied the correct legal standard. State v. Anderson, 100 

Ohio App.3d 688, 691 (4th Dist.1995). 

{¶17} In Salyer’s first and third grounds for contending the trial court erred 

in overruling his motion to suppress, Salyer argues that his continued detention 

exceeded the scope and duration of the stop, and that Trooper Shockey did not 

have reasonable, articulable suspicion to conduct field sobriety tests. The State 
Case No. 9-12-29 

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contends Trooper Shockey had reasonable, articulable suspicion that Salyer was 

engaged in criminal activity (OVI) that would justify Salyer’s continued detention 

and the administration of the field sobriety tests. 

{¶18} When conducting a stop of a motor vehicle for a traffic violation, an 

“officer may detain an automobile for a time sufficient to investigate the 

reasonable, articulable suspicion for which the vehicle was initially stopped.” State 

v. Smith, 117 Ohio App.3d 278, 285, 690 N.E.2d 567 (1st Dist.1996). However, 

the duration of the stop “is limited to ‘effectuate the purpose for which the initial 

stop was made.’” Id., quoting State v. Venham, 96 Ohio App.3d 649, 655 (4th 

Dist.1994), citing United States v. Brignoni–Ponce, 422 U.S. 873 (1975); State v. 

Chatton, 11 Ohio St.3d 59, 63 (1994). “Thus, when detaining a motorist for a 

traffic violation, an officer may delay the motorist for a time period sufficient to 

issue a ticket or a warning.” Smith at 285, citing State v. Keathley, 55 Ohio 

App.3d 130 (2d Dist.1998). This time period also includes the period of time 

sufficient to run a computer check on the driver’s license, registration, and vehicle 

plates. See Delaware v. Prouse, 440 U.S. 648, 659 (1979). 

{¶19} The detention of a stopped driver may continue beyond the time 

frame necessary to conduct the stop for purposes of the traffic violation when 

“additional facts are encountered that give rise to a reasonable, articulable 

suspicion [of criminal activity] beyond that which prompted the initial stop[.]” 
Case No. 9-12-29 

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Smith at 285, citing State v. Myers, 63 Ohio App.3d 765, 771 (2nd Dist.1990); 

Venham at 655. Reasonable articulable suspicion exists when there are “‘specific 

and articulable facts which, taken together with rational inferences from those 

facts, reasonably warrant the intrusion.’” State v. Stephenson, 3d Dist. No. 14-04-

08, 2004-Ohio-5102, ¶ 16, quoting State v. Bobo, 37 Ohio St.3d 177, 178 (1988). 

{¶20} An officer’s request to perform field sobriety tests must be separately 

justified by specific, articulable facts showing a reasonable basis for the request. 

State v. Evans, 127 Ohio App.3d 56, 62-63 (11th Dist.1998), citing Yemma, supra. 

“Although the facts that served as the impetus for the stop may also assist in 

providing this separate justification, additional articulable facts are necessary.” Id. 

{¶21} Whether a law enforcement officer possessed reasonable suspicion or 

probable cause to continue to detain an individual must also be examined in light 

of the “totality of the circumstances.” State v. Cromes, 3d Dist. No. 17-06-07, 

2006-Ohio-6924, ¶ 38, citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 

744 (2002). The totality of the circumstances test “allows officers to draw on their 

own experience and specialized training to make inferences from and deductions 

about the cumulative information available to them that ‘might well elude an 

untrained person.’” Id., citing Arvizu, 534 U.S. at 273, quoting United States v. 

Cortez, 449 U.S. 411, 418, 101 S.Ct. 690 (1981). 
Case No. 9-12-29 

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{¶22} Circumstances from which an officer may derive a reasonable, 

articulable suspicion that the detained driver was operating the vehicle while under 

the influence include, but are not limited to: 

(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. 

Evans, 127 Ohio App.3d at 63, Fn. 2. “All of these factors, together with the 

officer’s previous experience in dealing with [impaired] drivers, may be taken into 

account by a reviewing court in determining whether the officer acted reasonably. 

No single factor is determinative.” Id. 

{¶23} At the suppression hearing, Trooper Shockey testified that he 

stopped Salyer’s vehicle at approximately 1:39 a.m. on September 17, 2011, for 

failing to use a left turn signal when turning left. Trooper Shockey testified that 
Case No. 9-12-29 

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when he spoke with Salyer, Trooper Shockey detected a “moderate” odor of an 

alcoholic beverage. According to Trooper Shockey, Salyer was very talkative and 

Salyer admitted to consuming a rum and coke approximately three hours prior to 

the stop. Trooper Shockey testified that Salyer’s eyes were glassy, though not 

bloodshot. 

{¶24} The trial court cited the time, odor of an alcoholic beverage, glassy 

eyes, and admission of the consumption of alcohol as support for Trooper 

Shockey’s detainment of Salyer in its entry denying Salyer’s motion to suppress.2

 

(Doc. 46). 

{¶25} Based on the evidence in the record, we conclude that Trooper 

Shockey encountered additional facts to give rise to a reasonable, articulable 

suspicion of criminal activity beyond that which prompted the initial stop. We 

further conclude that Trooper Shockey’s reasonable, articulable suspicion that 

Salyer was driving while impaired justified the prolonged detention to administer 

the field sobriety tests. Accordingly, we find no error with the trial court’s 

decision to overrule Salyer’s motion to suppress on either of these bases. 

{¶26} As the next ground for contending that the trial court erred in 

overruling his motion to suppress, Salyer argues that the field sobriety tests and 

 

2

 The trial court also cited the fact that Salyer pulled over on the wrong side of the road. (Id.) On appeal, 

Salyer argues that he pulled over on the wrong side of the road out of convenience/necessity. The video of 

the stop does indicate that Salyer pulled over on the left side of the road; however, the video also illustrates 

that cars were parked all along the right side of the road, thus there is no indication as to whether this action 

was done out of necessity or convenience. 
Case No. 9-12-29 

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the chemical breath test were not administered in substantial compliance with the 

applicable guidelines, and therefore the results from these tests should have been 

suppressed. 

{¶27} In order for the results of field sobriety tests to be admissible, the 

State is not required to show strict compliance with testing standards, but must 

instead demonstrate that the officer substantially complied with NHTSA 

standards. R.C. 4511.19(D)(4)(b); State v. Clark, 12th Dist. No. CA2009-10-039, 

2010-Ohio-4567, ¶ 11. “A determination of whether the facts satisfy the 

substantial compliance standard is made on a case-by-case basis.” State v. Fink, 

12th Dist. Nos. CA2008-10-118, CA2008-10-119, 2009-Ohio-3538, ¶ 26. The 

State may demonstrate what the NHTSA standards are through competent 

testimony and/or by introducing the applicable portions of the NHTSA manual. 

State v. Boczar, 113 Ohio St.3d 148, 153, 2007-Ohio-1251, at ¶ 28. 

{¶28} At the suppression hearing and on appeal, Salyer does not identify 

specific errors with Trooper Shockey’s administration of the field sobriety tests, in 

light of NHTSA or other applicable guidelines, but nevertheless Salyer argues that 

suppression of the test results is warranted.3

 

{¶29} Regarding the Field Sobriety Tests, the trial court’s entry denying the 

motion to suppress stated the following: 

 

3

 At the suppression hearing, Salyer did seem to question the fact that Trooper Shockey administered an 

“alphabet test” to Salyer after the HGN and before the other tests, but he does not renew this argument on 

appeal. 
Case No. 9-12-29 

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 In this case, Defendant Salyer contends that the field 

sobriety tests were not conducted in substantial compliance with 

NHTSA standards. Trooper Shockey testified that he 

administered standardized field sobriety tests which included 

the HGN, the One-Leg Stand and the Walk and Turn Tests. In 

explaining his administration of the HGN test, Shockey stated 

that he checked for visual or other distractions, and he checked 

for eyeglasses. He further testified as to how he positioned the 

stimulus and that he detected 4 clues while checking for lack of 

smooth pursuit and 4 clues while checking for distinct 

nystagmus at maximum deviation.4

 Shockey did not detect any 

clues on the onset of nystagmus prior to 45 degrees. Finally, 

Trooper Shockey stated that he administered the HGN “as 

explained in the manual”. 

 On the One-Leg Stand test, Trooper Shockey testified, and 

the video revealed, as to how he set up the test conditions and 

how he instructed and positioned the defendant. When the 

trooper instructed the defendant to begin, he could not perform 

the test and stated, “I couldn’t do this even if I was 

sob.....(sober)[.]” He continually touched the ground with his 

foot. Shockey testified that he found that the defendant could 

not perform the test, but did not offer any number of clues that 

he detected. 

 On the Walk and Turn, Trooper Shockey’s testimony and 

the video revealed that he set up the test conditions and that he 

explained and demonstrated the test asking questions as to the 

defendant’s understanding of the instructions. Thereafter, 

Shockey testified that he detected 1 clue, but the video actually 

recorded 2 clues: stepped off the line and used arms to balance, 

lifting them more than six inches from his side. 

 

4

 We note that it is not clear whether the trial court’s characterization directly corresponds to Trooper 

Shockey’s testimony. Trooper Shockey testified, “Yes, I observed a total of four clues, two in each eye, I 

observed a nystagmus, maximum deviation and lack of smooth pursuit. I did not observe nystagmus prior 

to 45 degrees.” (Tr. at 21). However, even if the trial court’s characterization is improper—for example, if 

the trial court was stating there were 4 clues in each eye (which is not possible as there are only 6 clues 

total, 3 in each eye)—any misstatement would not change the outcome here. The HGN results were not 

considered by the trial court. 
Case No. 9-12-29 

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 Based on the testimony and evidence presented, the Court is 

unable to find clear and convincing evidence that Trooper 

Shockey administered the HGN test in substantial compliance 

with NHTSA standards. However, the Court finds clear and 

convincing evidence that the One-Leg Stand and Walk and Turn 

tests were administered in substantial compliance.

(Doc. 46). 

{¶30} Thus the trial court found that the HGN test was not done in 

compliance with NHTSA standards but the one leg stand and walk and turn test 

were conducted in substantial compliance with recognized standards. The record 

supports the trial court’s findings. Trooper Shockey testified at the suppression 

hearing that he received Alcohol Detection and Prosecution (ADAP) training and 

that he administered the tests according to the NHTSA manual. (Tr. at 16, 20, 22-

23). 

{¶31} Even assuming arguendo that we find that Trooper Shockey did not 

substantially comply with NHTSA or other applicable standards—which would 

require the results of the tests to be excluded—Trooper Shockey’s testimony 

regarding Salyer’s performance on nonscientific field sobriety tests is admissible 

under Evid.R. 701 and can support a finding of probable cause to arrest under the 

totality of the circumstances analysis. See State v. Schmitt, 101 Ohio St.3d 79, 

2004-Ohio-37, ¶¶ 14-15. Notwithstanding this fact, we find no error in the trial 

court’s conclusion that the State met its burden in demonstrating that Trooper 
Case No. 9-12-29 

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Shockey’s administration of the one-leg stand and walk and turn tests substantially 

complied with NHTSA standards.5

{¶32} Next, Salyer challenges the admissibility of the results from the 

breath analysis test and asserts that the State failed to demonstrate that the test was 

conducted in substantial compliance with the regulations prescribed by the 

Director of the Ohio Department of Health. Specifically Salyer argues the State 

failed to show that Salyer’s test was conducted free of any radio frequency 

interference (“RFI”). Salyer also argues that the State did not establish that it had 

kept three years of records on the Datamaster as required by the Ohio Department 

of Health Rules. 

{¶33} In seeking to suppress the results of a breath analysis test, the 

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

Ohio St.3d 54, 58, 1994-Ohio-452. 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; Crim.R. 47. Once an adequate basis for the 

motion has been established, the prosecution then bears the burden of proof to 

demonstrate substantial compliance with the Ohio Department of Health 

regulations. Xenia v. Wallace, 37 Ohio St.3d 216, 220 (1988). If the prosecution 

demonstrates substantial compliance, the burden of proof then shifts to the 

 

5

 As the court found that the HGN test was not done in substantial compliance with recognized guidelines, 

we need not conduct a similar analysis regarding this test. 
Case No. 9-12-29 

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defendant to overcome the presumption of admissibility and demonstrate that he 

or she was prejudiced by anything less than strict compliance. State v. Burnside, 

100 Ohio St.3d 152, 157, 2003-Ohio-5372, ¶ 24. 

{¶34} The extent of the State’s burden to show substantial compliance 

varies with the degree of specificity of the violation alleged by the defendant. 

“When a defendant’s motion to suppress raises only general claims, along with the 

Ohio Administrative Code sections, the burden imposed on the state is fairly 

slight.” State v. Johnson, 137 Ohio App.3d 847, 851 (2000). Specifically, when a 

motion fails to allege a fact-specific way in which a violation has occurred, the 

state need only offer basic testimony evidencing compliance with the code section. 

State v. Bissaillon, 2d Dist. No. 06–CA–130, 2007-Ohio-2349, ¶ 15. 

{¶35} Salyer’s motion to suppress did allege that Trooper Shockey did not 

ensure that Salyer’s test was conducted free of any radio transmissions from 

within the affected RFI zone. Salyer’s counsel also raised this issue at the 

suppression hearing and questioned Trooper Shockey regarding RFI interference 

on cross-examination. On direct-examination at the suppression hearing, Trooper 

Shockey testified that he was a Senior Operator with authority to perform testing 

on the BAC Datamaster. (Tr. at 17). On cross-examination, Salyer’s counsel 

specifically questioned Trooper Shockey regarding potential RFI interference. 
Case No. 9-12-29 

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What follows is testimony that was elicited from Trooper Shockey on crossexamination: 

Q: [Defense on Cross-examination] There are two people at all 

times in the Multi-County booking room, correct? 

A: [Trooper Shockey] No. 

Q: No. It’s not their policy to have two people in the booking 

room? 

A: I’m not – I don’t know what their policy is, but I know what 

the reality of things are. 

Q: Okay. That night in question how many people were in the 

booking room. 

A: I have no clue, I don’t remember. 

Q: Okay. So there could have been two, correct? 

A: There could have been. 

Q: Okay. And they wear radios, correct? 

A: Correct. 

Q: And they – according to their policy they don’t turn those 

radios off because – in case of an emergency at the jail and 

they’re required to respond, correct? 

A: Correct. 
Case No. 9-12-29 

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Q: Okay. So upon administering the test you didn’t ask either 

one of them to leave, did you? 

A: No. 

Q: Okay. And upon administering the test I didn’t hear any 

testimony that your radio was off? 

A: I don’t know if it was or wasn’t. 

(Tr. 66-67). 

{¶36} The State’s other witness, Trooper Addy, also offered some 

testimony regarding RFI related to the Datamaster in question. Trooper Addy 

testified that he performed the RFI check on the Datamaster September 11, 2011, 

at approximately 7:27, within the weekly range of testing. (Tr. at 107). Trooper 

Addy testified that the Datamaster was functioning properly. Trooper Addy also 

testified that he performed the weekly check on September 18, 2011, after Salyer’s 

test, and that machine was functioning properly. 

{¶37} While Salyer argues on appeal that Trooper Shockey did not insure 

that no RFI interference was present during testing, the preceding testimony does 

not affirmatively establish that there was RFI interference in Salyer’s test. First, 

whereas on appeal Salyer argues that two other officers were in the room when 

Salyer took his breath test and that Trooper Shockey’s radio was on, no testimony 

affirmatively establishes this fact. Trooper Shockey testified that he could not 
Case No. 9-12-29 

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remember whether other people were in the room, and that he could not remember 

whether his radio was on. This testimony does not, in any way, establish that there 

were definitely radios on during Salyer’s test within a range that could disrupt the 

Datamaster. 

{¶38} Second, at the hearing, Salyer called no witnesses to testify as to how 

these “hypothetical” radios that were potentially on in the room at the time of the 

test caused any actual interference with Salyer’s specific test. There is no 

evidence connecting any of the radios that may or may not have been on or present 

to any actual RFI interference. Under these circumstances we cannot find that the 

trial court erred in overruling Salyer’s motion to suppress the breath test based on 

the tenuous connection of RFI interference advocated by Salyer. 

{¶39} Salyer’s argument regarding record keeping is similarly nebulous. 

On appeal, Salyer claims that in his motion to suppress and at the suppression 

hearing he challenged the record keeping related to the Datamaster. According to 

Salyer, the Ohio Department of Health requires three years of records to be 

maintained on the testing machine. Salyer contends that the State did not establish 

substantial compliance with this rule. It is not clear from Salyer’s motion to 

suppress, the testimony at the suppression hearing, or Salyer’s brief to this court 

how there was any failure in record keeping or how any alleged failure affected 

the results of Salyer’s test. 
Case No. 9-12-29 

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{¶40} Trooper Addy testified that he had performed the required instrument 

checks the week prior to Salyer’s test on September 11, 2011, and the week (day) 

following Salyer’s test, September 18, 2011.6

 According to Trooper Addy’s 

testimony, the machine was functioning properly. It is unclear from the record 

how any lack of records months or years prior to the date of the test in question 

caused an issue warranting suppression of the breath test. Based on the foregoing, 

we cannot find that the trial court erred in its ruling not to suppress the breath test 

results. 

{¶41} In his final argument, Salyer argues that the court erred in concluding 

that probable cause existed to arrest Salyer. The trial court’s entry regarding 

probable cause reads as follows: 

In this case, Trooper Shockey took into consideration the fact 

that the defendant stopped his car on the left side of the street 

facing the wrong way; that the defendant had admitted to 

drinking three (sic) rum and cokes prior to the stop; that there 

was an odor of alcohol from the defendant’s breath and person; 

that the defendant’s eyes were glassy; that the defendant 

exhibited an extraordinary amount of talkativeness; the 

observations that he made as Defendant performed the 

standardized field sobriety tests; and the clues presented from 

the Walk and Turn and the defendant’s inability to perform the 

One Leg Stand. These facts and events, given the totality of the 

circumstances, would have warranted a reasonable person such 

as the trooper to believe that Defendant Salyer committed a 

violation of ORC 4511.19.

(Doc. 46). 

 

6

 Calibration checks were conducted every seven days. 
Case No. 9-12-29 

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{¶42} We note that the trial court mistakenly characterizes the amount of 

alcohol that Salyer admittedly consumed; Salyer admitted to having one rum and 

coke three hours prior to the stop, not three drinks. We further note that while 

Trooper Shockey may have considered the fact that Salyer’s vehicle was stopped 

on the wrong side of the road, and that this fact was clearly displayed in the video 

thereby being properly considered by the trial court, Trooper Shockey did not 

testify that this was a factor in determining his probable cause. 

{¶43} Despite the trial court’s mischaracterizations, we find that the 

remaining facts and circumstances, even without considering the HGN test, still 

would give rise to probable cause to arrest Salyer for OVI. In addition to the facts 

cited by the trial court that were established in the record, we would also point to 

the time being a factor, since it was approximately 1:39 a.m., and we would also 

point to Trooper Shockey’s testimony that Salyer had been about to say “well I 

couldn’t even do that so[ber].” (Tr. at 23). These facts taken with Salyer’s 

admission to drinking, his glassy eyes, his traffic violation, the clue on the walk 

and turn, Salyer’s inability to perform the one leg stand test, and the moderate 

odor of alcohol could lead to probable cause.7

 Under the totality of the 

circumstances, we cannot find that the trial court erred in finding there was 

probable cause to arrest Salyer. 

 

7

 As the trial court did not find that the HGN test was done in substantial compliance with recognized 

standards, we did not use the HGN clues in our review of probable cause. 
Case No. 9-12-29 

-21- 

{¶44} For the foregoing reasons Salyer’s assignment of error is overruled 

and the judgment of the Marion Municipal Court is affirmed. 

Judgment Affirmed 

PRESTON, P.J. and WILLAMOWSKI, J., concur. 

/jlr