[Cite as State v. Denton, 2018-Ohio-3530.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 9-18-10 

 v. 

DONALD DENTON, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion County Municipal Court 

Trial Court No. TRC 17 08445A 

Judgment Affirmed 

Date of Decision: September 4, 2018 

 

APPEARANCES: 

 

Tod Brininger and Chelsea Lund for Appellant 

 Steven E. Chaffin for Appellee 
Case No. 9-18-10 

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ZIMMERMAN, J. 

{¶1} Defendant-appellant, Donald Denton (“Denton”), brings this appeal 

from the February 28, 2018 judgment of the Marion County Municipal Court 

convicting him of operation of a vehicle with a prohibited alcohol concentration 

(“OVI”), in violation of R.C. 4511.19(A)(1)(d), upon his plea of no contest to the 

charge. For the reasons that follow, we affirm the trial court’s judgment. 

Facts and Procedural History 

{¶2} On September 2, 2017, at 12:50 a.m., Denton was stopped by Trooper 

Brian Garloch (“Trooper Garloch”) of the Ohio State Highway Patrol after he was 

observed traveling left of center. After initiating contact, Trooper Garloch detected 

an odor of alcohol about Denton. Trooper Garloch then performed several field 

sobriety tests on Denton, including the horizontal gaze nystagmus, the walk-andturn, and the one-leg stand. After failing the field sobriety tests, Denton was placed 

under arrest for OVI at approximately 1:12 a.m. (1/18/18 Tr. at 7). 

{¶3} After placing Denton under arrest, Trooper Garloch searched Denton’s 

pockets and found a can of smokeless tobacco. Further, prior to placing Denton in 

the back of his patrol car, Trooper Garloch noticed Denton had smokeless tobacco 

in his mouth. Trooper Garloch ordered Denton to remove the tobacco from his 

mouth and watched as Denton spit it out. (Id. at 8). 
Case No. 9-18-10 

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{¶4} Thereafter, Trooper Garloch transported Denton to the Multi-County 

Jail where a breath test could be performed. At the jail, a corrections officer did a 

pat-down of Denton, including a check of his mouth. (Id. at 9-10). However, 

Trooper Garloch discovered that the BAC DataMaster machine at that location was 

out of service, so he transported Denton to the Marion City Police Department so a 

breathalyzer test could be timely completed. (Id. at 9). 

{¶5} Upon arriving at the Marion City Police Department, Trooper Garloch 

removed Denton’s handcuffs and placed him in a chair in front of the BAC 

DataMaster machine. Trooper Garloch then placed Denton’s belongings (wallet, 

cell phone and tobacco can) along with his own belongings (flashlight, OVI booklet, 

2255 log, etc.) on the top of a refrigerator in the room, and left the room to get a 

Marion Police Officer. (Id. at 12). Trooper Garloch testified that he was absent 

from the room for “less than a minute”, walking approximately 15 steps down the 

hall to Lieutenant Musser’s office. (Id. at 24). 

{¶6} Thereafter, at approximately 2:56 a.m., Denton submitted to a 

breathalyzer test administered by Trooper Garloch. A valid sample was obtained 

and the test produced a result of .122 of one gram by weight of alcohol per two 

hundred ten liters of breath. The concentration of alcohol detected in Denton’s 

breath exceeded the legal limit of .08. 
Case No. 9-18-10 

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{¶7} Denton was charged with OVI, in violation of R.C. 4511.19(A)(1)(a), 

operation of a vehicle with a prohibited alcohol concentration, in violation of R.C. 

4511.19(A)(1)(d), and left of center, in violation of R.C. 4511.25. Denton entered 

pleas of not guilty to all charges. 

{¶8} On November 15, 2107, Denton filed a motion to suppress in the trial 

court challenging whether Trooper Garloch exercised the twenty-minute 

observation period prior to obtaining the breath sample. On January 18, 2018, a 

hearing was held on Denton’s motion to suppress. Trooper Garloch’s testimony 

was the only evidence introduced to the trial court during the hearing. On February 

21, 2018, the trial court issued its judgment entry overruling the motion. (Doc. 33). 

A jury trial was set for March 7, 2018, however, Denton changed his plea to no 

contest to the charge of OVI, in violation of R.C. 4511.19(A)(1)(d), and the other 

charges were dismissed by the trial court. 

{¶9} The trial court sentenced Denton to thirty days in jail, suspending 

twenty-seven of the days, and imposed a fine of $1,000, suspending $450. The trial 

court also suspended Denton’s driver’s license for one year. 

{¶10} Denton now appeals, asserting the following assignment of error for 

our review. 
Case No. 9-18-10 

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ASSIGNMENT OF ERROR 

THE TRIAL JUDGE ERRED IN FINDING THE TROOPER IN 

SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENT 

OF THE OHIO DEPARTMENT OF HEALTH REGULATIONS 

IN REGARDS TO THE TWENTY MINUTE OBSERVATION 

PERIOD. 

{¶11} In his sole assignment of error, Denton contends that Trooper Garloch 

failed to observe him for the required twenty-minute period prior to administering 

the breathalyzer test. Specifically, Denton questions whether the burden of proof 

shifted to him to present evidence that he ingested some material during the twentyminute observation period. 

Standard of Review 

{¶12} Appellate review of a decision on a motion to suppress evidence 

presents a mixed question of law and fact. State v. Blair, 3d Dist. Marion No. 9-12-

14, 2013-Ohio-646, citing State v. Bressler, 3d Dist. Van Wert 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 positon to resolve factual questions and evaluate the credibility of 

witnesses.” Blair, citing 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.” Blair, citing 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 
Case No. 9-18-10 

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credibility of the witnesses,’ and then independently review whether the trial court 

applied the correct legal standard.” Blair, quoting State v. Anderson, 100 Ohio 

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

Analysis

{¶13} In his argument, Denton asserts that the trial court erred in finding that 

Trooper Garloch complied with the required twenty-minute observation period, 

insinuating that he ingested tobacco when Trooper Garloch left him unattended at 

the Marion Police Department. As such, Denton argues that the State failed to 

establish substantial compliance with the Ohio Department of Health regulations 

and the results of his breath test should have been suppressed. We find this 

argument lacks merit. 

{¶14} In order for a breathalyzer test result to be admissible, the State must 

prove that the subject’s breath sample was “analyzed according to the operational 

checklist for the instrument being used”. Ohio Adm.Code 3701-53-02(D). One of 

the elements on the BAC checklist is “that the person being tested be observed for 

twenty minutes before the test to prevent the oral intake of any material”. State v. 

Siegel, 138 Ohio App.3d 562, 566-567 (3d Dist.). This requirement is in place “to 

eliminate the possibility that the test result is a product of anything other than the 

subject’s deep lung breath”. State v. Shockey, 3d Dist. Marion No. 9-14-06, 2014-

Ohio-5004, ¶6. We have previously decided that strict compliance of the twenty-
Case No. 9-18-10 

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minute observation period is not required, only substantial compliance. State v. 

Aldridge, 3d Dist. Marion No. 9-13-54, 2014-Ohio-4537, citing Bolivar v. Dick, 76 

Ohio St.3d 216, 218. 

{¶15} Denton argues that the State did not prove substantial compliance with 

Ohio Adm.Code 3701-53-02(B) because Trooper Garloch testified that he left 

Denton alone in a room shortly after arriving at the Marion Police Department. 

Additionally, Denton asserts that the State failed to present any evidence that 

Trooper Garloch observed Denton for twenty minutes after rejoining Denton in the 

room. 

{¶16} “The purpose of the observation rule is to require positive evidence 

that during the twenty minutes prior to the test the accused did not ingest some 

material which might produce an inaccurate test result. [Citation omitted.] A 

witness who testifies to that foundational fact is not required to show that the subject 

was constantly in his gaze, but only that during the relevant period the subject was 

kept in such a location or condition or under such circumstances that one may 

reasonably infer that his ingestion of any material without the knowledge of the 

witness is unlikely or improbable. To overcome that inference, the accused must 

show that he or she did, in fact, ingest some material during the twenty-minute 

period.” Cleveland v. Hopkins, 8th Dist. Cuyahoga Nos. 97600, 97601, 2012-Ohio5170, ¶20, quoting State v. Adams, 73 Ohio App.3d 735, 74 (2nd Dist. 1992). 
Case No. 9-18-10 

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{¶17} In the case sub judice, Trooper Garloch testified that he observed 

Denton for at least twenty minutes before he administered the breath test. His 

testimony reveals that he was with Denton from the time of Denton’s arrest, at 1:12 

a.m., until the time the breath test was administered, at 2:56 a.m. According to 

Trooper Garloch, the only time Denton left his sight was when he left the room “for 

less than a minute” to walk 15 steps to Lieutenant Musser’s office, located close to 

the room where Denton was located. Trooper Garloch further testified that as he reentered the room (where Denton was located) he did not hear Denton’s chair move, 

that Denton did not appear to be sitting down from a standing position, nor did he 

notice that any of Denton’s belongings on top of the refrigerator had been disturbed. 

(Jan. 18, 2018 Tr. Pgs. 24-25). Denton avers that because Trooper Garloch was not 

in the room observing him for twenty minutes immediately before administering the 

breath test, he could not be positive that Denton did not ingest any material 

(tobacco). However, the Ohio Supreme Court has determined that the “mere 

assertion that ingestion was hypothetically possible ought not to vitiate the 

observation period foundational fact so as to render the breathalyzer test results 

inadmissible.” Cleveland, supra at ¶20; State v. Steele, 52 Ohio St.2d 187, 192 

(1977). 

{¶18} In our review of the record we find that Denton failed to present any 

evidence at the suppression hearing that he had placed something in his mouth while 
Case No. 9-18-10 

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he was left unattended at the Marion Police Department. In our review of the facts, 

it would have been obvious to Trooper Garloch if Denton had placed some 

smokeless tobacco in his mouth upon Denton’s completion of the breath test. As 

such, we find that Denton has failed to overcome the reasonable inference that it 

was unlikely that he had placed any material in his mouth that may have affected 

the results of the test after the Trooper left the room for a very brief period of time. 

{¶19} Moreover, we find that Trooper Garloch’s testimony reveals 

substantial compliance with the twenty-minute observation period under the facts 

presented. And, because the State proved substantial compliance with the Ohio 

Department of Health regulations, the trial court did not err by denying Denton’s 

motion to suppress. Accordingly, Denton’s sole assignment of error is overruled. 

{¶20} Having found no error prejudicial to the appellant herein in the 

particulars assigned, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW and PRESTON, J.J., concur. 

/jlr