[Cite as State v. Nethers, 2019-Ohio-2898.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJARED NETHERS 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 18 CA 0076 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court 

 Case No. 18 TRC 04238 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: July 16, 2019 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

TRICIA M. MOORE KEVIN J. GALL 

ASSISTANT LAW DIRECTOR 33 West Main Street 

40 West Main Street Suite 109 

Newark, Ohio 43055 Newark, Ohio 43055 
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Wise, J. 

{¶1} Appellant Jared A. Nethers appeals his OMVI conviction (based on a 

prohibited concentration of a drug of abuse), following a no contest plea, in the Licking 

County Municipal Court. The Appellee is the State of Ohio. The relevant facts leading to 

this appeal are as follows. 

{¶2} On the evening of January 15, 2018, Trooper Jordan Daniel of the Ohio 

State Highway Patrol was driving in his marked cruiser on State Route 657 in Burlington 

Township, Licking County. The area roads on that date were snow-covered. Shortly 

before 7:00 PM, the trooper saw a 1997 Chevrolet SUV in a roadside ditch and stopped 

to assist. He thereupon made contact with Appellant Nethers, whom he identified as the 

driver of the vehicle. Appellant had his fourteen-year-old daughter with him. 

{¶3} Trooper Daniel later testified that he observed an odor of alcohol on 

appellant’s breath as he spoke with him. He also observed appellant’s eyes to be “glassy” 

and bloodshot. Supp. Tr. at 12. When asked, appellant admitted to having had one beer 

after work that day. Due to these observations, Trooper Daniels requested that appellant 

submit to field sobriety tests. 

{¶4} The first one administered was the horizontal gaze nystagmus (“HGN”) test. 

Trooper Daniel recalled inter alia that “[d]uring the HGN [appellant] had to be instructed 

several times on how to follow my finger.” Tr. at 29. The trooper concluded that appellant 

exhibited four out of six possible clues on this test. Tr. at 17. 

{¶5} Due to the snowy road conditions, Trooper Daniels did not administer the 

walk and turn or the one-leg stand test. Instead, he administered two additional, nonstandardized tests: the “alphabet” test and the "flat finger dexterity” test, as further 
Licking County, Case No. 18 CA 0076 3

discussed infra. The trooper noted that these types of tests provide insight into a driver’s 

ability to handle tasks under conditions of divided attention. Tr. at 23-24. 

{¶6} Based on his overall observations and appellant’s performance of the 

aforesaid three tests, the trooper placed appellant under arrest for operating a vehicle 

while under the influence of alcohol and/or a drug of abuse (“OMVI”). 

{¶7} On January 17, 2018, appellant was charged (trial court case number 18-

TRC-00630) with OMVI, in violation of R.C. 4511.19(A)(1)(a). 

{¶8} On February 22, 2018, appellant filed a motion for leave to file an untimely 

motion to suppress evidence under 18-TRC-00630. The trial court thereafter granted the 

request for leave to file. 

{¶9} On April 3, 2018, appellant was additionally charged (trial court case 

number 18-TRC-04238) with OMVI (based on an allegation of a prohibited concentration 

of a drug of abuse), in violation of R.C. 4511.19(A)(1)(j)(vii). 

{¶10} On the same day, appellant’s aforementioned motion to suppress came on 

for an oral hearing. Via a judgment entry issued on May 3, 2018, the trial court denied the 

motion to suppress. 

{¶11} On April 18, 2018, upon a motion filed by the State, case numbers 18-TRC00630 and 18-TRC-04238 were consolidated. 

{¶12} On August 16, 2018, upon appellant’s request, the trial court transferred 

appellant’s motion to suppress evidence, and the corresponding judgment entry denying 

that motion, to 18-TRC-04238. 

{¶13} On August 22, 2018, the matter came on for a change of plea and 

sentencing hearing. At that time, appellant entered a no contest plea to one count of OVI 
Licking County, Case No. 18 CA 0076 4

in violation of R.C. 4511.19(A)(1)(j)(vii), in case number 18-TRC-04238. In exchange for 

the defendant's plea in 18-TRC-04238, case number 18-TRC-00630 was dismissed. 

{¶14} Appellant was sentenced inter alia to serve thirty days in jail, with twentyseven of those days suspended, and he was placed on probation for a period of one year. 

{¶15} On August 23, 2018, appellant filed a notice of appeal. He raises the 

following sole Assignment of Error: 

{¶16} “I. THE TRIAL COURT ERRED IN DETERMINING THAT THE 

ARRESTING OFFICER SUBSTANTIALLY COMPLIED WITH APPROVED TESTING 

STANDARDS AND THAT THERE WAS PROBABLE CAUSE TO ARREST MR. 

NETHERS FOR OVI.” 

I. 

{¶17} In his sole Assignment of Error, appellant contends the trial court erred in 

concluding that Trooper Daniel substantially complied with field sobriety testing standards 

and that there was probable cause to arrest appellant. We disagree. 

{¶18} There are three methods of challenging on appeal a trial court's ruling on a 

motion to suppress. First, an appellant may challenge the trial court's findings of fact. 

Second, an appellant may argue the trial court failed to apply the appropriate test or 

correct law to the findings of fact. Finally, an appellant may argue the trial court has 

incorrectly decided the ultimate or final issue raised in the motion to suppress. See State 

v Karns, 196 Ohio App.3d 731, 2011-Ohio-6109, ¶ 31 (5th Dist.) (citations omitted). When 

reviewing this third 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 
Licking County, Case No. 18 CA 0076 5

1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. 

Guysinger (1993), 86 Ohio App.3d 592, 621 N .E.2d 726. The United States Supreme 

Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 

911, that “... as a general matter determinations of reasonable suspicion and probable 

cause should be reviewed de novo on appeal.” 

{¶19} As an initial matter, we are compelled to clarify our reading of the bounds 

of the present analysis. A request made of a validly detained motorist to perform field 

sobriety tests is generally outside the scope of the original stop, and must be separately 

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

State v. Todd, 5th Dist. Ashland No. 14 COA 005, 2014-Ohio-4489, ¶ 19, quoting State 

v. Anez (2000), 108 Ohio Misc.2d 18, 26, 738 N.E.2d 491. However, in this instance, 

appellant’s sole assigned error challenges the “probable cause to arrest” stage of his 

encounter with law enforcement on January 15, 2018. Appellant does not herein 

challenge the “stop” of his SUV, as the trooper happened upon the scene of a vehicle in 

a ditch and got out to provide assistance, and appellant does not argue that the trooper 

lacked reasonable suspicion to conduct any field sobriety testing at the scene. In that 

light, we will address appellant’s present arguments.1

{¶20} Approximately twenty years ago, the Ohio Supreme Court decided State v. 

Homan, 89 Ohio St.3d 421, 732 N.E.2d 952, 2000-Ohio-212. The Court therein held as 

follows, at paragraph one of the syllabus: “In order for the results of a field sobriety test 

 

1 Under Crim.R. 47, a motion to suppress “shall state with particularity the grounds upon 

which it is made.” The appellate record before us does not contain a copy of the motion 

to suppress, most likely because it was originally filed under the earlier-charged case, 18-

TRC-00630. We herein proceed under the presumption that the present issues were 

raised in the suppression motion. 
Licking County, Case No. 18 CA 0076 6

to serve as evidence of probable cause to arrest, the police must have administered the 

test in strict compliance with standardized testing procedures.” 

{¶21} However, in response to the Homan decision, the General Assembly 

amended R.C. 4511.19. “Under the amended statute, the arresting officer no longer 

needs to have administered field sobriety tests in strict compliance with testing standards 

for the test results to be admissible at trial. Instead, an officer may now testify concerning 

the results of a field sobriety test administered in substantial compliance with the testing 

standards.” See State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 9; State v. Allen, 

5th Dist. Licking No. 05 CA 10, 2006-Ohio-30, ¶ 14; R.C. 4511.19(D)(4)(b). 

{¶22} Furthermore, in State v. Boczar (2007), 113 Ohio St.3d 148, 2007-Ohio1251, the Ohio Supreme Court upheld the constitutionality of R.C. 4511.19(D)(4)(b), 

which, as indicated above, provides that the results of field sobriety tests are admissible 

when the tests are administered in “substantial compliance” with testing standards. Id. at 

¶ 28. But the State maintains the burden in a suppression hearing to show substantial 

compliance with field sobriety testing methods. Todd, supra, at ¶ 25. 

Horizontal Gaze Nystagmus Test 

{¶23} In the case sub judice, Trooper Daniel testified at the suppression hearing 

that he commenced the HGN test by turning off his cruiser’s overhead lights and 

positioning appellant off to the right side of the roadway, away from traffic. Supp. Tr. at 

14. Trooper Daniel recalled that appellant had to be told multiple times to follow the 

stimulus as required. Tr. at 17. The trooper also noted that in his experience, some people 

tend to not follow the stimulus as instructed due to impairment or their familiarity with the 
Licking County, Case No. 18 CA 0076 7

test. Tr. at 18. The trooper testified that he performed the HGN test in compliance with 

his training. Id. As indicated supra, the trooper observed four out of six clues. Tr. at 20. 

{¶24} Trooper Daniel also testified that his decision to position appellant off to the 

right side of the cruiser was based on the danger presented by other vehicles on the 

snow-covered roadway. Tr. at 15. Because the HGN test was conducted in that particular 

location, the dashcam video provided in the present appellate record generally shows just 

the right arm and shoulder of the trooper, while appellant is fully off-camera. However, 

from our review of the DVD, it appears appellant is generally facing forward, i.e., in the 

same direction as the nose of the cruiser is pointed. 

{¶25} Appellant’s chief concern under these circumstances is that the trooper 

failed to eliminate the possibility of optokinetic nystagmus. As recently summarized by the 

Ninth District Court of Appeals: “The NHTSA training manual explains that nystagmus 

can result from neural activity occasioned by ‘watching strobe lights, rotating lights, or 

rapidly moving traffic in close proximity.’ According to the NHTSA manual, this kind of 

‘optokinetic nystagmus’ does not affect a properly administered HGN test.” State v. Tisch, 

9th Dist. Wayne No. 18AP0003, 2018-Ohio-5323, ¶ 10. 

{¶26} Based on the video, the area in question appears to be mostly rural and, at 

the time in question, lightly travelled. Nonetheless, just as Trooper Daniel’s voice is first 

heard telling appellant to follow the pen at about 19:02:50, two vehicles, with headlights 

on, pass by from the front, going off the left side of the screen at about 19:03:04. As the 

HGN test continues off-camera, albeit with generally poor audio, another car’s headlights 

come into view at about 19:04:10. Said vehicle goes off the left side of the screen at about 

19:04:44, and the HGN portion of the testing appears to be completed by about 19:05:20. 
Licking County, Case No. 18 CA 0076 8

{¶27} Other than the aforesaid three passing vehicles, none of which appear to 

be moving fast, the only other noticeable automobile lights in the video during the HGN 

test are the flashing hazard lamps on appellant’s SUV on the opposite side of the road. 

No other vehicles are seen passing by until 19:08:10, at which time the trooper has 

already moved on to additional testing, as discussed infra. 

{¶28} Under the circumstances presented, we find the record before us does not 

support appellant’s arguments challenging the trooper’s utilization of the HGN test. 

Non-Standardized Tests 

{¶29} The first of the non-standardized tests administered by the trooper was an 

alphabet test. Tr. at 23. Trooper Daniel first had appellant recite the alphabet from “A “to 

“Z” in order to determine whether he knew the alphabet in its entirety. Tr. at 23. He then 

directed appellant to recite the alphabet from “D” to “O.” Tr. at 24. On his initial attempt, 

appellant continued past the letter “O.” On his second attempt, he went from “D” to “O,” 

but he skipped the letter “G.” Tr. at 24-25, 37; Exhibit 2. 

{¶30} Trooper Daniel also had appellant perform what he classified as the "flat 

finger dexterity test." Tr. at 21. This test required appellant to touch his thumb to his fingers 

in sequence counting forward from one to four and then repeating the actions backward. 

Tr. at 25. According to the trooper, appellant on his first attempt did not accurately count 

as he was instructed. Tr. at 26. However, on the second attempt, appellant completed the 

test correctly. Tr. at 27; Exhibit 2. 

Analysis and Conclusion

{¶31} Appellant urges at several points in his brief that the trooper’s sole 

standardized test, i.e., the HGN test, did not substantially comply with NHTSA standards 
Licking County, Case No. 18 CA 0076 9

and that the two non-standardized tests did not comport with any generally accepted 

standards. However, “‘[i]t has been repeatedly emphasized that probable cause is a fluid 

concept that is based upon a case-by-case evaluation of the totality of the 

circumstances.’” Todd, supra, at ¶ 31, citing State v. Reid, 9th Dist. Lorain No. 

12CA010265, 2013–Ohio–4274, ¶ 26 (Belfance, P.J., dissenting) (additional citations 

omitted). Specifically, “*** all three [standardized] field sobriety tests need not be 

administered for any one test result, properly administered, to be admissible into evidence 

for consideration in determining probable cause for arrest.” State v. DeVault, 6th Dist. 

Ottawa No. OT-12-027, 2013-Ohio-2942, ¶ 16, citing State v. Markin, 10th Dist. Franklin 

No. 01AP-1208, 149 Ohio App.3d 274, 2002-Ohio-4326, 776 N.E.2d 1163, ¶ 15 

(emphases omitted). Furthermore, the three cases appellant relies upon at page 8 of his 

brief are unpersuasive, as we find they rely too heavily upon the superseded Homan rule 

concerning NHTSA standards.2 

{¶32} Upon review, we find the record does not support appellant’s claim that the 

HGN test was not in substantial compliance with the requisite standards, and in 

conjunction with the trooper’s testimony and dashcam video regarding the additional 

testing, as well as the undisputed facts concerning appellant’s condition during the events 

in question (odor of alcoholic beverage, glassy and bloodshot eyes, and admission to 

having recently consumed one beer), along with the presence of the SUV in the ditch, we 

hold the trial court correctly decided the trooper had probable cause to arrest appellant 

for OMVI. 

 

2 State v. Nickelson, 6th Dist. Huron No. H-00-036, 2001 WL 1028878; State v. Ryan, 

5th Dist. Licking No. 02-CA-00095, 2003-Ohio-2803; State v. Verity, 5th Dist. Stark No. 

2009CA00156, 2010-Ohio-1151. 
Licking County, Case No. 18 CA 0076 10

{¶33} Accordingly, appellant’s sole Assignment of Error is overruled. 

{¶34} For the reasons stated in the foregoing opinion, the judgment of the 

Municipal Court, Licking County, Ohio, is hereby affirmed. 

By: Wise, J. 

Gwin, P. J., and 

Delaney, J., concur. 

 

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