[Cite as State v. Phillips, 2010-Ohio-1547.]

STATE OF OHIO, MONROE COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

LEE PHILLIPS, 

 DEFENDANT-APPELLANT. 

)

)

)

)

)

)

)

)

)

 CASE NO. 08-MO-6 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from County Court of 

Monroe County, Ohio 

Case No. 08TRC10 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Thomas A. Hampton 

Assistant Prosecuting Attorney 

P.O. Box 480 

Woodsfield, Ohio 43713 

For Defendant-Appellant Attorney Mark Morrison 

117 North Main Street 

Woodsfield, Ohio 43793 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: April 1, 2010 
-2-

DONOFRIO, J. 

{¶1} Defendant-appellant Lee A. Phillips appeals his conviction in the 

Monroe County Court for first-offense operating a vehicle under the influence (OVI). 

The central issues are whether the trial court erred in failing to suppress the field 

sobriety and breath test results. 

{¶2} On January 5, 2008, Ohio State Highway Patrol Trooper Jeff Herink 

was following Phillips northbound on State Route 800 in Monroe County, Ohio, and 

observed him drive left of center and off the right side of the roadway. (Tr. 8, 21.) 

Trooper Herink continued to follow Phillips as he turned onto State Route 145 where 

he drove left of center again and was weaving within his own lane. (Tr. 8, 21.) 

{¶3} Trooper Herink initiated a traffic stop and approached Phillips to ask 

him for his driver’s license, registration, and proof of insurance. While conversing with 

Phillips, Trooper Herink noticed an odor of an alcoholic beverage and that Phillips’ 

eyes were glassy. (Tr. 9.) 

{¶4} Trooper Herink had Phillips return with him to the patrol car and sit in 

the front passenger seat. Trooper Herink continued to notice an odor of alcohol. (Tr. 

10.) When asked, Phillips acknowledged having a “couple” drinks earlier in the 

evening. (Tr. 10.) While in the car, Trooper Herink conducted the Horizontal Gaze 

Nystagmus (HGN) test. (Tr. 11-14) Due to the location of the traffic stop on a sloped 

driveway and near a curve in the highway, Trooper Herink did not conduct any other 

field sobriety tests. (Tr. 14, 27-28.) Trooper Herink took Phillips to the Woodsfield 

Police Department where Phillips submitted to a breath test resulting in a .179 BAC. 

(Tr. 16.) Trooper Herink cited Phillips for driving left of center in violation of R.C. 

4511.25 and first-offense OVI in violation of R.C. 4511.19(A)(1)(h). 

{¶5} Phillips pleaded not guilty and the case proceeded to discovery and 

other pretrial matters. Of particular relevance to this appeal, Phillips filed a motion to 

suppress the field sobriety and breath test results. He argued, in part, that Trooper 

Herink did not have probable cause to detain him for testing and that the HGN test 

was unreliable and not performed in accordance with applicable standards. The trial 
-3-

court held a hearing on the motion on March 5, 2008, with Trooper Herink testifying 

and various exhibits admitted into evidence. Another hearing was held on May 21, 

2008 to address issues concerning the breath test results. In entries filed March 19, 

2008, and July 2, 2008, the trial court overruled the motion. The court found that 

there was probable cause to detain and test Phillips. Concerning the HGN test, the 

court found it relevant and admissible for purposes of determining probable cause, 

but noted that the state had stipulated that the test results would not be used at trial. 

(Tr. 3-4.) 

{¶6} On July 30, 2008, Phillips pleaded no contest to first-offense OVI, 

preserving all issues raised in pre-trial motions for appeal. The trial court sentenced 

Phillips to 10 days in jail with 7 days of that suspended, $250.00 fine, 176 days 

driver’s license suspension with occupational driving privileges, and 1 year of 

reporting probation. The trial court stayed the sentence pending this appeal that 

followed. 

STANDARD OF REVIEW 

{¶7} Phillips raises three assignment of error, all of which are directed to the 

trial court’s overruling of his motion to suppress the results of the field sobriety and 

breath tests. The standard of review in an appeal of a suppression issue is two-fold. 

State v. Dabney, 7th Dist. No. 02BE31, 2003-Ohio-5141, at ¶9, citing State v. Lloyd

(1998), 126 Ohio App.3d 95, 100-101, 709 N.E.2d 913. Since the trial court is in the 

best position to evaluate witness credibility, an appellate court must uphold the trial 

court’s findings of fact if they are supported by competent, credible evidence. Id., 

citing State v. Winand (1996), 116 Ohio App.3d 286, 288, 688 N.E.2d 9, citing 

Tallmadge v. McCoy (1994), 96 Ohio App.3d 604, 608, 645 N.E.2d 802. However, 

once an appellate court has accepted those facts as true, the court must 

independently determine as a matter of law whether the trial court met the applicable 

legal standard. Id., citing State v. Clayton (1993), 85 Ohio App.3d 623, 627, 620 

N.E.2d 906. This determination is a question of law of which an appellate court 

cannot give deference to the trial court’s conclusion. Id., citing Lloyd. 
-4-

PROBABLE CAUSE TO ARREST FOR OVI – FIELD SOBRIETY TEST(S) 

{¶8} Phillips’ first two assignments of error are directed to whether there was 

probable cause to arrest him for OVI, focusing only on the field sobriety tests (and 

lack thereof) and whether the one test that was performed was done so properly. 

They state, respectively: 

{¶9} “THE OFFICER NEVER ACQUIRED PROBABLE CAUSE TO ARREST 

THE DEFENDANT FOR O.V.I. DUE TO OFFICER’S FAILURE TO COMPLY WITH 

THE NHTSA STANDARDS FOR THE ADMINISTRATION OF STANDARDIZED 

FIELD SOBRIETY TESTS AND HIS FAILURE TO ADMINISTER ALL THE SFST’S.” 

{¶10} “IT IS PREJUDICIAL ERROR TO ADMIT EVIDENCE OF FIELD 

SOBRIETY TESTS WITHOUT OFFERING THE NHTSA TRAINING MANUAL OR 

FAILURE OF THE STATE TO REQUEST JUDICIAL NOTICE OF THE METHOD OF 

PROPER ADMINISTRATION OF NHTSA OR OTHER FIELD SOBRIETY TESTS.” 

{¶11} The standard for determining whether there was probable cause to 

arrest for OVI is whether, at the moment of arrest, the police had sufficient 

information, derived from a reasonably trustworthy source of facts and 

circumstances, sufficient to cause a prudent person to believe that the suspect was 

driving under the influence. State v. Homan (2000), 89 Ohio St.3d 421, 427, 732 

N.E.2d 952 (Superseded by statute on other grounds as stated in R.C. 

4511.19(D)(4)(b).) That determination is based on the totality of the facts and 

circumstances surrounding the arrest. Id. 

{¶12} The Ohio Supreme Court has recognized that since the amendment of 

R.C. 4511.19 by the Ohio Legislature in 2003, field sobriety tests are no longer 

required to be conducted in strict compliance with standardized testing procedures. 

State v. Schmitt, 101 Ohio St.3d 79, 801 N.E.2d 446, 2004-Ohio-37, at ¶9. “Instead, 

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

in substantial compliance with the testing standards.” Id. This holding further enforces 

R.C. 4511.19(D)(4)(b), which provides in part, that evidence and testimony of the 

results of a field sobriety test may be presented “if it is shown by clear and convincing 
-5-

evidence that the officer administered the test in substantial compliance with the 

testing standards for any reliable, credible, and generally accepted field sobriety tests 

that were in effect at the time the tests were administered, including, but not limited 

to, any testing standards then in effect that were set by the national highway traffic 

safety administration.” 

{¶13} As a preliminary matter, a review of Phillips’ suppression motion raises 

the question of whether it set forth a sufficient legal and factual basis to challenge the 

field sobriety test results. Crim.R. 47 provides: 

{¶14} “An application to the court for an order shall be by motion. A motion, 

other than one made during trial or hearing, shall be in writing unless the court 

permits it to be made orally. It shall state with particularity the grounds upon which it 

is made and shall set forth the relief or order sought. It shall be supported by a 

memorandum containing citations of authority, and may also be supported by an 

affidavit. 

{¶15} “To expedite its business, the court may make provision by rule or order 

for the submission and determination of motions without oral hearing upon brief 

written statements of reasons in support and opposition.” 

{¶16} It is well recognized that a suppression motion must set forth an 

adequate basis for the motion. State v. Shindler (1994), 70 Ohio St.3d 54, 58, 636 

N.E.2d 319. The Ohio Supreme Court has held that “[i]n order to require a hearing on 

a motion to suppress evidence, the accused must state the motion’s legal and factual 

bases with sufficient particularity to place the prosecutor and the court on notice of 

the issues to be decided.” Id. at syllabus, construing and following Crim.R. 47 and 

Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889. After the defendant 

sets forth a sufficient basis for a motion to suppress, the burden shifts to the state to 

demonstrate substantial compliance with the testing standards or regulations 

involved. State v. Johnson (2000), 137 Ohio App.3d 847, 851, 739 N.E.2d 1249. 

{¶17} Thus, when a motion to suppress the results of the field sobriety tests 

merely asserts that they were not performed in substantial compliance with the 
-6-

NHTSA standards and no factual basis is provided for why the defendant believed 

the officer did not comply with the NHTSA standard by pointing to facts that occurred 

during the tests or to instructions that the defendant believed did not comply with the 

standards, those allegations are not specific enough to shift the burden to the state to 

demonstrate compliance with the NHTSA guidelines. 

{¶18} In this case, Phillips asserted three grounds for suppression of the field 

sobriety tests: (1) the tests were “not sufficiently reliable to establish impairment by 

alcohol”; (2) the officer did not have “sufficient qualifications to be deemed an expert 

and such tests were not performed in accordance with applicable standards 

(NHTSA)”; and (3) the officer “performed tests not approved by NHTSA and are not 

standardizes [sic].” Phillips never gave a factual basis for why he believed the officer 

did not comply with the NHTSA standards. He pointed to no specific facts that 

occurred nor to any instructions by Officer Herink that he believed failed to comply 

with the NHTSA manual. 

{¶19} This court has previously found such blanket statements not specific 

enough to shift the burden to the state to demonstrate proper compliance with the 

NHTSA regulations. See State v. Arnold, 7th Dist. No. 05-CO-60, 2006-Ohio-5228, at 

¶12 (“Appellant failed to allege facts in his motion as to how * * * [the officer] 

instructed him to perform the tests and how they did not comply with NHTSA 

standards. For this reason, the trial court did not err in denying appellant’s motion to 

suppress the results of his field sobriety tests.”); State v. Gozdan, 7th Dist. No. 03-

CA-792, 2004-Ohio-3209, at ¶10 (“merely stating that * * * [the field sobriety test] was 

not performed in strict compliance provides no factual basis to support the 

allegation.”) 

{¶20} Based on this court’s prior holdings, Phillips never shifted the burden to 

the state to prove that Trooper Herink administered the field sobriety tests in 

substantial compliance with the NHTSA standards. This alone is sufficient to affirm 

the trial court’s judgment overruling Phillips’ motion to suppress. 
-7-

{¶21} Nonetheless, even disregarding the insufficiency of Phillips’ 

suppression motion, his specific arguments under these assignments of error still fail. 

Under his first assignment of error, he points out that Trooper Herink did not have 

him perform the two other standardized field sobriety tests – the one leg stand test 

and the walk and turn test. Phillips adds that the one test he did perform, the HGN 

test, was unreliable because his Bell’s Palsy condition affects his face and eyes. 

{¶22} Under his second assignment of error essentially alleging an improper 

foundation for the admission of the HGN results, Phillips relies primarily on State v. 

Matus, 6th Dist. No. WD-06-072, 2008-Ohio-377. In Matus, the Sixth District Court of 

Appeals found that there was no testimony as to the particular standards used to 

perform the field sobriety tests, nor was there a request from the state for the trial 

court to take judicial notice of the NHTSA manual and standards. 

{¶23} At the suppression hearing in this case, there was no testimony that the 

HGN test was performed in compliance with the NHTSA or comparable reliable 

standards; nor did the state offer anything to show that it was performed in 

substantial compliance or that standards were followed. Thus, Phillips may have had 

a basis for suppressing the results of the HGN test. 

{¶24} However, each of these arguments ignores well-settled law that 

regardless of whether the tests were performed in compliance with NHTSA 

standards, the facts and circumstances of this case provided ample probable cause 

to arrest Phillips for OVI. As the Ohio Supreme Court observed in Homan: 

{¶25} “While field sobriety tests must be administered in strict [now 

substantial] compliance with standardized procedures, probable cause to arrest does 

not necessarily have to be based, in whole or in part, upon a suspect’s poor 

performance on one or more of these tests. The totality of the facts and 

circumstances can support a finding of probable cause to arrest even where no field 

sobriety tests were administered or where, as here, the test results must be excluded 

for lack of strict compliance.” Homan, 89 Ohio St.3d at 427, 732 N.E.2d 952. 
-8-

{¶26} Aside from the defects that occurred in the administration of the field 

sobriety tests in Homan, the Ohio Supreme Court concluded that the totality of the 

facts and circumstances in that case supported the officer’s decision to arrest the 

driver for OVI. Those facts and circumstances included erratic driving, the driver’s red 

and glassy eyes, the smell of alcohol on the driver’s breath, and the driver’s 

admission that they had been consuming alcoholic beverages. 

{¶27} So, too, in Matus, even though the Sixth District found merit with 

appellant’s argument, it found the error to be harmless: 

{¶28} “When a trial court erroneously fails to suppress the results of field 

sobriety tests, if ample evidence exists to support the arrest and conviction, this error 

is harmless. Village of Gates Mills v. Mace, 8th Dist. No. 84826, 2005-Ohio-2191, at 

¶ 29. The following factors have been held to be indications that established probable 

cause for the arrest and conviction of a person for DUI: erratic driving, driving left of 

center at least three times, stopping at an intersection for a prolonged period of time, 

smell of alcoholic beverage on the person or breath, failure to notice police car 

flashers, slurred speech, bloodshot eyes, and impairment of physical abilities. See 

State v. Flowers, 7th Dist. No. 07-MA-68, 2007-Ohio-6920. 

{¶29} “In addition to the results of the field sobriety tests, Officer Reinhart also 

testified to the following indicators to demonstrate that appellant was under the 

influence of alcohol. Appellant was observed driving over the yellow line three times. 

Appellant stopped and stayed at a flashing yellow light intersection for at least 30 

seconds, a prolonged amount of time, and did not notice that the officer's flashers 

were engaged until after he turned on his sirens. Appellant smelled of alcohol, was 

unsteady when he exited his vehicle, had slurred speech, and had bloodshot eyes. 

Appellant also admitted to drinking three beers. Thus, even without the sobriety tests, 

there was sufficient evidence to demonstrate that there was probable cause to stop 

and to convict appellant of operating a vehicle while under the influence of an 

alcoholic beverage. Therefore, the trial court’s error in denying appellant's motion to 

suppress the sobriety tests was harmless. 
-9-

{¶30} “Accordingly, although appellant’s second assignment of error is welltaken, it does not constitute reversible error.” State v. Matus, 6th Dist. No. WD-06-

072, 2008-Ohio-377, ¶¶27-29. 

{¶31} In this case, there were other factors, aside from the results of the HGN 

test, which provided a sufficient basis for probable cause to arrest Phillips for O.V.I. 

First, Trooper Herink indicated that Phillips drove left of center by a tire width on two 

occasions. Trooper Herink characterized the left of center offenses as driving over 

the center line then jerking back. It was not a smooth action or one consistent with 

just cutting a corner close or avoiding something in the roadway. Second, he drove 

off the right side of the roadway twice. Third, he smelled of alcohol. And fourth, he 

admitted to drinking. 

{¶32} As for the HGN test, Trooper Herink’s observations pertaining to that 

test were admitted solely for the purpose of the probable cause determination and 

were not going to be admitted at trial. Concerning Phillips’ Bell’s Palsy condition, he 

offered no testimony that he even had the condition or how it could have affected the 

field sobriety test or Trooper Herink’s observations. 

{¶33} Accordingly, Phillips’ first and second assignments of error are without 

merit based on the nonspecificity of Phillips’ suppression motion. That issue aside, 

even if Phillips’ first and second assignments of error had any merit, the error was 

harmless. 

BREATH TEST RESULTS 

{¶34} Phillips’ third assignment of error states: 

{¶35} “THE ADMISSION OF BREATH TEST RESULTS WITHOUT 

EVIDENCE OF PROPER REFRIGERATION OF THE CALIBRATION SOLUTION 

DOES NOT CONSTITUTE SUBSTANTIAL COMPLIANCE WITH OHIO HEALTH 

DEPARTMENT RULES AND REGULATIONS AND MUST BE SUPPRESSED.” 

{¶36} Under this assignment of error, Phillips raises what he terms as “quality 

control” issues concerning the storage of the calibration solution. Specifically, he 

points to lack of evidence concerning inspection, temperature controls, access by 
- 10 -

others, whether other items such as food and drinks were stored with the solution, 

and backup supply of electric in the event of a power outage. 

{¶37} However, Phillips was not as specific in his motion to suppress. This 

again raises the issue of whether the suppression motion set forth a sufficient legal 

and factual basis to challenge the breath test results. The section of Phillips’ motion 

to suppress the breath test results read: 

{¶38} “BRANCH THREE:

{¶39} “For an order suppressing the BAC Data Master results on the grounds 

that such tests was [sic] not performed in accordance with the rules and regulations 

of the Department of health [sic]. 

{¶40} “GROUNDS:

{¶41} “Specifically, defendant asserts that compliance was not made with 

regard to the following specific rules and regulations: 

{¶42} “a) Defendant was not observed by the testing officer continuously for 

20 minutes immediately prior to said test. Further, the test was not performed within 2 

hours of operation or physical control of a motor vehicle by the defendant. 

{¶43} “b) That RFI testing and site examination was not properly conducted 

as required by law. 

{¶44} “c) That calibration sample procedures and regulations of the 

Department of Health. [sic] 

{¶45} “d) That the health testing devise [sic] was not properly calibrated and 

protected against RFI interference.” 

{¶46} Upon review, it does not seem that Phillips’ motion was sufficiently 

specific enough to raise a challenge regarding the refrigeration of the calibration 

solution. Subsection c is the only part of the motion that could be generously 

construed as addressing the storage of the calibration solution. It is not even a 

complete sentence. And it makes no reference to the Administrative Code section(s) 

that Phillips believes were not complied with. It certainly makes no reference to the 

refrigeration of the calibration solution. In sum, the motion did not set forth a sufficient 
- 11 -

legal and factual basis to challenge the breath test results and that would have 

reason enough for the trial court to overrule that aspect of it. 

{¶47} Again, even assuming Phillips had set forth a sufficient legal and factual 

basis to challenge the breath test results, his claim would still fail. This court recently 

rejected this same argument in State v. Calder, 7th Dist. No. 08 MO 5, 2009-Ohio3329: 

{¶48} “The Ohio Administrative Code dictates that calibration solutions must 

be kept under refrigeration after the first use and must be kept under refrigeration 

when not in use. At the time of the offense the Code read: 

{¶49} “‘Calibration solutions shall be kept under refrigeration after first use, 

when not being used. The calibration solution container shall be retained until the 

calibration solution is discarded.’ Ohio Adm.Code 3701-53-04(C). * * * 

{¶50} “The Third Appellate District has explained that the refrigeration 

requirement puts only a ‘fairly slight’ burden on the state to show substantial 

compliance with this section and it could be satisfied with minimal testimony on 

refrigeration. State v. Yeaples, 3d Dist. No. 13-08-14, 2009-Ohio-184, ¶35, citing 

State v. Johnson (2000), 137 Ohio App.3d 847, State v. Bissaillon, 2d Dist. No. 

06CA130, 2007-Ohio-2349, and State v. Kerr, 6th Dist. No. H-02-028, 2002-Ohio6358. See, also, State v. Washington (2000), 137 Ohio App.3d 847, 854. At the 

suppression hearing, officers testified that after first use, when the solution was not in 

use, it was refrigerated. (Tr. 63, 87). This testimony was sufficient to show substantial 

compliance with the Ohio Administrative Code. 

{¶51} “Moreover, the ‘quality control’ arguments about temperature, a back up 

power supply, and other uses for the refrigerator fail. This is because the Ohio 

Administrative Code does not set forth any of these requirements. Instead, it merely 

requires refrigeration after initial use. As there is nothing else set out in the code 

about any quality control requirements for refrigeration, we cannot find that they 

should exist or what they are; the ODH is in the best position to set forth those 

requirements. 
- 12 -

{¶52} “Our decision is supported by persuasive authority from our sister 

district. The Eleventh Appellate District was faced with an argument similar to the one 

made to us about the temperature of the refrigerator. It found the argument to be 

meritless and explained: 

{¶53} “‘While we agree with appellant that there was nothing in the record to 

indicate the exact temperature at which the calibration solution was stored, this is of 

no consequence. Ohio Adm.Code 3701-53-04 does not set forth a particular 

temperature range to store the solution. Rather, the regulation merely provides that 

the solution be kept refrigerated after first use.’ State v. McCardel (Sept. 28, 2001), 

11th Dist. No.2000-P-0092 (internal citations omitted). 

{¶54} “Therefore, considering the above cited cases and the testimony, there 

was substantial compliance and no basis for the suppression of the results of the 

BAC DataMaster breath test on the basis of the refrigeration of the calibration 

solution. This assignment of error lacks merit.” (Footnote omitted.) Id. at ¶50-56. 

{¶55} In this case, the parties stipulated to the admission of testimony and 

evidence on the refrigeration issue adduced in Calder. (Tr. 47-50.) Therefore, based 

on this court’s resolution of the refrigeration issue in Calder, Phillips’ third assignment 

is without merit. 

{¶56} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

Waite, J., concurs. 

DeGenaro, J., concurs.