[Cite as State v. Snow, 2015-Ohio-358.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

STATE OF OHIO 

 Appellee 

 v. 

GEORGE SNOW 

 Appellant 

C.A. No. 14CA0019-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

MEDINA MUNICIPAL COURT 

COUNTY OF MEDINA, OHIO 

CASE No. 13TRC01235 

DECISION AND JOURNAL ENTRY

Dated: February 2, 2015 

 

BELFANCE, Presiding Judge. 

{¶1} Defendant-Appellant George Snow appeals from the judgment of the Medina 

Municipal Court. For the reasons set forth below, we affirm. 

I. 

{¶2} Around midnight on March 10, 2013, Medina Township Police Officer Justin 

Harvey stopped the vehicle driven by Mr. Snow after Officer Harvey observed the vehicle 

traveling at 67 miles per hour on a road with a 55 mile per hour speed limit. Upon approaching 

the vehicle, Officer Harvey detected an odor of alcohol emanating from the vehicle and noticed 

that Mr. Snow had bloodshot and glassy eyes. Mr. Snow informed Officer Harvey that he had 

consumed two beers and that he finished his last one close to thirty minutes prior to the stop. 

After conducting field sobriety tests, Officer Harvey arrested Mr. Snow and transferred him to a 

state highway patrol post. There, a trooper administered a BAC Data Master Test to Mr. Snow 

which read .094. Upon moving Mr. Snow’s vehicle, a mason jar containing an alcoholic 
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beverage was discovered in the back seat. A complaint was filed alleging that Mr. Snow violated 

R.C. 4511.21(C), 4511.19(A)(1)(a), and 4511.19(A)(1)(d). 

{¶3} Mr. Snow waived a reading of the complaint and entered a not guilty plea. Mr. 

Snow’s counsel filed a motion to suppress. The trial court concluded that the initial stop of Mr. 

Snow was justified. It further found that the results of the field sobriety tests were inadmissible 

because the State failed to demonstrate they were conducted in substantial compliance with 

testing standards as required by R.C. 4511.19(D)(4)(b). Nonetheless, the trial court concluded 

that there was probable cause to arrest Mr. Snow and that the operator of the BAC machine was 

certified to administer the test. Ultimately, Mr. Snow entered a no contest plea to a violation of 

R.C. 4511.19(A)(1)(a), and the remaining charges were dismissed. The trial court sentenced Mr. 

Snow to 90 days in jail, suspended 80 of them, and ordered Mr. Snow to serve a year of 

probation. The trial court also fined Mr. Snow $1000 and suspended his driver’s license. Mr. 

Snow has appealed, raising two assignments of error for our review. 

II. 

ASSIGNMENT OF ERROR I 

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE 

ISSUE OF WHETHER THERE WAS REASONABLE SUSPICION TO 

CONDUCT FIELD SOBRIETY TESTS IN THE MOTION TO SUPPRESS. 

{¶4} Mr. Snow asserts in his first assignment of error that his trial counsel was 

ineffective for failing to file a motion to suppress concerning whether there was reasonable 

suspicion to conduct the field sobriety tests. We do not agree. 

{¶5} To establish ineffective assistance of counsel, Mr. Snow must demonstrate “(1) 

deficient performance by counsel, i.e., performance falling below an objective standard of 

reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel’s 
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errors, the proceeding’s result would have been different.” State v. Mundt, 115 Ohio St.3d 22, 

2007-Ohio-4836, ¶ 62. “There is a strong presumption in favor of the adequacy of counsel, and a 

defendant must demonstrate that any claimed errors are more than a disagreement over trial 

strategy.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 53. The “[f]ailure to file a 

suppression motion does not constitute per se ineffective assistance of counsel.” (Internal 

quotations and citations omitted.) State v. Madrigal, 87 Ohio St.3d 378, 389 (2000). “To 

establish ineffective assistance of counsel for failure to file a motion to suppress, a defendant 

must prove that there was a basis to suppress the evidence in question.” Brown at ¶ 65. “In 

addition, deficient performance cannot be demonstrated where the record fails to disclose the 

circumstances surrounding the alleged Fourth Amendment violation.” State v. Kendall, 9th Dist. 

Summit No. 25721, 2012-Ohio-1172, ¶ 7. “Furthermore, in order to satisfy the prejudice prong 

of the * * * test, a defendant must demonstrate that there was a reasonable probability that the 

motion to suppress would have been granted.” Id. 

{¶6} In the instant matter, trial counsel did file a motion to suppress. That motion 

asserted that (1) “[t]he officer did not have reasonable suspicion to stop, detain, or probable 

cause to arrest the defendant[;]” (2) “[t]he field sobriety tests and video should be suppressed or 

prohibited from being introduced at trial[;]” (3) “[t]he State failed to comply with the Ohio 

Administrative Code Testing Regulations[;]” and (4) “[t]he defendant’s statements should be 

suppressed.” Thus, while the motion did not specifically allege that the officer lacked reasonable 

suspicion to conduct the field sobriety tests, it did broadly assert that the officer lacked 

reasonable suspicion to detain Mr. Snow. It is true that there were very few questions posed 

about the basis justifying the field sobriety tests at the suppression hearing; however, it is 
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difficult to say that the scope of Mr. Snow’s motion did not embrace the issue of whether the 

officer lacked reasonable suspicion to conduct the field sobriety tests. 

{¶7} Moreover, we note that the motion to suppress evidences that trial counsel 

examined the discovery provided, which included watching the video of the stop. Additionally, 

it is important to point out that trial counsel’s motion was effective in part – trial counsel 

succeeded in getting the results of the field sobriety testing suppressed. 

{¶8} Even assuming that trial counsel did neglect to file a motion on the precise issue 

of whether there was reasonable suspicion justifying the field sobriety tests, we cannot say the 

record establishes that trial counsel would have been successful on the motion. 

{¶9} “[A] police officer does not need probable cause to conduct a field sobriety test; 

rather, he must simply have a reasonable suspicion of criminal activity.” (Internal quotations and 

citation omitted.) State v. Saravia, 9th Dist. Summit No. 25977, 2012-Ohio-1443, ¶ 10. Thus, 

“[t]o justify [the] particular intrusion, the officer must demonstrate specific and articulable facts 

which, taken together with rational inferences from those facts, reasonably warrant that 

intrusion.” (Internal quotations and citations omitted.) Maumee v. Weisner, 87 Ohio St.3d 295, 

299 (1999). “Rather than involving a strict, inflexible standard, its determination involves a 

consideration of the totality of the circumstances. Under this analysis, both the content of 

information possessed by police and its degree of reliability are relevant to the court’s 

determination.” (Internal quotations and citations omitted.) Id. Accordingly, decisions 

concerning the presence or absence of reasonable suspicion are highly fact intensive. See State 

v. Criswell, 162 Ohio App.3d 391, 2005-Ohio-3876, ¶ 8 (2d Dist.). 

{¶10} When Officer Harvey was asked the basis for administering the field sobriety 

tests, he specifically pointed to Mr. Snow’s bloodshot and glassy eyes, the fact that Mr. Snow 
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was speeding, and the odor of alcohol emanating from the vehicle. However, it is unclear 

whether Officer Harvey would have pointed to additional factors if the parties had been focused 

on this as an issue at the suppression hearing. As noted above, the record contains additional 

circumstances available to the officer which might tend to support the suspicion that Mr. Snow 

was intoxicated. There was evidence that it was late at night and that Mr. Snow had consumed 

two beers, one of which he finished approximately thirty minutes prior to the stop. See State v. 

Mossman, 10th Dist. Franklin No. 13AP-959, 2014-Ohio-2620, ¶ 13 (concluding that, taken 

together, the fact that defendant was speeding, that it was early in the morning, that there was an 

odor of alcohol in the vehicle, and that the defendant acknowledged alcohol consumption could 

justify field sobriety testing); see also Criswell, at ¶ 9; State v. Balog, 9th Dist. Medina No. 

08CA0001-M, 2008-Ohio-4292, ¶ 16 (reasonable suspicion existed to conduct field sobriety 

testing where officer notes strong odor of alcohol, defendant admits to drinking, has bloodshot, 

glassy eyes, and appeared disheveled). Given the totality of the circumstances, we cannot say 

that the likelihood of trial counsel’s success on a motion to suppress asserting lack of reasonable 

suspicion to conduct field sobriety test was “a given.” Brown, 115 Ohio St.3d 55, 2007-Ohio4837, ¶ 69. 

{¶11} For all the reasons discussed above, we cannot say that Mr. Snow has 

demonstrated that his trial counsel was ineffective. Accordingly, we overrule his first 

assignment of error. 

ASSIGNMENT OF ERROR II 

THE TRIAL COURT ERRED BY FINDING THAT THE ARRESTING 

OFFICER HAD PROBABLE CAUSE TO ARREST MR. SNOW FOR OVI. 
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{¶12} Mr. Snow argues in his second assignment of error that the trial court erred in 

denying his motion to suppress because the officer lacked probable cause to arrest Mr. Snow. 

We do not agree. 

{¶13} The Supreme Court of Ohio has held that 

[a]ppellate review of a motion to suppress presents a mixed question of law and 

fact. When considering a motion to suppress, the trial court assumes the role of 

trier of fact and is therefore in the best position to resolve factual questions and 

evaluate the credibility of witnesses. Consequently, an appellate court must 

accept the trial court’s findings of fact if they are supported by competent, 

credible evidence. Accepting these facts as true, the appellate court must then 

independently determine, without deference to the conclusion of the trial court, 

whether the facts satisfy the applicable legal standard. 

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. We 

review a probable cause determination de novo. State v. Vonalt, 9th Dist. Medina No. 

10CA0103-M, 2011-Ohio-3883, ¶ 10. 

{¶14} “An officer possesses probable cause to arrest a person for a violation of R.C. 

4511.19[ ] when the totality of the circumstances at the time of arrest would lead a reasonable 

person to believe that the person to be arrested is operating a vehicle while impaired.” (Internal 

quotations and citations omitted.) Id. As correctly noted by the trial court, in evaluating whether 

probable cause exists, an officer’s observations concerning a defendant’s performance on 

nonscientific standardized field sobriety tests are admissible even if the results are not. State v. 

Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 14-16; see also Vonalt at ¶ 12. 

{¶15} In the instant matter, as discussed above, there was evidence that Mr. Snow was 

speeding at the time of the stop, that he had bloodshot, glassy eyes, that it was approximately 

midnight, and that he had consumed two beers, one of which he finished approximately thirty 

minutes prior to the stop. Additionally, Officer Harvey testified concerning his observations of 

Mr. Snow’s performance on the field sobriety tests. In this regard, we note that there is nothing 
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in the record to suggest that the officer’s failure to substantially comply with the NHTSA 

standards in the administration of the field sobriety tests altered the tests to a degree that the 

officer’s observations about Mr. Snow’s performance of those tests could not be considered in 

determining whether probable cause existed. Officer Harvey indicated that Mr. Snow had 

difficulty complying with the instructions he provided for the horizontal gaze nystagmus test. 

Officer Harvey testified that he instructed Mr. Snow to follow the stimulus with only his eyes 

and Mr. Snow was following it with his head and eyes. Officer Harvey also observed that Mr. 

Snow failed to completely comply with his instructions on the walk and turn test. Officer 

Harvey averred that he “observed that [Mr. Snow] did not touch heel to toe on some steps. He 

almost lost his balance on quite a few. He did not turn in the prescribed manner that [was] 

demonstrated for him. Also he stepped off line and kicked his leg out to the left to try to steady 

himself.” Finally, Officer Harvey testified that, during the one-leg-stand test, Mr. Snow “swayed 

while he was balancing[.]” Moreover, the trial court was able to view the video of the stop to 

verify Officer Harvey’s observations with respect to Mr. Snow’s performance on the field 

sobriety tests. 

{¶16} In light of the totality of the circumstances before the trial court, we cannot say 

the trial court erred in concluding that Officer Harvey possessed probable cause to arrest Mr. 

Snow for violating R.C. 4511.19. See State v. Russo 9th Dist. Medina No. 09CA0009-M, 2009-

Ohio-6914, ¶ 12; State v. McGinty, 9th Dist. Medina No. 08CA0039-M, 2009-Ohio-994, ¶ 20; 

State v. Sunday, 9th Dist. Summit No. 22917, 2006-Ohio-2984, ¶ 33; Criswell, 162 Ohio App.3d 

391, 2005-Ohio-3876, at ¶ 9-10. We overrule Mr. Snow’s second assignment of error. 

III. 

{¶17} In light of the foregoing, we affirm the judgment of the Medina Municipal Court. 
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Judgment affirmed. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Medina Municipal 

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 EVE V. BELFANCE 

 FOR THE COURT 

WHITMORE, J. 

MOORE, J. 

CONCUR.

APPEARANCES:

JOSEPH C. PATITUCE and CATHERINE R. MEEHAN, Attorneys at Law, for Appellant. 

GREGORY HUBER, J. MATTHEW LANIER, RICHARD BARBERA, and JOHN G. 

QUILLIN, Prosecuting Attorneys, for Appellee.