[Cite as State v. Anglin , 2020-Ohio-2907.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsRICHARD ANGLIN Defendant-Appellant JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. : : : Case No. 2019 CA 00034 : : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield Cou nty Municipal Court, Case No. TRC1811704 JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 12, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant JOSEPH SABO BRADLEY NICODEMUS Lancaster Law Director’s Office 1409 West Market Street 136 West Main Street Baltimore, OH 43105 Box 1008 Lancaster, OH 43130[Cite as State v. Anglin , 2020-Ohio-2907.]
Gwin, P.J. {¶1} Defendant-appellant Richard Anglin [“Anglin”] appeals his convi ction and sentence after a jury trial in the Fairfield County Municipal C ourt. Facts and Procedural History 1 {¶2} On November 18, 2018, at approximately 1:00 a.m., Officer Richa rd Daily with the Pickerington Police Department was traveling nor thbound on State Route 256 when he performed a random registration check on a gray Hon da Civic. ST. at 8 2

. Upon being notified that the registered owner of the vehicle wa s under suspension, Officer Daily proceeded to turn his cruiser around to locate th e vehicle, which had already turned onto Stonecreek Drive South. Officer Daily pull ed into an access drive off Stonecreek Drive, where he then found the Honda Civic sitting i n the roadway behind a commercial establishment. As the vehicle pulled out of the par king lot onto Stonecreek, Officer Daily noticed the vehicle failed to use a left turn sig nal. ST. at 10. The encounter was recorded on Officer Daily’s cruiser camera. State’s Exhibi t A 3 ; ST. at 10. Officer Daily approached the driver’s side of the car and confirmed tha t Anglin did not have driving privileges. ST. at 11. In addition, Officer Daily det ected the odor of an alcoholic beverage coming from the driver-side window. ST. at 11. Offic er Daily observed a female in the front passenger seat. ST. at 12. Anglin denied consuming any alcohol,

1 Because four of the five Assignments of Error raised by Anglin are based upon the trial court’s failure to grant his Motion to Suppress, we shall set forth the facts that the trial court had before it when it decided Anglin’s Motion to Suppress.

2 For clarity sake, the Transcript of the Hearing on Anglin’s Mo tion to Suppress will be referred to as by volume and page number as “ST.” and the Transcript of the jury trial will be referred to by volume and page number as “JT.”

3 State’s Exhibit A consists of two disks. The first disk contai ns footage of the traffic stop; the second disk contains footage of the breath test conducted by Of ficer Daily upon Anglin.Fairfield County, Case No. 2019 CA 00034 3 but, when checking Anglin’s eyes while he was still inside his vehicle, Officer Daily noted that Anglin was unable to follow a stimulus with only his eyes. {¶3} Officer Daily first performed portions of the HGN on Anglin whi le Anglin was still seated in his vehicle, and with various flashing and strobing lights nearby. Anglin was then removed from his vehicle, the cruiser’s strobe lights were tuned off, and the HGN was again performed on Anglin while he was sitting on t he police cruiser bumper. Anglin informed Officer Daily that he had “blown out h is knee.” ST. at 25. Therefore, Anglin claimed that he was unable to perform the Wal k-and Turn test [“WAT”] of the One-Legged-Stand test [“OLS”]. {¶4} Officer Daily admitted that he had not observed any erratic dri ving. ST. at 48-49. Anglin’s speech was normal and not slurred. ST. at 49. The officer observed no fumbling, swaying, red, bloodshot eyes, or lack of coordination by Anglin. ST. 57. Officer Daily’s decision to require Anglin to perform the field sobriety tests was based solely upon the odor of alcohol and the fact that Officer Daily was advised that Anglin’s driving suspension was based upon a previous OVI. ST. at 16. Officer Daily’s decision to arrest Anglin for OVI was based upon Anglin’s refusal to per form the WAT and OLS tests, and the six clues he received from the HGN test. ST. at 26. {¶5} Anglin was transported to the Pickerington Police Department. W hile preparing Anglin for the BAC test, Officer Daily inadvertently pushed the “refusal” button on the breathalyzer causing the machine to abort. Officer Daily admits he threw that breath test ticket away. Officer Daily had Anglin resume his s eat at an adjacent table while Officer Daily began preparing the machine for a new breat h testing procedure. The second breath test ticket reported a breath-alcohol concent ration of .177. AnglinFairfield County, Case No. 2019 CA 00034 4 was then charged with operating a vehicle while impaired with a prohibited concentration of breath-alcohol, R.C. 4511.19(A)(1)(h), and a turn signal vio lation, R.C. 4511.39. {¶6} Prior to the beginning of trial, the state sought to prevent cr ossexamination of Officer Daily regarding certain matters, specifi cally the administration of the HGN test, and the trial court agreed. JT. at 28-31. The t rial court prohibited any questions as to whether Officer Daily performed the HGN test in substantial compliance with NHTSA standards, as the trial court had already overruled Anglin's Motion to Suppress. JT. at 58-62. {¶7} The jury found Anglin guilty of OVI, under R.C. 4511.19(A)(1)(h ), and the trial court found Anglin guilty of a turn signal violation, und er R.C. 4511.39. JT. at 135- 136. The trial court imposed a sentence of 180 days in jail, 1 20 days suspended, 20 days of actual incarceration, and the remainder of the days to be suspended pending future review hearings. Assignments of Error. {¶8} Anglin raises five Assignments of Error, {¶9} “I. 

### THE TRIAL COURT ERRED WHEN IT FOUND THAT A TURN SIGNAL IS REQUIRED WHEN EXITING A PRIVATE DRIVEWAY ONTO A PUBLIC ROADWAY AND THAT THE FAILURE TO SIGNAL SUCH A TURN WAS SUFFICIENT PROBABLE CAUSE TO E FFECTUATE A TRAFFIC STOP. {¶10} 

### “II. THE TRIAL COURT ERRED WHEN IT FOUND THE OFFICER HAD PERFORMED THE HGN TEST IN SUBSTANTIAL COMPLIANCE WITH NHTSA GUIDELINES AND THE OFFICER'S TRAINING.Fairfield County, Case No. 2019 CA 00034 5
{¶11} 

### “III. THE TRIAL COURT ERRED IN DETERMINING THERE WAS PROBABLE CAUSE TO ARREST MR. ANGLIN FOR OPERATING A MOTOR VEHIC LE WHILE IMPAIRED. {¶12} 

### “IV. THE TRIAL COURT ERRED WHEN IT DETERMINED THE OFFICER COMPLIED WITH THE APPLICABLE RECORDING KEEPING AND TESTING REGULATIONS DESPITE THE OFFICER ADMITTING AN EVIDENTIARY BREATH TEST TICKET WAS DESTROYED. {¶13} 

### “V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED MR. ANGLIN THE RIGHT TO PURSUE HIS DEFENSE BY PROHIBITIN G CROSS-EXAMINATION OF AN OFFICER WITH REGARDS TO ERRORS THE OFFICER MADE DURING HIS DETENTION AND ARREST OF MR. ANGLIN.” {¶14} Anglin’s first four Assignments of Error concern the trial cour t’s overruling his motion to suppress. STANDARD OF APPELLATE REVIEW. {¶15} Appellate review of a motion to suppress presents a mixed quest ion of law and fact. State v. Burnside , 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact a nd to evaluate witness credibility. See State v. Dunlap , 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d 988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a reviewing court must defer to the trial court's factual finding s if competent, credible evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v. Long , 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist. 1998); State v. Medcalf , 111Fairfield County, Case No. 2019 CA 00034 6 Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist. 1996). However, on ce this Court has accepted those facts as true, it must independently determine a s a matter of law whether the trial court met the applicable legal standard. See Burnside, supra, citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist. 1997); See, generally, United States v. Arvizu , 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That is, the application of the law to the trial court's findings of fact is subject to a de novo standard of review Ornelas, supra. Moreover, due weight should be given “to inferences drawn from those facts by resident judges and local law enforcement o fficers.” Ornelas, supra at 698, 116 S.Ct. at 1663. {¶16} It is with this Standard of Review in mind that we shall addres s Anglin’s Assignment of Error I through Assignment of Error IV. 

### I. {¶17} In his First Assignment of Error, Anglin contends Officer Daily made a traffic stop for a turn signal violation where no violation of the law occur red and his subjective interpretation of the law cannot validate an illegal traffic stop. 

### ISSUE FOR APPEAL. Did Officer Daily have a reasonable articulable suspicion sufficient to warrant Officer Daily in stopping the car that Anglin was driving? {¶18} The Fourth Amendment to the United States Constitution guarante es “[t]he right of the people to be secure in their persons, house s, papers, and effects, against unreasonable searches and seizures * * *.” The Fourth Amendment is enforced against the States by virtue of the due process clause of the F ourteenth Amendment ofFairfield County, Case No. 2019 CA 00034 7

the United States Constitution. Mapp v. Ohio , 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The stop of a vehicle and the detention o f its occupants by law enforcement, for whatever purpose and however brief the detenti on may be, constitutes a seizure for Fourth Amendment purposes. Delaware v. Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), citing United States v. Martinez-Fuerte , 428 U.S. 543, 556-558, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). {¶19} In State v. Mays , 119 Ohio St.3d 406, 894 N.E.2d 1204, 2008-Ohio-4538, the defendant argued that his actions in the case – twice drivi ng across the white edge line – were not enough to constitute a violation of the driving within marked lanes statute, R.C. 4511.33. Id. at ¶ 15. The appellant further argued that the stop was unjustified because there was no reason to suspect that he had failed to fi rst ascertain that leaving the lane could be done safely or that he had not stayed within his lane “as nearly as [was] practicable,” within the meaning of R.C. 4511.33(A)(1). In rejecting these arguments, the Supreme Court noted, “the question of whether ap pellant might have a possible defense to a charge of violating R.C. 4511.33 is irrel evant in our analysis of whether an officer has a reasonable and articulable suspicion t o initiate a traffic stop. An officer is not required to determine whether someone who has be en observed committing a crime might have a legal defense to the charge.” Id. at ¶ 17. The Supreme Court concluded that a law-enforcement officer who witnesses a motorist drift over lane markings in violation of a statute that requires a driver to dr ive a vehicle entirely within a single lane of traffic has reasonable and articulable suspicion sufficient to warrant a traffic stop, even without further evidence of erratic or unsaf e driving. Id. at syllabus. In Mays, the Ohio Supreme Court made the following observation as it per tains to Ohio law,Fairfield County, Case No. 2019 CA 00034 8 Appellant’s reliance on [ Dayton v .] Erickson [76 Ohio St.3d 3, 665 N.E.2d 1091 (1996)], and on Whren v. United States (1996), 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89, is misplaced. Probable ca use is certainly a complete justification for a traffic stop, but we have not held that probable cause is required. Probable cause is a stricter standard than reasonable and articulable suspicion. State v. Evans (1993), 67 Ohio St.3d 405, 411, 618 N.E.2d 162. The former subsumes the latter . Just as a fact proven beyond a reasonable doubt has by necessity been p roven by a preponderance, an officer who has probable cause necessari ly has a reasonable and articulable suspicion, which is all the officer needs to justify a stop. Erickson and Whren do not hold otherwise. 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23 (emph asis added). The Ohio Supreme Court concluded, Therefore, if an officer’s decision to stop a motorist for a cr iminal violation, including a traffic violation, is prompted by a reasonable and articulable suspicion considering all the circumstances, then the stop is constitutionally valid. 119 Ohio St.3d 406, ¶8 (emphasis added). {¶20} At the hearing on Anglin’s Motion to Suppress, Officer Daily te stified, Q. What was it that first drew your attention to the defendant ? A. Did a random registration check, was notified through my MDT that the registered was driving under suspension.Fairfield County, Case No. 2019 CA 00034 9 Q. And was there anything obstructing your view of the defenda nt's vehicle? A. No, Q. And where did you perform this registration check? A. It was approximately at Stonecreek and 256, He was going northbound as well on 256. ST. at 9. In Kanas v. Glover, a Kansas deputy sheriff ran a license plate check on a pickup truck, discovering that the truck belonged to respondent Glover and that Glover’s driver’s license had been revoked. 140 S.Ct. 1183, 2020 WL 166 8283 (Apr 6, 2020). The deputy pulled the truck over because he assumed that Glover was driving. Glover was in fact driving and was charged with driving as a habitual violator. Id. at syllabus. Glover moved to suppress all evidence from the stop, claiming t hat the deputy lacked reasonable suspicion. The District Court granted the motion, b ut the Court of Appeals reversed. The Kansas Supreme Court in turn reversed, holding t hat the deputy violated the Fourth Amendment by stopping Glover without reasonable susp icion of criminal activity. The United States Supreme Court granted Kansas’ petit ion for a writ of certiorari, 587 U. S. ––––, 139 S.Ct. 1445, 203 L.Ed.2d 680 (20 19), and reversed the decision of the Kanas Supreme Court, holding, When the officer lacks information negating an inference that t he owner is driving the vehicle, an investigative traffic stop mad e after running a vehicle’s license plate and learning that the registe red owner’s driver’s license has been revoked is reasonable under the Fourt h Amendment.Fairfield County, Case No. 2019 CA 00034 10
Glover, 140 S.Ct. 1183, 2020 WL 1668283(Apr 6, 2020) at 1187 – 1191. T he Ohio Supreme Court has emphasized that probable cause is not require d to make a traffic stop; rather the standard is reasonable and articulable suspici on. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4358, 894 N.E.2d 1204, ¶ 23. {¶21} A review of Officer Daily’s dashcam video reveals dispatch info rming Officer Daily that Anglin is under a suspension with driving pr ivileges before Officer Daily stops Anglin’s vehicle. State’s Exhibit A at 1:15. Officer Da ily asks Anglin for his driving privilege papers. Id. Officer Daily informs Anglin that he doe s not have privileges to pick someone up and Anglin agrees. State’s Exhibit A at 1:18. The stop was initiated at 1:17 a.m. ST. at 7. {¶22} Based upon the facts presented to the trial court during the ev identiary hearing on Anglin’s Motion to Suppress, the stop of Anglin’s ve hicle was constitutionally valid because Officer Daily ran the vehicle’s license plate and learned that the registered owner’s driver’s license was under suspension. Officer Daily wa s justified in stopping Anglin’s vehicle to determine if Anglin was driving in violatio n of his driving privileges based upon the hour and location of the stop. {¶23} “[A] reviewing court is not authorized to reverse a correct jud gment merely because erroneous reasons were assigned as a basis thereof.” State ex rel. Peeples v. Anderson 73 Ohio St.3d 559, 560, 653 N.E.2d 371, 373(1995); State ex rel. Cassels v. Dayton City School Dist. Bd. Of Edn. , 69 Ohio St.3d 217, 222, 631 N.E.2d 150(1998). Accord, State ex rel. v. McGinty v. Cleveland City School Dist. Bd. Of Edn ., 81 Ohio 283, 290, 1998-Ohio-471, 690 N.E.2d 1273(1998). {¶24} Daily’s First Assignment of Error is overruled.Fairfield County, Case No. 2019 CA 00034 11

II. {¶25} In his Second Assignment of Error, Anglin argues that Officer D aily’s performance of the first HGN field sobriety test was not done i n substantial compliance with the 

### standardized testing procedures; therefore the trial court erre d in failing to suppress the results of the test. ISSUE FOR APPEAL. Did Officer Daily perform the HGN test on Anglin in substantial compliance with the NHTSA standards? {¶26} 

### Anglin’s arguments center exclusively upon Officer Daily’s firs t performance of the HGN test. [Appellant’s Brief at 17-19]. Off icer Daily was outside the car and Anglin was seated inside the car. The cruiser’s ov erhead lights were on at the time the first test was performed. However, Officer Daily then removed Anglin from his car and again performed the HGN test. ST. at 59. Officer Daily can be seen turning off all of the lights on his cruiser before administeri ng the second HGN test. State’s Exhibit A at 1:21. {¶27} 

### Officer Daily observed six clues on the second HGN test. Angli n points to no specific part of the second HGN test that was not in subs tantial compliance with the regulations. [Appellant’s Brief at 20]. A review of the d ashcam video reveals that, after giving the necessary instructions and confirming that Ang lin understood those instructions, Officer Daily positioned his pen twelve to fiftee n inches in front of the Defendant's nose, slightly above eye level. See also , ST. at 19-20. Officer Daily then checked Anglin eyes for equal tracking, lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to forty-five degrees.Fairfield County, Case No. 2019 CA 00034 12 

### ST. at 20-24. Each portion of the HGN test was done in accorda nce with the NHTSA manual; however, it took Officer Daily approximately one hundre d seconds to administer the test due to Anglin’s moving his head, coughing a nd losing track of the stimulus at various times, requiring Officer Daily to instruct Anglin to hold his head still with his hands. ST. at 25; State’s Exhibit A at 1:24. See als o, State v. Loininaek , 5th Dist. Stark No. 2012CA00213, 2013-Ohio-2678, ¶I 31 (timing requ irements to complete the various elements of the HGN Test as set forth in t he NHTSA Manual are approximate; therefore, strict compliance is not required). {¶28} 

### The trial court correctly found that the second HGN test was do ne in substantial compliance with the testing regulations. {¶29} 

### Anglin’s Second Assignment of Error is overruled. III. {¶30} 

### In his Third Assignment of Error, Anglin contends that with no indicia of impairment and improperly administered HGN test; the trial cour t should not have determined there was probable cause to arrest Anglin. [Appella nt’s Brief at 22]. ISSUE FOR APPEAL. Did Officer Daily have probable cause to arrest Anglin for OVI? {¶31} 

### The Ohio Supreme Court has held, “[W]hen detaining a motorist for a traffic violation, an office r may delay the motorist for a time period sufficient to issue a ticket or a warning. State v. Keathley (1988), 55 Ohio App.3d 130, 131 [562 N.E.2d 932]. This measur e includes the period of time sufficient to run a computer check on the driver’s license, registration, and vehicle plates. State v. Bolden , Preble App. No.Fairfield County, Case No. 2019 CA 00034 13 

### CA2003–03–007, 2004–Ohio–184 [2004 WL 77617], ¶ 17, citing Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391 [59 L.Ed.2d 660]. “In determining if an officer completed these tasks within a reason able length of time, the court must evaluate the duration of the stop in light of the totality of the circumstances and consider whether the officer diligently c onducted the investigation.” State v. Carlson (1995), 102 Ohio App.3d 585, 598–599 [657 N.E.2d 591], citing State v. Cook (1992), 65 Ohio St.3d 516, 521–522 [605 N.E.2d 70], and U.S. v. Sharpe (1985), 470 U.S. 675, 105 S.Ct. 1568 [84 L.Ed.2d 605]. State v. Batchili , 113 Ohio St.3d 403, 2007–Ohio–2204, 865 N.E.2d 1282, ¶ 12. I n order to justify a continued detention beyond the normal period required to issue a citation the officer must have a “reasonable, articulable suspicion of criminal acti vity beyond that which prompted the initial stop.” Batchili , ¶ 15. “In determining whether a detention is reasonable, the court must look at the totality of the circumstances.” State v. Matteucci, 11th Dist. No.2001–L–205, 2003–Ohio–702, ¶ 30, citing State v. Bobo , 37 Ohio St.3d 177, 178, 524 N.E.2d 489(1988). {¶32} 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 ba sis for the request. State v. Albaugh , 5th Dist. Tuscarawas No. 2014 AP 11 0049, 2015-Ohio-3536, 201 5 WL 5096900, ¶18, quoting State v. Anez , 108 Ohio Misc.2d 18, 26–27, 738 N.E.2d 491 (2000). Although requiring a driver to submit to a field sobri ety test constitutes a seizure within the meaning of the Fourth Amendment, courts have general ly held that the intrusion on the driver’s liberty resulting from a field sobrie ty test is minor, and the officerFairfield County, Case No. 2019 CA 00034 14 therefore need only have reasonable suspicion that the driver i s under the influence of alcohol (or another drug) in order to conduct a field sobriety test. See State v. Bright , 5th Dist. Guernsey No. 2009–CA–28, 2010-Ohio-1111, ¶ 17, citing State v. Knox , 2nd Dist. Greene No. 2005–CA–74, 2006-Ohio-3039. Under a “totality of th e circumstances” approach, we look at the entirety of the events leading to the officer’s decision to conduct field sobriety tests. See, e.g., State v. Locker , 5th Dist. Stark App. No. 2015CA00050, 2015-Ohio-4953, ¶ 36, citing State v. Freeman , 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980). {¶33} “Reasonable suspicion is “* * * something more than an inchoate or unparticularized suspicion or hunch, but less than the level of s uspicion required for probable cause.” State v. Shepherd , 122 Ohio App.3d 358, 364, 701 N.E.2d 778 (2nd Dist.1997). “A court will analyze the reasonableness of the re quest based on the totality of the circumstances, viewed through the eyes of a reasonable a nd prudent police officer on the scene who must react to events as they unfold.” State v. Farey , 5th Dist. Stark No. 2017CA00137, 2018-Ohio-1466, ¶ 23, citing Village of Kirtland Hills v. Strogin , 6th Dist. Lake App. No.2005–L–073, 2006-Ohio-1450, ¶ 13 (internal c itation omitted). {¶34} In analyzing similar cases, we have accepted the template set forth by the Supreme Court of Ohio in State v. Batchili , 113 Ohio St.3d 403, 2007–Ohio–2204, 865 N.E.2d 1282, paragraph two of the syllabus: “The ‘reasonable an d articulable’ standard applied to a prolonged traffic stop encompasses the totality of the circumstances, and a court may not evaluate in isolation each articulated reason for the stop.” The intrusion on the drivers’ liberty resulting from a field sobriety test is minor, and the officer therefore need only have reasonable suspicion the driver is under the inf luence of alcohol in orderFairfield County, Case No. 2019 CA 00034 15 to conduct a field sobriety test. State v. Knox , 2nd Dist. Greene App. No. 2005–CA–74, 2006–Ohio–3039. See also, State v. Bright , 5th Dist. Guernsey App. No. 2009–CA–28, 2010–Ohio–1111. {¶35} 

### We have found in our discussion of Anglin’s Second Assignment o f Error that the HGN test was properly conducted in the case at bar. {¶36} In Ohio, it is well settled that, where a non-investigatory sto p is initiated and the odor of alcohol is combined with glassy or bloodshot ey es and further indicia of intoxication, such as an admission of having consumed alcohol, reasonable suspicion exists. State v. Wells , 2nd Dist. Montgomery No. 20798, 2005-Ohio-5008; State v. Cooper , 2nd Dist. Clark No.2001-CA-86, 2002-Ohio-2778; State v. Robinson , 2nd Dist. Greene No.2001-CA-118, 2002-Ohio-2933; State v. Mapes , 6th Dist. Fulton No. F-04- 031, 2005-Ohio-3359 (odor of alcohol, ‘slurred speech’ and glas sy and bloodshot eyes); Village of Kirtland Hills v. Strogin, 11th Dist. Lake No. 2005-L-073, 2006-Ohio-1450 ; State v. Beeley , 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, ¶16, New London v. Gregg , 6th Dist. Huron No. H-06-030, 2007-Ohio-4611; State v. Bright, 5th Dist. Guernsey No. 2009-CA-28, 2010-Ohio-111, ¶22. {¶37} 

### In the case at bar, Officer Daily’s probable cause to arrest An glin for OVI included the hour and location of the stop. The fact that Angl in was driving on a suspended license and in violation of his driving privileges. His admission to having consumed alcohol earlier in the day, after first denying having had any alcohol. A review of the dashcam video reveals that Anglin’s passenger was too intoxicated to drive the car. State’s Exhibit A at 1:25. She candidly admitt ed that she was over the legal limit. Id. When asked to perform the WAT and OLS tests, Anglin told OfficerFairfield County, Case No. 2019 CA 00034 16 

### Daily that he could not put his feet together or put one foot i n front of the other. State’s Exhibit A at 1:24. Officer Daily told Anglin the reason for hi s arrest is the clues received on the HGN test and the fact that Anglin was not able to perform the other Field Sobriety Tests. At one point, Deputy Daily asks Anglin i f he would agree to a breath test and Anglin agrees. State’s Exhibit A at 1:25. {¶38} 

### Based on the totality of facts and circumstances surrounding th is traffic stop, the trial court was correct in finding probable cause to place Anglin under arrest for OVI. {¶39} 

### Anglin’s Third Assignmen t of Error is overruled. IV. {¶40} 

### In his Fourth Assignment of Error, Anglin argues that since Off icer Daily and the Pickerington Police Department have failed to comply wi th OAC 3701-53-01, the trial court should have suppressed the results of Anglin's evidentiary breath test. [Appellant’s Brief at 23-24]. Anglin argues that Officer Daily failed to comply with the Ohio Department of Health (hereinafter "ODH") regulations for a dministering evidentiary breath tests because he discarded the first breath test ticket that was printed by the BAC Datamaster machine. {¶41} 

### Ohio Admin. Code, 3701-53-02 Breath Tests provides, in relevant part, (E) Breath samples using the instrument listed under paragraph (A)(3) of this rule shall be analyzed according to the instrume nt display for the instrument being used. The results of subject tests sha ll be retained in a manner prescribed by the director of health and s hall beFairfield County, Case No. 2019 CA 00034 17 

### retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code. Ohio Admin. Code 3701-53-01 provides in relevant part, (A) Tests to determine the concentration of alcohol may be applied to blood, breath, urine, or other bodily substances. Re sults shall be expressed as equivalent to: (1) Grams by weight of alcohol per one hundred milliliters of w hole blood, blood serum or plasma (grams per cent by weight); (2) Grams by weight of alcohol per two hundred ten liters of de ep lung breath; (3) Grams by weight of alcohol per one hundred milliliters of u rine (grams per cent by weight). (4) Nanograms by weight of a controlled substances or a metabolite or a controlled substance per milliliter of blood, u rine, or other bodily substance. The results of the tests shall be retained for not less than three
years. Emphasis added. Anglin argues that Officer Daily testified tha t he gave Anglin two evidentiary breath tests because there was some error on the fi rst test. He also testified that we do not know what the error was because he did not retai n the evidentiary breath ticket that machine produced. Anglin submits that Officer Daily 's testimony clearly establishes that he did not retain the test records and therefo re has not complied with OAC 3701-53-01 to retain test results for at least three years. [Appellant’s Brief at 23).Fairfield County, Case No. 2019 CA 00034 18
{¶42} The Supreme Court of Ohio has held that rigid compliance with O DH regulations is not required as such compliance is not always hu manly or realistically possible. State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986). See, also, State v. Morton, 12 th Dist. Warren No. CA98–10–131, 1999 WL 296700 (May 10, 1999). Rather, if the state shows substantial compliance with the regu lations, absent prejudice to the defendant, alcohol tests results can be admitted in a pr osecution under R.C. 4511.19. In State v. Burnside , 100 Ohio St.3d 152,159, 2003–Ohio–5372, 797 N.E.2d 71, the Ohio Supreme Court limited the substantial-compliance s tandard set forth in Plummer to “excusing only errors that are clearly de minimis.” The Cou rt continued: “Consistent with this limitation, we have characterized those e rrors that are excusable under the substantial-compliance standard as ‘minor procedural deviations.’ ” Id., citing State v. Homan , 89 Ohio St.3d 421, 426, 732 N.E.2d 952 (2000), superseded by statute as stated in State v. Schmitt, 101 Ohio St.3d 79, 2004–Ohio–37, 801 N.E.2d 446. 

### ISSUE FOR APPEAL. Was Officer Daily’s administration of the Breath Test conducted in substantial compliance with the regulations? Was Anglin prejudiced by the conduct of the Breath Test in his case? {¶43} Officer Daily’s administration of the Breath Test to Anglin was recorded and played as State’s Exhibit A. The footage corroborates Officer D aily’s testimony. {¶44} During the suppression hearing, Officer Daily testified that he did not keep the first breath test ticket printed by the BAC Datamaster mach ine because he accidentally entered that Anglin was refusing a breath test. ST. at 70. Vide o from the BAC room shows that Anglin was never instructed by law enforcement to place hi s mouth on the mouthpieceFairfield County, Case No. 2019 CA 00034 19 or to start blowing prior to the first test ticket being printe d. In addition, there was no tone emitted from the machine, indicating that Anglin was to start b lowing into the mouthpiece. The footage further reveals that prior to instructing Anglin to blow into the machine on the first attempt, Officer Daily can be seen standing at the machin e with Anglin. The machine emits a loud tone and aborts the testing procedure. Officer Da ily informs the other officer in the room that he pushed the wrong button. Officer Daily ins tructs Anglin to have a seat at an adjacent table. Officer Daily then begins the initiation sequence for a new breath test. When ready, Officer Daily calls Anglin over to the machi ne. Officer Daily instructs Anglin as to how and when to blow into the machine. When told to begin blowing into the machine, Anglin leans forward and down and begins to blow into the machine. {¶45} Anglin did not lean forward and down, nor did he place the mout hpiece into his mouth at any time during the first attempt at the breath te st. Officer Daily discarded the first ticket because it incorrectly indicated that Anglin had r efused to take a breath test, when, in actuality, Anglin had indicated his willingness to sub mit to a chemical test. Under the facts of the case at bar, we find this to be a de minimis d eviation from the regulation requiring that the “results” of a breath test be maintained for three years. We further find under the facts of the case at bar, Anglin’s arguments concerni ng contamination of the mouthpiece in between the time of the first and the second test to go to the weight, not the admissibility of the breath test. Anglin has failed in his burden to demonstrate that he has been prejudiced by the admission into evidence of the BAC t est in the case at bar. {¶46} Anglin’s Fourth Assignment of Error is overruled.Fairfield County, Case No. 2019 CA 00034 20

V. {¶47} In his Fifth Assignment of Error, Anglin argues that during his jury trial the State sought confirmation that o fficer Daily was in substantial compliance with the procedures for the administration of the HGN test. Anglin, ther efore, wished to ask questions regarding its administration — but not necessarily in troduce the NHTSA manual — so the jury could hear how HGN is supposed to be administered and how Officer Daily actually administered it. The trial court overruled Anglin’s r equest and attempts to elicit testimony on this subject. STANDARD OF APPELLATE REVIEW. {¶48} The Sixth Amendment of the United States Constitution guarantee s the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." Davis v. Alaska , (1974), 415 U.S. 308, 353. [Hereinafter referred to as " Davis "]. That right, incorporated in the Fourteenth Amendment and theref ore available in state proceedings under Pointer v. Texas , (1965), 380 U.S. 400, includes the right to conduct reasonable cross-examination. Davis , 415 U.S. at 315-316. {¶49} Reasonable cross-examination includes not only the opportunity to impeach a witness: “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subjec t always to the broad discretion of a trial judge to preclude repetitive and unduly h arassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionall y been allowed to impeach, i.e., discredit, the witness”. Davis , 415 U.S. at 316, but also the exposure of a witness' motivation in testifying: ‘A more particular attack o n the witness' credibility isFairfield County, Case No. 2019 CA 00034 21 effected by means of cross-examination directed toward revealin g possible biases, prejudices, or ulterior motives of the witness as they may rela te directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore Evidence Section 940, p. 775 (Chadbo urn rev. 1970). We have recognized that the exposure of a witness' motivation in t estifying is a proper and important function of the constitutionally protected right of c ross-examination. [415 U.S. 317]”. Greene v. McElroy , (1959), 360 U.S. 474, 496, 3 L.Ed. 2d 1377, 79 S.Ct. 1400. See also , Davis , 415 U.S. at 316-317. Olden v. Kentucky , (1988), 488 U.S. 227, 109 S.Ct. 48. [Hereinafter referred to as " Olden "]; Delaware v. Van Arsdall (1986), 475 U.S. 673, 678-679. [Hereinafter referred to as " Van Arsdall "]. {¶50} In Van Arsdall , the Court stated: “[t]he correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors incl ude the importance of the witness' testimony in the prosecution's case, whether the testi mony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination oth erwise permitted, and, of course, the overall strength of the prosecution's case. Cf. Harrington, 395 U.S., at 254, 23 L.Ed. 2d 284, 89 S.Ct. 1726; Schneble v. Florida , 405 U.S. at 432, 31 L.Ed. 2d 340, 92 S.Ct. 1056.”Fairfield County, Case No. 2019 CA 00034 22

ISSUE FOR APPEAL. Did the trial court properly limit Anglin from cross-examining Officer Daily during trial concerning his administration of the HGN test and the proper standards for administration of the HGN test? {¶51} Anglin submits that his questions were designed to demonstrate that an officer with little experience made a series of mistakes, which when compounded upon each other, led to an improper HGN test, an improper arrest, an invalid breath test, and therefore he was not guilty of the crime charged. [Appellant’s Brief at 26-27]. {¶52} Anglin was charged and found guilty of a “per se” violation und er R.C. 4511.19(A)(1)(d). In prosecutions for “under the influence” pu rsuant to R.C. 4511.19 (A)(1)(a), “the behavior of the defendant * * * is the crucial issue. However, in State v. Lucas , the Supreme Court observed, The per se offenses define “the point the legislature has determined an individual cannot drive without posing a substantial danger, not only to himself, but to others.” State v. Tanner (1984), 15 Ohio St.3d 1, 6, 15 OBR 1, 5, 472 N.E.2d 689, 693. In determining whether one of t hese per

se offenses was committed by the defendant, the trier of fact is not required to find that the defendant operated a vehicle while un der the influence of alcohol or drugs, but only that the defendant oper ated a vehicle within the state and that the defendant's chemical test reading was at the proscribed level. The cri tical issue at trial is the ac curacy of the test, not the behavior of the accused. See Katz & Sweeney, Ohio's Ne w DrunkFairfield County, Case No. 2019 CA 00034 23 Driving Law: A Halfhearted Experiment in Deterrence (1983-1984) , 34 Case W.Res.L.Rev. 239, 243. 40 Ohio St.3d 100, 103, 532 N.E.2d 130 (1988). The SFST’s are n ot determinative to a finding of whether 1). Anglin was operating a vehicle within t his state and 2). Whether at the time he had a concentration of eight-hundredths of one g ram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of his breath. In other words, the SFST’s are not necessary to the determination of guilt or innocence for a “per se “offense. {¶53} Therefore, even if we were to assume arguendo that the trial co urt erred in limiting the cross-examination of Officer Daily at trial, we wo uld nonetheless find that any error was harmless beyond a reasonable doubt. In the case at ba r, we find beyond a reasonable doubt, that the evidence of Officer Daily’s administ ration of the SFST’s to Anglin did not contribute to his conviction of an OVI as a “per se” violation under R.C. 4511.19(A)(1)(d). {¶54} Anglin’s Fifth Assignment of Error is overruled.Fairfield County, Case No. 2019 CA 00034 24
{¶55} The judgment of the Fairfield Co unty Municipal C ourt is affirme d.



### By Gwin, P.J., Wise, John, J. and Delaney, J., concur