[Cite as State v. Thompson, 2014-Ohio-2566.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

ASHTABULA COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2013-A-0033

 - vs - :

JAMES E. THOMPSON, :

 Defendant-Appellant. :

Criminal Appeal from the Conneaut Municipal Court, Case No. 12 TRC 1344. 

Judgment: Affirmed. 

Carly I. Prather, Assistant Conneaut Law Director, City Hall Building, 294 Main Street, 

Conneaut, OH 44030. (For Plaintiff-Appellee). 

William P. Bobulsky, William P. Bobulsky Co., L.P.A., 1612 East Prospect Road, 

Ashtabula, OH 44004. (For Defendant-Appellant). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellant, James E. Thompson, appeals the judgment of the Conneaut 

Municipal Court denying his motion to suppress evidence. Following the court’s ruling, 

appellant was convicted of operating a motor vehicle under the influence of alcohol and 

related charges based on his no contest plea. At issue is whether the state trooper had 

probable cause to stop appellant for traffic violations. For the reasons that follow, we 

affirm. 
 2

{¶2} On November 27, 2012, appellant was cited for operating a motor vehicle 

under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a); operating a motor 

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

4511.19(A)(1)(d); and a marked lane violation, in violation of R.C. 4511.33. Appellant 

pled not guilty to the charges and filed a motion to suppress. 

{¶3} The trial court held a suppression hearing. Trooper Michael Royko of the 

Ohio State Highway Patrol testified that on Wednesday, November 21, 2012, the night 

before Thanksgiving, at about 9:30 p.m., he was on routine patrol. At that time, the 

dispatcher advised him that an identified citizen had called in a report that the driver of a 

red Chevrolet Aveo was driving recklessly on Interstate 90 eastbound west of the State 

Route 7 exit. 

{¶4} Trooper Royko located the suspect vehicle and, while driving behind it, 

saw the driver, later identified as appellant, commit three marked lane violations by 

driving over the fog line on the right side of the road three times. 

{¶5} The trooper testified he also saw appellant following another vehicle too 

closely and continually braking his vehicle. The trooper said that, in order to travel at a 

safe distance behind another vehicle, for every ten miles per hour, the driver should 

maintain a distance of one car length. Appellant was driving at 50 mph so there should 

have been five car lengths between him and the car in front of him. However, appellant 

was travelling only three car lengths behind the car he was following. 

{¶6} Trooper Royko said he stopped appellant on the Route 7 exit ramp from 

Interstate 90 eastbound in Conneaut. He approached appellant’s vehicle on the driver’s 

side. As he made contact with appellant, he saw appellant’s eyes were bloodshot and 
 3

glassy. He also detected a moderate odor of an alcoholic beverage coming from inside 

the vehicle. 

{¶7} Trooper Royko asked appellant for his proof of insurance. In looking for it, 

appellant fumbled through papers in his glove compartment while dropping papers on 

the passenger floor. 

{¶8} Trooper Royko then asked appellant to exit his car and to take a seat in 

the front passenger seat of his cruiser. Once appellant was seated in the cruiser, the 

trooper noticed a moderate odor of alcohol coming from him. The trooper again saw 

that appellant’s eyes were bloodshot and glassy. 

{¶9} Because Trooper Royko suspected appellant was under the influence of 

alcohol, he asked him to perform field sobriety tests and he complied. The trooper 

administered the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the 

one-leg-stand test. Trooper Royko said he was taught how to administer each of these 

tests in the Alcohol Detection, Apprehension, and Prosecution course he took at the 

police academy. He said that before each test, he instructed appellant on how to 

perform the test. Appellant failed all three field sobriety tests. 

{¶10} Trooper Royko concluded that, based on his experience, training, 

education, and observation of appellant’s performance of the field sobriety tests, 

appellant was under the influence of alcohol. He arrested appellant for operating a 

motor vehicle under the influence. The trooper then transported him to the Conneaut 

Police Department. Upon arrival at the station, Trooper Royko asked appellant to 

submit to a breathalyzer test and he complied. The result of appellant’s test was .145, 

nearly twice the legal limit. 
 4

{¶11} Trooper Royko testified his cruiser was equipped with a dash camera. He 

started recording when he began following appellant and saw appellant commit a 

marked lane violation. He ended the recording when they entered the sally port of the 

police department. The state played the video in court. 

{¶12} Appellant did not present any witnesses or evidence on his behalf. Thus, 

the state’s evidence was undisputed. 

{¶13} Following the hearing, the trial court entered judgment denying appellant’s 

motion to suppress. The court found the video showed his vehicle was weaving in its 

lane and went over the fog line six times. Further, the court found the video shows 

appellant was operating his vehicle too closely to the vehicle ahead of him and did not 

maintain a safe distance from that vehicle. The court thus found that Trooper Royko 

had legal grounds to stop appellant. Further, the court found the trooper noticed that 

appellant’s eyes were bloodshot and glassy and that he had a moderate odor of alcohol 

about him. Thus, the court found the trooper had sufficient grounds to ask appellant to 

submit to field sobriety tests. The court found that Trooper Royko administered the 

HGN test, the walk-and-turn test, and the one-leg-stand test in substantial compliance 

with NHTSA standards, following which he arrested appellant and administered a breath 

test. 

{¶14} Appellant subsequently pled no contest to operating a motor vehicle under 

the influence of alcohol and a marked lane violation. The court accepted the plea and 

found appellant guilty of these charges. The court sentenced him to 33 days in jail, 

suspending 30 days on the condition that he complete an alcohol intervention program. 

The court stayed execution of the sentence pending appeal. 
 5

{¶15} Appellant appeals the trial court’s denial of his motion to suppress, 

asserting three assignments of error. For his first assigned error, he alleges: 

{¶16} “The trial court erred in failing to grant Appellant’s Motion to Suppress 

evidence based upon the absence of probable cause to stop Appellant’s vehicle.” 

{¶17} Appellate review of a trial court’s ruling on a motion to suppress evidence 

presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, ¶8. During a hearing on a motion to suppress evidence, the trial judge acts 

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

credibility of the witnesses. Id. An appellate court reviewing a motion to suppress is 

bound to accept the trial court’s findings of fact where they are supported by some 

competent, credible evidence. State v. Norwood, 11th Dist. Lake No. 2012-L-094, 2013-

Ohio-4293, ¶16. Accepting these facts as true, the appellate court independently 

reviews the trial court’s legal determinations de novo. State v. Djisheff, 11th Dist. 

Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶19. 

{¶18} First, appellant argues that his stop was based on an anonymous tip and 

that such tips are inadequate to provide reasonable suspicion to justify a stop. 

However, the tip in this case was not anonymous. To the contrary, the informant was a 

citizen driver who provided his name and address when he made his report to the 911 

operator. Such informants are presumed reliable. Norwood, supra, at ¶21. In any 

event, appellant’s argument lacks merit because Trooper Royko stopped appellant 

based on his own observations of appellant’s traffic violations and erratic driving, rather 

than information provided by the informant. In State v. Pandolfi, 11th Dist. Lake No. 

2001-L-061, 2002-Ohio-7265, an identified citizen reported the defendant was driving 
 6

erratically. The officer located the defendant and saw him drive left of center. This 

court held the officer had probable cause for the stop based on his own observations, 

but that, even if he had not seen the defendant’s erratic driving, the informant’s tip 

would have provided reasonable suspicion for the stop. Id. at ¶33, 26. 

{¶19} Second, appellant argues that Trooper Royko did not have probable 

cause to stop his vehicle because the trooper only testified that appellant crossed the 

fog line on the right side of the road three times. 

{¶20} A stop is constitutional if it is supported by probable cause. Ravenna v. 

Nethken, 11th Dist. Portage No. 2001-P-0040, 2002-Ohio-3129, ¶30-31. 

{¶21} Moreover, “where a police officer stops a vehicle based on probable cause 

that a traffic violation has occurred or was occurring, the stop is not unreasonable under 

the Fourth Amendment to the United States Constitution * * *.” Dayton v. Erickson, 76 

Ohio St.3d 3, 11 (1996). This court has held that if a police officer observes any traffic 

law violation, sufficient grounds exist for the officer to stop the vehicle. State v. 

Wojtaszek, 11th Dist. Lake No. 2002-L-016, 2003-Ohio-2105, ¶16, citing State v. 

Brownlie, 11th Dist. Portage Nos. 99-P-0005 and 99-P-0006, 2000 Ohio App. LEXIS 

1450, *6 (Mar. 31, 2000), citing Erickson, supra, at 11-12. Where a police officer 

witnesses a minor traffic violation, the officer is justified in making a limited stop for the 

purpose of issuing a citation. Brownlie, supra; State v. Brickman, 11th Dist. Portage No. 

2000-P-0058, 2001 Ohio App. LEXIS 2575, *5 (June 8, 2001). 

{¶22} Further, in State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, the 

Supreme Court of Ohio held that where the trooper observed the defendant cross the 

fog line twice, the trooper reasonably concluded that the defendant’s driving violated 
 7

R.C. 4511.33, and the trooper not only had a reasonable and articulable suspicion to 

stop appellant’s vehicle, he also had probable cause. Id. at ¶24. 

{¶23} Here, Trooper Royko testified that he saw appellant commit three 

separate marked lane violations by driving over the fog line three times. Upon 

reviewing the dash-cam video, the trial court found that the video documented six 

marked lane violations. R.C. 4511.33 provides: “A vehicle * * * shall be driven, as 

nearly as is practicable, entirely within a single lane or line of traffic and shall not be 

moved from such lane or line until the driver has first ascertained that such movement 

can be made with safety.” Appellant presented no evidence that, before crossing the 

fog line, it was not practicable to drive entirely within one lane of traffic or that before 

crossing the fog line, he first ascertained that such movement could be safely made. 

Thus, appellant presented no evidence justifying his crossing over the fog line. In 

addition, Trooper Royko observed appellant following another vehicle too closely, in 

violation of R.C. 4511.34(A) (“[t]he operator of a motor vehicle * * * shall not follow 

another vehicle * * * more closely than is reasonable or prudent * * *.”). 

{¶24} Appellant’s reliance on Wickliffe v. Petway, 11th Dist. Lake Nos. 2011-L101 and 2011-L-102, 2012-Ohio-2439, is misplaced because in Petway, the defendant’s 

vehicle did not cross the marked lane; rather, the defendant’s vehicle’s left tires briefly 

went onto the center line dividing the lanes without passing into the neighboring lane. 

In contrast, here, the trooper testified, and the trial court found, that appellant’s vehicle 

went over the fog line. Appellant concedes in his brief that he “crossed” the fog line 

three times. Our review of the video confirms that his vehicle crossed over the fog line 

several times. 
 8

{¶25} Appellant also argues the trial court abused its discretion in finding that 

appellant activated his turn signal more than a mile before his exit and that he was 

driving too closely to the vehicle in front of him because appellant was not charged with 

offenses based on this conduct. However, in State v. Batchili, 113 Ohio St.3d 403, 

2007-Ohio-204, the Supreme Court of Ohio stated that “the constitutionality of a * * * 

traffic stop does not depend on the issuance of a citation.” Id. at ¶21. Further, “[t]he 

failure to issue a traffic citation when there is an indication of a potentially far more 

significant crime is easily excused when more pressing issues are being addressed.” 

Id. at ¶20. Here, appellant was charged with operating a motor vehicle under the 

influence of alcohol, a far more serious offense than driving too closely to the vehicle in 

front of him or failing to properly activate his turn signal. In any event, while appellant 

was not cited for these additional traffic violations, the trial court’s findings concerning 

them were pertinent to whether the trooper had probable cause to stop appellant. 

{¶26} Because appellant crossed over the fog line at least three times, in 

violation of R.C. 4511.33, and followed a vehicle too closely, in violation of R.C. 

4511.34(A), the trial court did not err in finding that Trooper Royko had probable cause 

to stop him. 

{¶27} Appellant’s first assignment of error is overruled. 

{¶28} For his second assignment of error, appellant contends: 

{¶29} “Defendant-Appellant alleges that the Trial Court erred in failing to grant 

Appellant’s Motion to Suppress evidence based upon the undertaking of field sobriety 

tests and breath tests of Appellant without probable cause.” 
 9

{¶30} As noted above, when a police officer observes a traffic violation, he is 

justified in initiating a limited stop for the purpose of issuing a citation. Brickman, supra.

However, a request that a driver perform field sobriety tests constitutes a greater 

invasion of liberty than the initial stop, and “must be separately justified by specific, 

articulable facts showing a reasonable basis for the request.” State v. Evans, 127 Ohio 

App.3d 56, 63 (11th Dist.1998). Whether a request to perform field sobriety tests was 

reasonable is to be considered under the totality of the circumstances. Evans, supra, at 

63. Appellant argues that Trooper Royko improperly detained him in order to conduct 

field sobriety tests. 

{¶31} In Evans, this court set forth a non-exclusive list of factors to be 

considered when determining whether a police officer has a reasonable suspicion of 

intoxication justifying the administration of field sobriety tests. That list, on which no one 

factor is dispositive, consists of the following: 

{¶32} (1) the time and day of the stop (Friday or Saturday night as 

opposed to, e.g., Tuesday morning); (2) the location of the stop 

(Whether near establishments selling alcohol); (3) any indicia of 

erratic driving before the stop that may indicate a lack of 

coordination (speeding, weaving, unusual braking, etc.); (4) 

whether there is a cognizable report that the driver may be 

intoxicated; (5) the condition of the suspect’s eyes (bloodshot, 

glassy, glazed, etc.); (6) impairments of the suspect’s ability to 

speak (slurred speech, overly deliberate speech, etc.); (7) the odor 

of alcohol coming from the interior of the car, or more significantly, 
 10

on the suspect’s person or breath; (8) the intensity of that odor, as 

described by the officer (‘very strong,’ ‘strong,’ ‘moderate,’ ‘slight,’ 

etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); 

(10) any actions by the suspect after the stop that might indicate a 

lack of coordination (dropping keys, falling over, fumbling for a 

wallet, etc.); and (11) the suspect’s admission of alcohol 

consumption, the number of drinks had, and the amount of time in 

which they were consumed, if given. All these factors, together with 

the officer’s previous experience in dealing with drunken drivers, 

may be taken into account by a reviewing court in determining 

whether the officer acted reasonably. Id. at f.n.2. 

{¶33} In Brickman, supra, this court stated that “courts generally approve an 

officer’s decision to conduct field sobriety tests when [the] officer’s decision was based 

on a number of factors [set forth in Evans].” Brickman, supra, at *8, quoting Evans, 

supra. 

{¶34} Here, several Evans factors were present. First, the stop occurred the 

night before Thanksgiving. Second, substantial evidence was presented of appellant’s 

erratic driving before the stop. Appellant concedes he “crossed” the fog line three 

times. The trial court found, based on the video, that appellant was weaving and 

crossed the fog line six times. Further, appellant was driving too closely to and did not 

maintain a safe distance from the vehicle in front of him. In addition, the trooper stated 

that appellant was continually braking his vehicle. Third, the trooper noticed that 

appellant’s eyes were glassy and bloodshot. Fourth, the trooper detected an odor of 
 11

alcohol coming from the vehicle. It is noteworthy that appellant was the only individual 

in the vehicle. Further, while the trooper was seated next to appellant in his cruiser, the 

trooper detected an odor of alcohol coming from appellant’s person. Fifth, the trooper 

described the intensity of the odor of alcohol coming from appellant’s vehicle and later 

from appellant himself as moderate, as opposed to slight. Sixth, in attempting to 

respond to the trooper’s request for his proof of insurance, appellant was fumbling 

through papers in his glove compartment, dropping various papers to the floor of the 

passenger compartment. 

{¶35} In addition, Trooper Royko described his extensive experience in dealing 

with drunk drivers. He said he has arrested about 150 impaired drivers. He has also 

witnessed another 100 impaired drivers while on traffic stops with other troopers. 

{¶36} In light of the presence of the foregoing Evans factors and Trooper 

Royko’s extensive experience in dealing with drunk drivers, the trial court did not err in 

finding the trooper had a sufficient basis to ask appellant to submit to field sobriety tests. 

{¶37} Appellant’s second assignment of error is overruled. 

{¶38} For his third and final assignment of error, appellant alleges: 

{¶39} “The trial court erred in failing to suppress the results of field sobriety 

tests.” 

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

R.C. 4511.19 by the General Assembly in 2003, field sobriety tests need not be 

conducted in strict compliance with standardized testing procedures. State v. Schmitt, 

101 Ohio St.3d 79, 2004-Ohio-37, ¶9. “Instead, an officer may now testify concerning 
 12

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

standards.” Id. 

{¶41} R.C. 4511.19(D)(4)(b) provides that evidence and testimony regarding the 

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

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.” 

{¶42} As a preliminary matter, the state argues that appellant’s allegations in his 

suppression motion with regard to the field sobriety tests were not specific and therefore 

only required the state to present general testimony to demonstrate substantial 

compliance. We note the only allegation made by appellant in his motion to suppress 

regarding field sobriety tests was that the state failed to administer them in substantial 

compliance with applicable standards. Appellant did not allege any specific grounds for 

suppressing the field sobriety test results. This court has held that an accused’s failure 

to provide any specificity in his motion to suppress relieves the state of the duty to 

specifically address the regulatory standards for such tests. State v. Barnett, 11th Dist. 

Portage No. 2006-P-0117, 2007-Ohio-4954, ¶28. 

{¶43} This court in Barnett held that, in order to require a hearing on a motion to 

suppress evidence, the defendant must state the motion’s factual and legal bases with 

sufficient particularity to place the prosecutor and the court on notice of the issues to be 

decided. Id. at ¶29, citing State v. Shindler, 70 Ohio St.3d 54 (1994), syllabus. Further, 
 13

only after the defendant satisfies his burden of giving notice of the issues to be 

determined does the burden shift to the state to prove it substantially complied with the 

regulations. Id. at ¶30. In order to require the state to respond specifically to issues 

raised in a motion to suppress, the defendant must raise issues that are supported by 

facts specific to those issues. Id. at ¶31. Unless the defendant sets forth facts that 

support the allegations that specific regulations have been violated in some specific 

way, the burden on the state to show substantial compliance with those regulations 

remains general and slight. Id. at ¶32. 

{¶44} In Barnett, the defendant’s motion to suppress contained no specific 

factual allegations and no legal bases in support. Barnett simply made the conclusory 

statement that the officer failed to comply with the NHTSA manual. This court held that, 

because the defendant failed to specify in his motion the NHSTA standards that were 

allegedly violated, the officer’s general testimony that his testing procedures complied 

with the NHSTA manual was sufficient to overcome appellant’s motion to suppress. Id. 

at ¶35. 

{¶45} Here, appellant failed to specify in his motion the NHSTA standards that 

were allegedly violated. He simply said the state failed to administer the field sobriety 

tests in substantial compliance with applicable standards. As a result, the trooper’s 

general testimony that his testing procedures complied with the standard procedures for 

such tests was sufficient to overcome appellant’s motion to suppress. 

{¶46} Appellant argues the state failed to present evidence of the NHTSA or 

other testing standards and the trooper’s substantial compliance with those standards. 

We do not agree. 
 14

{¶47} Trooper Royko testified that he has had training in the administration of 

field sobriety tests at the police academy in the Alcohol Detection, Apprehension, and 

Prosecution course involving drunk drivers. He is also an instructor of this course. 

Further, he has been certified as a drug and alcohol detection expert. 

{¶48} Appellant conceded during the suppression hearing that the HGN test, the 

walk-and-turn test, and the one-leg-stand test, which Trooper Royko administered to 

him, are all included in the National Highway Traffic Safety Administration (NHTSA) 

manual and that Ohio courts have recognized each of these tests as reliable. 

{¶49} Trooper Royko said he first administered the HGN test to appellant. The 

trooper described the standard procedure for administering this test. He said the officer 

is to hold the stimulis (usually a pen) about twelve inches from the defendant’s face. 

The officer instructs the defendant to follow the tip of the pen with his eyes and not to 

move his head. The officer moves the stimulis gradually out of the defendant’s field of 

vision. He said that “nystagmus” is the inadvertent jerking of the eye and that, 

according to the NHTSA, the onset of nystagmus at an angle less than 45 degrees 

indicates the defendant is under the influence of alcohol. The officer checks each of the 

defendant’s eyes to determine whether nystagmus occurs at an angle less than 45 

degrees. In addition to Trooper Royko’s reference to the NHTSA in connection with this 

test, we note that the standard procedure for this test as described by the trooper is the 

procedure adopted by the NHTSA manual. See State v. Brooks, 11th Dist. Lake No. 

2011-L-049, 2013-Ohio-58, ¶8. Trooper Royko said he has administered the HGN test 

about 300 times. 
 15

{¶50} Trooper Royko said he administered the HGN test to appellant in 

compliance with this standard procedure, and appellant exhibited all six clues of 

impairment in each eye, indicating appellant was impaired due to alcohol consumption. 

{¶51} Next, Trooper Royko administered the walk-and-turn test to appellant. He 

described the standard procedure for administering this test. This test has two phases, 

the instructional phase and the walking phase. In the instructional phase, the officer 

instructs the defendant to imagine a straight line; to put his right foot in front of his left 

foot, touching heel to toe; to keep his hands down at his sides; and to stay in that 

position until given instructions. In the walking phase, the officer instructs the defendant 

to take nine heel-to-toe steps on the line, turn, and then take nine heel-to-toe steps 

back. The officer demonstrates the first three steps and the turnaround. The standard 

procedure for this test as described by Trooper Royko is the procedure adopted by the 

NHTSA manual. See Brooks, supra, at ¶14. The trooper said he has administered this 

test about 200 times. 

{¶52} The trooper said he administered this test to appellant in compliance with 

this standard procedure. Appellant was unable to keep his balance three times. At one 

point, he lost his balance and almost fell over. Appellant exhibited eight clues of 

impairment, indicating he was impaired. 

{¶53} Finally, Trooper Royko administered the one-leg-stand test. He described 

the standard procedure for administering this test. He said the officer tells the defendant 

to put his hands down at his sides and to keep his feet together. The officer then tells 

the defendant that, when instructed, he is to elevate his foot six inches off the ground. 

He can raise either foot, but his foot must be parallel to the ground. He is then to look at 
 16

the tip of the elevated toe and to count out loud, 1001, 1002, etc. until he is told to stop. 

If he puts his foot down for any reason, he is to pick it back up and continue counting 

from where he left off. The officer then demonstrates the test. The standard procedure 

for this test as described by Trooper Royko is the procedure adopted by the NHTSA 

manual. See Brooks, supra, at ¶10. The trooper said he has administered this test 

about 200 times. 

{¶54} The trooper said he administered this test to appellant in compliance with 

this standard procedure. Appellant swayed; lowered his foot; and, after counting to 

1007, put his foot down and said that was all he could do. Appellant exhibited all four 

clues of impairment, which indicated he was impaired. 

{¶55} Because Trooper Royko adhered to procedures adopted by the NHTSA 

manual in administering the field sobriety tests, the trial court did not err in finding that 

the trooper administered these tests in substantial compliance with those standards. 

{¶56} Appellant’s third assignment of error is overruled. 

{¶57} For the reasons stated in this opinion, the assignments of error lack merit 

and are therefore overruled. It is the order and judgment of this court that the judgment 

of the Conneaut Municipal Court is affirmed. 

DIANE V. GRENDELL, J., 

THOMAS R. WRIGHT, J., 

concur.