[Cite as State v. Tackett, 2011-Ohio-6711.]

 IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellant : C.A. CASE NO. 2011-CA-15 

vs. : T.C. CASE NO. TRC 1004201 

BRANDON TACKETT : (Criminal Appeal from 

 Common Pleas Court) 

Defendant-Appellee : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 23rd day of December, 2011. 

 . . . . . . . . . 

Betsy A. Deeds, Atty. Reg. No. 0076747, Assistant Fairborn 

Prosecutor, 510 West Main Street, Fairborn, OH 45324 

Attorneys for Plaintiff-Appellee 

Terry L. Lewis, Atty. Reg. No. 0010324, 111 W. First Street, Suite 

1000, Dayton, OH 45402 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant, Brandon Tackett, appeals from his conviction 

and sentence for operating a motor vehicle while under the influence 

of alcohol. 

{¶ 2} On May 2, 2010, between 2:00 a.m. and 3:00 a.m., Ohio 
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Highway Patrol Trooper D. Howard was patrolling westbound on 

Colonel Glenn Highway when he observed Defendant’s vehicle back 

out of a tavern parking lot onto Colonel Glenn Highway ahead of 

him. While following behind Defendant’s vehicle, Trooper Howard 

observed that Defendant’s vehicle traveled over the right fog line 

by approximately one foot, then traveled over the lefthand double 

yellow lines, drifted right, then traveled over the lefthand double 

yellow lines, and then traveled right six to eight inches over 

the fog line. 

{¶ 3} Trooper Howard activated his overhead emergency lights 

to initiate a traffic stop. In response, Defendant turned left 

onto Old Yellow Springs Road and then turned right onto a side 

road where he came to a stop. At the time of the stop, Defendant’s 

vehicle remained in the right lane of traffic on the side road. 

{¶ 4} Upon making contact with Defendant, Trooper Howard 

noticed that Defendant’s speech was slurred, his eyes were glassy 

and bloodshot, and that a strong odor of alcohol was coming from 

Defendant’s breath. Trooper Howard also noticed that Defendant’s 

head led the direction of his eyes. Based on these observations 

and for his personal safety, Trooper Howard asked Defendant to 

exit his vehicle. After Defendant exited his vehicle, Trooper 

Howard asked Defendant if he had consumed any alcohol that night. 

 Defendant responded that he had consumed a couple of beers. 
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{¶ 5} Trooper Howard asked Defendant to perform several field 

sobriety tests and Defendant consented. Trooper Howard had 

Defendant perform the horizontal gaze nystagmus test, the vertical 

nystagmus test, the walk-and-turn test, and the one-leg stand test. 

 On the horizontal gaze nystagmus test, Trooper Howard detected 

six out of a possible six clues and also observed vertical 

nystagmus. On the walk-and-turn test, Trooper Howard detected 

five clues out of a potential eight. On the one-leg stand test, 

Trooper Howard observed two clues. Following the administration 

of the field sobriety tests, Trooper Howard placed Defendant under 

arrest, handcuffed him, and advised him of his Miranda rights. 

Defendant subsequently refused administration of the chemical test 

to determine his blood alcohol content. 

{¶ 6} Defendant was charged with operating a vehicle while 

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

operating a vehicle while under the influence and refusing the 

chemical test with a prior conviction within twenty years in 

violation of R.C. 4511.19(A)(2), and failure to drive within marked 

lanes in violation of R.C. 4511.33. Defendant filed a motion to 

suppress evidence obtained during the traffic stop. On January 

28, 2011, following two days of hearing, the trial court overruled 

Defendant’s motion in part and granted it in part. Defendant 

entered a plea of no contest to a violation of R.C. 4511.19(A)(2) 
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and was sentenced on January 31, 2011. The remaining two charges 

were dismissed. 

{¶ 7} Defendant filed a timely notice of appeal. 

ASSIGNMENT OF ERROR

{¶ 8} “THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT 

APPELLANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED SUBSEQUENT TO 

THE APPELLANT BEING ORDERED TO LEAVE HIS MOTOR VEHICLE.” 

{¶ 9} In considering a motion to suppress, the trial court 

assumes the role of trier of fact and is in the best position to 

resolve factual questions and evaluate the credibility of the 

witnesses. State v. Mills (1992), 62 Ohio St.3d 357. 

Consequently, in reviewing a trial court’s decision on a motion 

to suppress, an appellate court must accept the trial court’s 

findings of fact if they are supported by competent, credible 

evidence. State v. Curry (1994), 95 Ohio App.3d 93, 96, citing 

State v. Schiebel (1990), 55 Ohio St.3d 71. An appellate court, 

however, determines as a matter of law, without deferring to the 

trial court’s conclusions, whether the law has been appropriately 

applied to those facts. Id., citing State v. Claytor (1993), 

85 Ohio App.3d 623. 

{¶ 10} On appeal, Defendant does not contest that his initial 

stop for traffic violations was lawful. Dayton v. Erickson, 76 

Ohio St.3d 3, 1996-Ohio-431. Rather, Defendant claims that the 
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police officer lacked the reasonable suspicion that he was driving 

his vehicle while under the influence of alcohol necessary to 

justify continuing his detention for further investigation for 

driving under the influence by conducting field sobriety tests. 

State v. Evans (1998), 127 Ohio App.3d 56. 

{¶ 11} The trial court found that: 

{¶ 12} “Trooper Howard had reasonable and articulable suspicion 

to detain the defendant. At the time that the trooper requested 

the defendant to exit the vehicle the troop [sic] knew of the 

above-described driving, that he detected a strong odor of an 

alcoholic beverage emitting from the defendant’s breath, that 

defendant’s head led the direction of his eyes, that defendant’s 

eyes were bloodshot and glassy, and that defendant’s speech was 

slurred. Based upon these observations, the Court finds that the 

trooper had reasonable and articulable suspicion to detain the 

defendant further.” (Dkt. 95.) 

{¶ 13} Defendant relies upon previous decisions of this court 

wherein we stated that an odor of alcohol, or a slight odor of 

alcohol, coupled with a de minimus traffic violation, glassy 

bloodshot eyes, and an admission to having consumed one or two 

beers, was insufficient to create a reasonable suspicion of 

driving under the influence and justify the administration of field 

sobriety tests. State v. Spillers (Mar. 24, 2000), Darke App. No. 
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1504; State v. Dixon (Dec. 1, 2000), Greene App. No. 2000-CA-30. 

 This court has, however, repeatedly held that a strong odor of 

alcohol alone is sufficient to provide an officer with reasonable 

suspicion of criminal behavior. See State v. Marshall, Clark 

App. No. 2001CA35, 2001-Ohio-7081 (and the cases cited therein.) 

{¶ 14} Here, Defendant was stopped at approximately 2:00 a.m., 

after committing lane violations. When Trooper Howard made 

contact with Defendant he noticed that Defendant’s eyes were glassy 

and bloodshot and that a strong odor of alcohol emanated from 

Defendant’s breath. Further, Defendant’s head led his eyes when 

Trooper Howard spoke with Defendant. Trooper Howard testified 

that this is common in individuals who have consumed alcohol. 

Further, Trooper Howard testified that Defendant’s speech was 

slurred. Defendant argues that the videotape of Defendant’s 

traffic stop taken by the camera in Trooper Howard’s cruiser does 

not support a finding that Defendant’s speech was slurred. 

However, even assuming that Defendant’s speech was not slurred, 

the remaining facts, considered together, are sufficient to give 

rise to a reasonable suspicion of criminal behavior, OMVI, and 

justified continuing Defendant’s detention in order to conduct 

field sobriety tests. State v. Knox, Greene App. No. 2005CA74, 

2006-Ohio-3039. 

{¶ 15} Defendant also argues that Trooper Howard’s failure to 
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execute all of the “PRE-EXIT INTERVIEW TECHNIQUES” outlined in 

Section VI of the National Highway Traffic Safety Administration 

Manual for DWI Detection and Standardized Field Sobriety Testing 

(“NHTSA Manual”) precludes a finding that Trooper Howard had 

sufficient, reasonable suspicion to continue the detention of 

Defendant and order him out of his vehicle. We disagree. 

{¶ 16} “[P]olice officers may require that the occupants of 

a motor vehicle exit the vehicle pursuant to a stop for a traffic 

violation because of the legitimate safety concerns of both the 

officer and the occupants.” State v. Brock, Montgomery App. No. 

23665, 2010-Ohio-5885, at ¶17 (citations omitted). As the United 

States Supreme Court has explained: 

{¶ 17} “The hazard of accidental injury from passing traffic 

to an officer standing on the driver’s side of the vehicle may 

also be appreciable in some situations. Rather, than conversing 

while standing exposed to moving traffic, the officer prudently 

may prefer to ask the driver of the vehicle to step out of the 

car and off onto the shoulder of the road where the inquiry may 

be pursued with greater safety to both.” Pennsylvania v. Mimms 

(1977), 443 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331. 

{¶ 18} Further, under the heading “THE EXIT SEQUENCE” in Section 

VI-6, the NTHSA Manual states, in part: “Your decision to instruct 

the driver to step from the vehicle usually is made after you have 
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developed a suspicion that the driver is impaired.[] Except, 

however, that you may instruct a suspect to exit the vehicle as 

a means of ensuring your own safety. Safety considerations take 

precedence over all other considerations.” 

{¶ 19} Trooper Howard testified that he had Defendant exit his 

vehicle because his car was parked in the right lane of the roadway 

and the safety of Trooper Howard would be compromised if he 

continued to question Defendant from outside the driver’s side 

window. (November 2, 2010 Transcript, p. 86-87.) Once Defendant 

exited the vehicle, Trooper Howard walked him to the front of the 

patrol car. (October 11, 2010 Transcript, p. 25.) Pursuant to 

Mimms and Section VI-6 of the NHTSA Manual, the safety of Officer 

Howard was a sufficient reason, in and of itself, to order Defendant 

out of his vehicle. 

{¶ 20} Defendant concedes in his brief that an officer need 

not follow all of the procedures set forth in the NHTSA Manual. 

 However, Defendant argues that his field sobriety tests should 

be suppressed from evidence because Trooper Howard did not have 

sufficient reasonable suspicion to further detain Defendant to 

administer the field sobriety tests. Defendant does not identify 

any section of the NHTSA Manual which is mandatory that Trooper 

Howard did not follow. Neither does Defendant identify any section 

of the Revised Code that Trooper Howard violated when he decided 
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to have Defendant exit the vehicle. 

{¶ 21} R.C. 4511.19(D)(4) addresses situations in which the 

results of field sobriety tests may be used in criminal proceedings. 

 R.C. 4511.19(D)(4) provides, in pertinent part: 

{¶ 22} “(b) In any criminal prosecution or juvenile court 

proceeding for a violation of division (A) or (B) of this section, 

* * * if a law enforcement officer has administered a field sobriety 

test to the operator of the vehicle involved in the violation and 

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, all of the following apply: 

{¶ 23} “(i) The officer may testify concerning the results of 

the field sobriety test so administered. 

{¶ 24} “(ii) The prosecution may introduce the results of the 

field sobriety test so administered as evidence in any proceedings 

in the criminal prosecution or juvenile court proceeding. 

{¶ 25} “(iii) If testimony is presented or evidence is 

introduced under division (D)(4)(b)(I) or (ii) of this section 

and if the testimony or evidence is admissible under the Rules 
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of Evidence, the court shall admit the testimony or evidence and 

the trier of fact shall give it whatever weight the trier of fact 

considers to be appropriate. 

{¶ 26} “(c) Division (D)(4)(b) of this section does not limit 

or preclude a court, in its determination of whether the arrest 

of a person was supported by probable cause or its determination 

of any other matter in a criminal prosecution or juvenile court 

proceeding of a type described in that division, from considering 

evidence or testimony that is not otherwise disallowed by division 

(D)(4)(b) of this section.” 

{¶ 27} R.C. 4511.19(D)(4)(b) and (c) are “a codification of 

the Ohio Supreme Court’s holding in State v. Schmitt, 101 Ohio 

St.3d 79, 801 N.E.2d 446, 2004-Ohio-37, which held that even if 

the actual test results of nonscientific standard field sobriety 

tests were deemed inadmissible, an officer may nevertheless testify 

as a lay witness, regarding observations made during a defendant’s 

performance of these tests and the court may rely on this testimony 

in making its probable cause determination.” State v. Lothes, 

Portage App. No. 2006-P-0086, 2007-Ohio-4226, ¶47, citing Schmitt, 

at ¶13-16. 

{¶ 28} As the Supreme Court explained in Schmitt, at ¶14: 

{¶ 29} “We see no reason to treat an officer’s testimony 

regarding the defendant’s performance on a nonscientific field 
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sobriety test any differently from his testimony addressing other 

indicia of intoxication, such as slurred speech, bloodshot eyes, 

and odor of alcohol. In all of these cases, the officer is 

testifying about his perceptions of the witness, and such testimony 

helps resolve the issue of whether the defendant was driving while 

intoxicated.” 

{¶ 30} Here, Trooper Howard testified regarding his 

observations of Defendant that led to his decision to further detain 

Defendant to conduct field sobriety tests. This testimony is 

admissible and supports the trial court’s finding that Trooper 

Howard had a reasonable and articulable suspicion of driving under 

the influence to justify his decision to have Defendant exit the 

vehicle and administer field sobriety tests. 

{¶ 31} The assignment of error is overruled. The judgment of 

the trial court will be affirmed. 

FAIN, J., And HALL, J., concur. 

Copies mailed to: 

Betsy A. Deeds, Esq. 

Terry L. Lewis, Esq. 

Hon. Beth W. Root