State v. Scott, L-21-1128

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMAYLE, J.
Citation2022 Ohio 2071
PartiesState of Ohio/City of Sylvania Appellee v. Brian K. Scott Appellant
Decision Date17 June 2022
Docket NumberL-21-1128


State of Ohio/City of Sylvania Appellee

Brian K. Scott Appellant

No. L-21-1128

Court of Appeals of Ohio, Sixth District, Lucas

June 17, 2022

Trial Court No. TRC2000745A

Daniel C. Arnold, City of Sylvania Prosecuting Attorney, for appellee.

Martin E. Mohler, for appellant.



{¶ 1} Defendant-appellant, Brian K. Scott, appeals the June 10, 2021 judgment of the Sylvania Municipal Court, convicting him of operating a motor vehicle under the influence of alcohol. For the following reasons, we affirm the trial court judgment.


I. Background

{¶ 2} On July 6, 2019, Sergeant Jason Metzger was driving westbound on Bancroft Street near Centennial when he observed Brian Scott driving his truck on eastbound Bancroft Street without wearing a safety belt. He made a u-turn, followed Scott, and noticed the truck weave within the lane. When Scott reached the intersection of Bancroft Street and King Road to stop for a red light, Metzger saw that he failed to stop his vehicle before the stop bar-the back tires of the truck were on the stop bar and the front of his vehicle protruded into the crosswalk. Metzger initiated a stop of Scott's vehicle for his failure to stop at the stop bar.

{¶ 3} When Metzger approached Scott's vehicle, he smelled a strong odor of alcohol and noticed that Scott's speech was slurred. He asked Scott to step out of the vehicle to perform field sobriety tests. Scott's walk was staggered. Metzger asked him if he had any physical ailments. Scott told him that he has problems with his left side due to a car crash 11 years earlier. He also said that he wears glasses but did not have them with him.

{¶ 4} Metzger administered field sobriety tests, including the horizontal gaze nystagmus ("HGN") test, the walk-and-turn test, and the one-leg stand. In performing the HGN test, Metzger noticed-in both of Scott's eyes-distinct nystagmus at maximum deviation, lack of smooth pursuit, and onset of nystagmus before 45 degrees. This constituted six out of six clues of impairment. With the walk-and-turn test, Scott stopped


to steady himself and stepped off the line while walking-two out of eight clues of impairment. And on the one-leg stand, Scott swayed while balancing, raised his arms six inches for balance, and put his foot down.

{¶ 5} Based on Scott's performance on the field sobriety tests, Metzger felt that Scott was impaired and made the decision to arrest him for OVI, a violation of R.C. 4511.19(A)(1)(A) and (A)(2). He also ticketed Scott for failing to wear a seatbelt, a violation of R.C. 4513.263(B)(1), and failing to stop at the stop bar, a violation of R.C. 4511.13(C).

{¶ 6} Scott moved to suppress evidence of the field sobriety tests, the observations and opinions of law enforcement officers who stopped, arrested, or tested him, statements made by Scott, and any statements to the effect that Scott refused to take a breath test. He claimed that Metzger lacked reasonable articulable suspicion to justify the traffic stop because (1) a vehicle cannot be stopped solely for a seatbelt violation; (2) weaving within one's own lane does not constitute a marked lanes violation; and (3) there is no requirement that a driver bring his or vehicle to a stop before a stop bar.

{¶ 7} Scott also argued that Metzger lacked probable cause to detain and arrest him. Although he conceded that some of Metzger's observations may have been sufficient to merit field sobriety tests, he claimed they did not provide probable cause for an arrest. He argued that Metzger did not perform field sobriety tests in substantial compliance with NHTSA standards because (1) in performing the HGN test, when


checking for smooth pursuit, Metzger took one second-not two seconds-to move his finger from the center to the side; (2) in performing the HGN test, when checking for distinct nystagmus at maximum deviation, he held his finger at maximum deviation for three seconds instead of four; and (3) in performing the HGN test, when checking for onset of nystagmus before 45 degrees, he moved his finger too quickly, reaching the 45-degree angle in approximately three seconds instead of four.

{¶ 8} Scott claimed also that his leg injury from 11 years earlier impaired his ability to perform the walk-and-turn and one-leg-stand tests. He argued that Metzger was not qualified to testify to the procedures and results of the field sobriety tests because he is not trained or certified in the testing standards in effect at the time the tests were administered. Scott argued that evidence obtained as the result of the field sobriety tests must be suppressed.

{¶ 9} Finally, Scott argued that any statements he made before being read his Miranda rights must be suppressed "to the extent they were made under custodial interrogation" because they were obtained in violation of his Fifth-Amendment rights.

{¶ 10} In a judgment filed on February 3, 2021, the magistrate granted Scott's motion to suppress the results of the one-leg-stand test, but denied his motion in all other respects. She found that Metzger possessed reasonable, articulable suspicion of a stop-bar violation because Ohio courts, including the Third and Fourth Districts, have determined that a driver is required to come to a complete stop before the vehicle comes


into contact with the stop-line. She found that Metzger had reasonable, articulable suspicion to perform field sobriety tests based on Scott's slurred speech, his stagger, and the strong odor of alcohol emanating from his person. She found that Metzger performed the HGN tests in substantial compliance with NHTSA requirements. And she found that Scott's left leg injury did not impair his ability to perform the walk-and-turn test because it did not involve standing on one leg. The magistrate concluded, however, that Metzger failed to explain how he had taken into consideration Scott's leg injury in performing the one-leg-stand test, thus she suppressed the results of that test. Finally, the magistrate found that Scott had not been subjected to a custodial interrogation for purposes of Miranda, therefore, his pre-Miranda statements need not be suppressed.

{¶ 11} The magistrate determined that Metzger had probable cause to arrest Scott based on his weaving within the lane of travel, Scott's slurred speech, staggered gait, and strong odor of alcohol emanating from his person, the six clues observed during the HGN tests and the two clues observed during the walk-and-turn test. Additionally, the magistrate noted that she had watched the DVD of the encounter and saw that Scott lost his balance more than once during the walk-and-turn test and, while not mentioned by Metzger, she noticed that Scott's eyes were glassy. Based on the totality of the circumstances, she concluded that Metzger had probable cause to arrest Scott for an OVI offense.


{¶ 12} Scott filed objections to the magistrate's decision, but because he failed to do so within 14 days of the decision, the trial court overruled his objections as untimely and affirmed the magistrate's decision. Following the denial of his motion to suppress, Scott entered a plea of no contest to the OVI. The court found him guilty and sentenced him to 180 days in jail with 169 days suspended, two years' probation, a 24-month license suspension, a 90-day vehicle immobilization, restricted plates, an interlock system, a fine of $525.00, and court costs.

{¶ 13} Scott appealed. He assigns the following errors for our review:

Assignment of Error No. 1: The trial court erred in finding there was reasonable, articulable suspicion justifying the traffic stop of Appellant's vehicle[.]
Assignment of Error No. 2: The trial court erred in finding Sergeant Metzger administered certain field sobriety tests upon Appellant in substantial compliance with applicable NHTSA standards[.]

II. Law and Analysis

{¶ 14} Scott's assignments of error challenge the trial court's denial of his motion to suppress. He argues that (1) the officer lacked justification for the traffic stop, and (2) the officer failed to properly administer field sobriety tests. We address each of his challenges below, but before doing so, we must consider the appropriate standard of review to be applied here.


A. Standard of Review

{¶ 15} Both parties misstate the standard of review. Scott claims we must uphold the trial court's factual conclusions if they are supported by competent, credible evidence, then review de novo the application of the law to the facts. The city claims that we review de novo both the trial court's conclusion that Metzger had reasonable, articulable suspicion for initiating the traffic stop and its conclusion that the officer substantially complied with NHTSA procedures in administering field sobriety tests. We find, however, that a plain-error standard-of-review applies here because Scott failed to timely file objections to the magistrate's decision.

{¶ 16} "Except for a claim of plain error, a party shall not assign on appeal the court's adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion as required by Crim.R. 19(D)(3)(b)." Crim.R. 19(D)(3)(b)(iv). Under Crim.R. 19(D)(3)(b), "[a] party may file written objections to a magistrate's decision within fourteen days of the filing of the decision." "A party's failure to object in accordance with Crim.R. 19 results in a forfeiture." State v. Bardwell-Patino, 9th Dist. Medina No. 20CA0043-M, 2021-Ohio-2048, ¶ 31, citing Crim.R. 19(D)(3)(b)(iv).

{¶ 17} Here, Scott failed to file objections to the magistrate's decision within 14 days of the decision. The magistrate's decision was filed February 3, 2021;[1] Scott filed


his objections on March 19, 2021.[2] To excuse his untimeliness, Scott claimed that he did not receive the decision until February 11, 2021, "shortly...

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