Opinion

State v. Reynolds

2022 Ohio 3506

Court: Ohio Court of Appeals
Filed: Sep 30, 2022
Status: Published
On the bench: Mayle
Cited by: 2 cases
Authority: More cited than 49.3%

The opinion

[Cite as State v. Reynolds, 2022-Ohio-3506.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

WOOD COUNTY

State of Ohio/City of Bowling Green Court of Appeals No. WD-21-084

Appellee Trial Court No. 21-TRC-00695

Erika Reynolds DECISION AND JUDGMENT

Appellant Decided: September 30, 2022

*****

Hunter Brown, City of Bowling Green Prosecuting Attorney, and

Nicholas P. Wainwright, Assistant Prosecuting Attorney, for appellee.

Michael B. Kelley, for appellant.

*****

MAYLE, J.

{¶ 1} Following a jury trial, defendant-appellant, Erika Reynolds, appeals the

November 16, 2021 judgment of the Bowling Green Municipal Court, convicting her of

operating a vehicle while under the influence of drugs or alcohol. For the following

reasons, we affirm the trial court judgment.

I. Background

{¶ 2} A jury convicted Erika Reynolds of operating a vehicle while under the

influence of drugs or alcohol, a violation of R.C. 4511.19(A)(1)(a). She was sentenced to

93 days in jail, 90 days of which were suspended, a fine of $1,075.00, court costs, and a

one-year license suspension. The state offered the following evidence at trial.

{¶ 3} On February 13, 2021, at approximately 3:30 p.m., Ohio State Highway

Patrol Trooper Nicholas Palmer was patrolling a stretch of I-75 in Wood County when he

received a call from dispatch reporting a reckless driver. Palmer located the vehicle—

Reynolds’s vehicle—and followed it. He observed the vehicle swerve within its own

lane and ride on top of the lane divider, which he conceded are not traffic violations in

this judicial district. He ultimately initiated a stop of the vehicle because it was traveling

75 miles per hour in a 70-mile-per-hour zone. Palmer testified that it is not his usual

practice to stop a vehicle for exceeding the speed limit by only five miles per hour, and,

in fact, he did not cite Reynolds for speeding. Palmer confirmed that varying speeds can

be a sign of impairment, as can following too closely, but he clocked Reynolds’s speed

only once, she was not following too closely, he did not see her drive recklessly, and he

observed no other traffic violations. He also confirmed that Reynolds maneuvered her

vehicle appropriately when he pulled her over.

{¶ 4} Palmer approached the vehicle, requested Reynolds’s driver’s license,

registration, and proof of insurance, and asked general questions so that he could evaluate

whether she was impaired. He noticed that her speech was slurred, her eyes were

bloodshot and glassy, and her movements were lethargic. This indicated to Palmer that

Reynolds could be impaired by drugs, alcohol, prescription medications, or a medical

condition. He decided to extend the stop to further investigate.

{¶ 5} Palmer asked Reynolds if she had had anything to drink. She said no. After

a consensual pat down for weapons, he performed several field sobriety tests. He began

by asking if she had medical conditions or injuries that would prevent her from

performing the tests, and specifically whether she had any medical conditions that would

prevent her from seeing the tip of his pen for the horizontal gaze nystagmus (HGN) test.

She said no, although she explained that she had monocular vision. Palmer administered

the test, and he observed six out of six clues. He performed the vertical gaze nystagmus

test, and nystagmus was present. Palmer next asked Reynolds if she had any physical or

mental ailments that would prevent her from performing the walk-and-turn test.

Reynolds said she had back pain and a knee abscess, but she performed the test. She

swayed while balancing, moved her foot, and became agitated. Palmer then asked her to

do the one-leg-stand test. She indicated that her abscess was on her left leg. She stood

on her right foot and lifted her left foot. Reynolds said that she could not do the test.

{¶ 6} Palmer administered a preliminary breath test, which showed zero alcohol

on Reynolds’s breath, so he eliminated alcohol as a possible reason for impairment. At

that point he suspected that Reynolds’s impairment was caused by a controlled substance

or prescription medication. He performed a modified Romberg test. He asked her to

close her eyes, tilt her head back, put her arms down by her side, estimate the passage of

30 seconds, then bring her head back and tell him to stop. She estimated the passage of

30 seconds in 22 seconds—the normal range would have been 25 to 35 seconds. While

she performed the test, Palmer observed body tremors, another indicator of impairment.

{¶ 7} Based on “the driving behavior,” the reckless operating call, and Reynolds’s

performance on the field sobriety and modified Romberg tests, Palmer decided to place

Reynolds under arrest. He read Reynolds her Miranda rights and performed a search

incident to arrest. At some point during the stop, Reynolds told Palmer that she takes

multiple medications.

{¶ 8} Because Palmer suspected that Reynolds’s medications caused her to

become impaired, he called dispatch to see if a drug recognition expert (“DRE”) was

available. Officer Amber Moomey, of the Bowling Green Police Department, evaluated

Reynolds.

{¶ 9} Moomey testified that she was designated a DRE in 2018, after completing

additional training. She stated that the methods she learned in her DRE training are

generally recognized in her field and are relied upon by other police departments.

Without objection from defense counsel, the court recognized Moomey as an expert.

Moomey authored a report that was admitted into evidence, summarizing her evaluation

of Reynolds.

{¶ 10} Before Moomey began her evaluation, Palmer told her only that it was a

reckless operation case. He said that he had responded to a call of an impaired driver.

Palmer was administering a breath alcohol test when Moomey arrived, so she waited until

he was finished. That test indicated that Reynolds was not impaired by alcohol. Because

the average police officer cannot determine non-alcohol-related impairment, Moomey

forms her own opinion of a person’s impairment based on information she has learned

about what drugs do to the body. She does not take the trooper’s word as to whether a

person is impaired.

{¶ 11} Moomey noted Reynolds’s clothing, including her shoes—she was wearing

tall black boots. When Reynolds walked from the BAC room to the squad room,

Moomey noticed that Reynolds sometimes walked with a limp and was unsteady on her

feet. Before talking with Reynolds, she read her Miranda rights. At that point, she

noticed that Reynolds’s eyes were bloodshot and glassy, she had thick, slurred speech,

she was fidgety during the evaluation, and she was constantly moving.

{¶ 12} In response to questions from Moomey, Reynolds said that she had not

eaten that day and had last eaten the following night at 8:00 p.m. Between noon and 3:35

p.m., Reynolds consumed three Bang energy drinks. The night before, she slept from

1:00 a.m. until noon. Reynolds told Moomey she is not diabetic or epileptic; she has an

abscess on her knee that makes it painful to walk sometimes; she had a lazy eye that was

corrected; and she has monocular vision. She is on 14 different medications, including

Lyrica, Adderall, Xanax, oxycodone, lidocaine patches, Zoloft, Valtrex, valcyclovic,

acyclovic, an inhaler, propranolol, hydroxyzine, Zofran, and Phenergan. Moomey

documented the medications, side effects, and when Reynolds last took them.

{¶ 13} Moomey examined Reynolds’s eyes, then performed both HGN and VGN

tests. Reynolds exhibited six out of six clues on the HGN test and vertical gaze

nystagmus was present on the VGN test. Moomey administered the modified Romberg

test—Reynolds estimated the passage of 30 seconds after only 21 seconds. Moomey

administered the walk-and-turn test—Reynolds fell out of the start position twice, started

crying, attributed her difficulty to her boots, removed her boots, had trouble remembering

the instructions, and lost her balance. Moomey administered the one-leg-stand test for

each leg—Reynolds could not maintain balance and put her foot down several times.

Moomey administered the finger-to-nose test—Reynolds did not follow instructions

properly and she double-tapped once.

{¶ 14} Based on the totality of the circumstances, Moomey determined that

Reynolds was impaired by a CNS depressant. She explained that this is a large category

of medication or drugs that depress one’s central nervous system. She did not believe

that any medical or mental ailment caused Reynolds’s impairment. She “saw the

presence of CNS depressant, so [she] call[ed] it a CNS depressant.” Moomey entered

Reynolds’s medications into www.drugs.com and looked for interactions. She said six of

Reynolds’s medications “had a major drug interaction,” while others had “a moderate

interaction.”

{¶ 15} Moomey described that after the evaluation, she went through each

medication and made herself familiar because “[t]here are so many different medications

out there, that [she’s] not familiar with every single one of them or what they do.” She

testified that oxycodone and Zoloft “counteract with each other and can cause some

pretty severe side effects,” which she described in her report. She then summarized what

she learned about some of the different medications Reynolds is prescribed:

• Xanax: “a depressant and it depresses your immune system and it

helps treat medical conditions”;

• Oxycodone: “a narcotic analgesic, which would be in the same

category as, like, Heroin or Fentanyl”;

• Zoloft: “another depressant in the CNS depressants category”; and

• Zofran: “it’s for nausea, but I believe it’s in the CNS depressant

category.”

{¶ 16} Moomey emphasized that Reynolds was drowsy despite the three energy

drinks she consumed, but she was also fidgety. She believed this was because “there was

still a lot bringing her down.” She said that the combination of a CNS depressant and

narcotic analgesic will lower blood pressure (Reynolds’s blood pressure was 108/72),

body temperature (her temperature was 97.6), and pulse rate (her pulse rate was checked

three times and was recorded as 98, 106, 96). Moomey concluded, “based on everything

she encountered throughout the evaluation,” that Reynolds’s “signs matched up with

CNS depressant.”

{¶ 17} On cross-examination, Moomey testified that from her review of the

recording of the traffic stop, Reynolds did not appear to have any difficulty with her

motor vehicle controls and no difficulty exiting the vehicle, and she did not repeat

herself. Moomey conceded that she is not a doctor or a pharmacist. She testified that a

person can be impaired while driving and not make a traffic violation.

{¶ 18} Defense counsel made Crim.R. 29 motions after the state’s evidence and

again after resting. The court denied those motions and submitted the matter to the jury.

The jury returned a verdict of guilty. Reynolds appealed. She assigns the following

errors for our review:

I. Appellant’s conviction was against the manifest weight of the

evidence and the evidence was insufficient to support a conviction.

II. Appellant received ineffective assistance of counsel due to

counsel’s serious errors which deprived Appellant of a fair trial because

counsel failed to raise significant issues in a motion to suppress although it

had merit, and because the cumulative effect of counsel’s errors resulted in

ineffective assistance of counsel as a whole.

II. Law and Analysis

A. Manifest Weight and Sufficiency of the Evidence

{¶ 19} In her first assignment of error, Reynolds challenges the sufficiency and

manifest weight of the evidence. She argues that the state did not present admissible

evidence that “her ability to operate [her] vehicle” was “noticeably impaired,” thus the

evidence was insufficient to support her conviction. Although not assigned as a separate

error, Reynolds complains that Palmer and the assistant prosecutor repeatedly made

reference to the dispatch call that indicated that Reynolds was driving recklessly, even

though the court had ruled that it could be alluded to only to show that the officer went to

look for her after receiving this call.

{¶ 20} Reynolds further claims that the field sobriety tests were not properly

administered because Palmer failed to ask about medical conditions that could affect

HGN, he held the pen out for seven seconds instead of five, he failed to account for

Reynolds’s back pain, back injury, knee abscess, or lazy eye, and the cold temperature

may have affected her performance. She insists that Moomey’s administration of other

field sobriety tests suffer from similar infirmities, and additional tests Moomey

administered were not properly demonstrated and were unreliable. Reynolds maintains

that Palmer did not know the effects of drugs on people and saw nothing on any pill

bottles to suggest that Reynolds should not have been driving. Finally, Reynolds

contends that Moomey is not a pharmacist and does not know how Reynolds’s

medications may interact.

{¶ 21} The state responds that it was not required to show that Reynolds’s driving

itself was impaired—it is sufficient that the officer observe indicia of impairment after

the lawful stop of the vehicle. It emphasizes that the court permitted it to reference the

reckless-driving call “with an admonishment to the jury that it’s not offered for the truth

of the matter in the statement itself,” but rather to show “that the officer acted in

conformity therewith.” “As such,” the state claims, “the Jury gained very small

information about the call and were told not to consider it,” and it can be presumed that

the jury followed the instruction to disregard inadmissible evidence. Finally, the state

argues that indicators of impairment were observed after the stop and were observed

during administration of the HGN and VGN, walk-and-turn, modified Romberg, and one-

leg-stand tests. It does not specifically address the remainder of Reynolds’s arguments.

1. Sufficiency of the Evidence

{¶ 22} Whether there is sufficient evidence to support a conviction is a question of

law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a

challenge to the sufficiency of evidence, “[t]he relevant inquiry is whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.”

(Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668

10.

(1997). In making that determination, the appellate court will not weigh the evidence or

assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d 208, 212, 378

N.E.2d 1049 (1978). “Rather, we decide whether, if believed, the evidence can sustain

the verdict as a matter of law.” State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-

8448, 84 N.E.3d 993, ¶ 13. Naturally, this requires “a review of the elements of the

charged offense and a review of the state’s evidence.” Id.

{¶ 23} R.C. 4511.19(A)(1)(a) prohibits the operation of a vehicle when a person is

under the influence of alcohol, a drug of abuse, or a combination of both. A “drug of

abuse” is defined in R.C. 4506.01(M) to mean “any controlled substance, dangerous drug

as defined in section 4729.01 of the Revised Code, or over-the-counter medication that,

when taken in quantities exceeding the recommended dosage, can result in impairment of

judgment or reflexes.” “Dangerous drug” is defined by R.C. 4729.01(F) to include

prescription medications. “Controlled substance” is defined by R.C. 4506.01(E) as “(1)

[a]ny substance classified as a controlled substance under the ‘Controlled Substances

Act,’ 80 Stat. 1242 (1970), 21 U.S.C.A. 802(6), as amended; (2) [a]ny substance included

in schedules I through V of 21 C.F.R. part 1308, as amended; (3) [a]ny drug of abuse.”

{¶ 24} To support a conviction of operating a vehicle while under the influence of

a drug of abuse, the state must prove, beyond a reasonable doubt, that the defendant was

“(1) operating a vehicle, and (2) doing so while under the influence of a drug of abuse.”

State v. Hefflinger, 6th Dist. Erie No. E-16-054, 2017-Ohio-7100, ¶ 17. In Hefflinger, we

11.

recognized that under Supreme Court of Ohio case law—State v. Richardson, 150 Ohio

St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993—“the testimony of an experienced police

officer that a defendant appears to be under the influence of a drug of abuse at the time of

arrest, paired with additional evidence that the defendant had ingested a drug of abuse,

constitutes sufficient evidence to support a conviction for operating a vehicle while under

the influence of a drug of abuse.” Id. at ¶ 22.

{¶ 25} A driver is “under the influence” when his or her normal “physical and

mental ability to act and react” are altered because of the consumption of a drug of abuse.

See State v. Filip, 2017-Ohio-5622, 94 N.E.3d 125, ¶ 38 (9th Dist.). “One can be ‘under

the influence of a drug of abuse’ even when taking a prescription medication in the

prescribed amount if it impairs the person’s ability to operate a motor vehicle.” State v.

Smith, 6th Dist. Ottawa No. OT-97-037, 1998 WL 102143, *1 (Feb. 27, 1998).

{¶ 26} Importantly, despite Reynolds’s suggestion to the contrary, “the state does

not have to prove actual impaired driving; instead, it [need] only show impaired driving

ability.” State v. Schlagheck, 6th Dist. Lucas No. L-00-1121, 2001 WL 85158, *8 (Feb.

2, 2001). The state may rely on physiological factors, such as glossy or bloodshot eyes,

slurred speech, and confused appearance, to demonstrate that a person’s physical and

mental ability to drive was impaired. Id.

{¶ 27} Here, it is undisputed that Reynolds was operating a vehicle. As for

whether she was “under the influence of a drug of abuse,” the state presented evidence

12.

that Reynolds exhibited physiological signs of impairment, including glassy, bloodshot

eyes, slurred speech, and lethargic movements. It presented evidence that she exhibited

clues of impairment in two sets of field sobriety tests administered independently by both

Palmer and Moomey. And it presented evidence that Reynolds admitted taking certain

prescribed medications that constitute “drugs of abuse.”1 The state was not required to

show that Reynolds was driving recklessly. The evidence, if believed, was therefore

sufficient to support her conviction.

{¶ 28} As for Reynolds’s claim that field sobriety tests were not properly

administered, that argument is more appropriately considered in addressing her second

assignment of error.

2. Manifest Weight of the Evidence

{¶ 29} When reviewing a claim that a verdict is against the manifest weight of the

evidence, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the jury clearly lost its way

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d

at 387, 678 N.E.2d 541. We do not view the evidence in a light most favorable to the

state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of

We note that while the state repeatedly stated that Reynolds took 14 medications,

Moomey’s report indicates that she took only six of those prescribed medications that

day. She had taken others the night before.

13.

the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas No. L–10–1369, 2012–

Ohio–6068, ¶ 15, citing Thompkins at 388. Reversal on manifest weight grounds is

reserved for “the exceptional case in which the evidence weighs heavily against the

conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

{¶ 30} Although under a manifest-weight standard we consider the credibility of

witnesses, we must nonetheless extend special deference to the jury’s credibility

determinations given that it is the jury who has the benefit of seeing the witnesses testify,

observing their facial expressions and body language, hearing their voice inflections, and

discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.

Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.

{¶ 31} Reynolds maintains that Palmer did not know the effects of drugs on

people and saw nothing on any pill bottles to suggest that Reynolds should not have been

driving. She also contends that Moomey is not a pharmacist and does not know how

Reynolds’s medications may interact. Problematically, Reynolds did not object to the

state’s request to qualify Moomey as a drug recognition expert, nor did she object to the

admissibility of Moomey’s observations and opinions.

{¶ 32} In any event, while it is true that the state must provide evidence of “a

nexus between the ingestion of a substance of abuse and the driver’s impairment”— State

v. Love, 7th Dist. Columbiana No. 21 CO 0009, 2022-Ohio-1454, 188 N.E.3d 622, ¶

14.

15, appeal not allowed, 167 Ohio St.3d 1482, 2022-Ohio-2765—the Ohio Supreme Court

has recognized that “[w]hen the effects of a drug are sufficiently well known * * *[,]

expert testimony linking ingestion of the drug with indicia of impairment is

unnecessary.” Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, at ¶ 19.

In Richardson, the drug at issue was hydrocodone and the court found that the effects of

hydrocodone—a Schedule II controlled substance—are well known, therefore, expert

testimony establishing the nexus was unnecessary. So too are the effects of oxycodone,

also a Schedule II controlled substance, which Reynolds admitted to ingesting. See

https://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf (last accessed

September 12, 2022). See also State v. Wieser, 3d Dist. Allen No. 1-18-15, 2018-Ohio-

3619, ¶ 17 (explaining that for purposes of an OVI charge, the issue of whether a drug is

a controlled substance is a question of law for the court).

{¶ 33} Moomey’s opinions concerning Reynolds’s impairment could be

considered, therefore, despite her lack of expertise in the field of pharmacy. It was up to

the jury to assign weight to her testimony. And given Moomey’s opinions, Palmer’s

observations, and Reynolds’s performance on field sobriety tests—which was recorded

and played for the jury—we cannot say that the jury clearly lost its way in resolving

evidentiary conflicts simply because it chose to believe the evidence presented by the

state. State v. Martin-Paley, 12th Dist. Warren No. CA2020-05-032, 2021-Ohio-1631, ¶

15.

22 (“The jury is free to believe or disbelieve all, or part of, the evidence presented at

trial.).

{¶ 34} Finally, although not assigned as a separate error, Reynolds complains that

Palmer and the assistant prosecutor repeatedly made reference to the dispatch call that

indicated that Reynolds was driving recklessly, even though the court had ruled that it

could be alluded to only to show that the officer went to look for the individual after

receiving this call. It is true that this call was referenced several times and that Palmer

supplied more information about the call than was permitted. But trial counsel registered

timely objections that the trial court sustained, and the jury was instructed that the content

of the dispatch call could not be considered for the truth of the matter. We will generally

presume that the jury followed the trial court’s limiting instructions. See State v.

Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 69; State v. Thomas, 6th

Dist. Lucas No. L-17-1266, 2019-Ohio-1916, ¶ 32.

{¶ 35} Accordingly, we find Reynolds’s first assignment of error not well-taken.

B. Ineffective Assistance of Counsel

{¶ 36} In her second assignment of error, Reynolds argues that trial counsel was

ineffective because he failed to file a motion to suppress evidence on the basis that (1) the

officer lacked reasonable, articulable suspicion to stop her for driving five miles per hour

over the speed limit and to detain her to administer field sobriety tests; (2) the tests were

not performed in substantial compliance with the standards for administering such tests

16.

given that the HGN was held for seven seconds instead of five, Reynolds had numerous

medical problems, and unusual circumstances—including the cold weather—affected the

tests; and (3) Palmer could not remember if he Mirandized Reynolds before she admitted

that she was prescribed and used 14 medications.

{¶ 37} The state responds that an officer may stop a driver for a de minimis traffic

violation, and Reynolds’s glassy bloodshot eyes, slurred speech, and lethargy provided

the officer with reasonable, articulable suspicion to detain her for the purpose of

administering field sobriety tests. It insists that the field sobriety tests were performed in

substantial compliance with NHTSA standards. Finally, the state responds that even if

Reynolds made admissions to Palmer before she was Mirandized, she made the same

admissions to Mooney after she was Mirandized.

{¶ 38} Properly licensed Ohio lawyers are presumed competent. State v. Banks,

9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. In order to prevail on a claim

of ineffective assistance of counsel, an appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial court cannot be

relied on as having produced a just result. State v. Shuttlesworth, 104 Ohio App.3d 281,

287, 661 N.E.2d 817 (7th Dist.1995). To establish ineffective assistance of counsel, an

appellant must show “(1) deficient performance of counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that, but for counsel’s errors, the proceeding’s result would have

17.

been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶

204, citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). “A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).

1. The Traffic Stop and the Detention that Followed

{¶ 39} Reynolds argues that trial counsel was ineffective for failing to file a

motion to suppress evidence on the basis that the officer lacked reasonable, articulable

suspicion to stop her for driving five-miles-per-hour over the speed limit and to detain her

to administer field sobriety tests.

{¶ 40} Where a police officer has a reasonable and articulable suspicion of

criminal activity, he or she may make a brief, investigative stop. State v. Melchor, 114

Ohio App.3d 534, 538, 683 N.E.2d 442 (6th Dist.1996), citing Terry v. Ohio, 392 U.S. 1,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This court has recognized that “a ‘de minimis

violation of traffic laws’ is generally sufficient to justify a stop.” State v. Clark, 2018-

Ohio-2029, 101 N.E.3d 758, ¶ 23 (6th Dist.), citing State v. Dukes, 4th Dist. Scioto No.

16CA3745, 2017-Ohio-7204, ¶ 16.

{¶ 41} In Melchor, we affirmed the validity of a stop even though the trooper

testified that the defendant had exceeded the speed limit by only five miles per hour. Id.

at 535. We found that the trooper had reasonable, articulable suspicion that the defendant

was violating R.C. 4511.21 by driving over the speed limit. Id. at 538.

18.

{¶ 42} This case presents the same scenario. It is undisputed that Reynolds was

traveling five miles per hour over the speed limit. While this was a fairly de minimis

traffic violation—Palmer testified that he routinely exceeds the speed limit by five miles

per hour and would not normally stop a driver for driving five miles per hour over the

speed limit—it nevertheless provided Palmer with reasonable, articulable suspicion that

Reynolds had violated R.C. 4511.21. This is true regardless of the fact that he did not

ultimately cite her for this violation. State v. Arms, 6th Dist. Lucas No. L-97-1282, 1998

WL 114356, *3 (Mar. 6, 1998) (“Reasonable suspicion, based on specific and articulable

facts, to conduct an investigatory stop after a police officer observes a traffic violation is

not negated by the fact an officer does not issue a ticket after investigating.”).

{¶ 43} Turning to Palmer’s decision to perform field sobriety tests, Ohio courts

recognize that these tests invade one’s liberty interests, therefore, “‘they must be

separately justifiable by specific, articulable facts which show a reasonable basis for the

request.’” State v. Wright, 2015-Ohio-2600, 38 N.E.3d 485, ¶ 52 (11th Dist.), quoting

State v. Evans, 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998). In Wright, the

Court found that the officer had a reasonable basis for requesting the defendant to submit

to field sobriety tests where he observed a marked lanes violation, there had been

citizen reports that defendant was driving erratically, defendant’s pupils were highly

constricted despite the dark conditions, his responses to the officer’s requests were

extremely slow, and he acted lethargically. Id. at ¶ 54-57. See also State v. Glime, 9th

19.

Dist. Lorain No. 01CA007856, 2001 WL 1339478 (Oct. 31, 2001) (finding probable

cause to arrest for OVI even without results of field sobriety tests where officer observed

defendant drive vehicle down center of road, he did not stop immediately upon the officer

activating his lights and sirens, and he had glassy, bloodshot eyes and slow,

slurred speech); Smith, 6th Dist. Ottawa No. OT-97-037, 1998 WL 102143, at *1 (trooper

asked defendant to submit to field sobriety tests after observing that defendant’s gait was

unsteady, his balance was poor, his speech was slurred, and his eyes were red with

constricted pupils).

{¶ 44} Here, Palmer testified that Reynolds’s eyes were bloodshot and glassy, her

speech was slurred, and her movements were lethargic. These observations provided

reasonable, articulable suspicion for Palmer to ask Reynolds to submit to field sobriety

tests. Accordingly, we conclude that there is no reasonable probability that the outcome

of the proceedings would have been different if trial counsel had filed a motion to

suppress evidence on the basis that the initial stop and the detention that followed were

not justified.

2. The Administration of the Field Sobriety Tests

{¶ 45} Reynolds next argues that trial counsel was ineffective for failing to file a

motion to suppress evidence on the basis that the field sobriety tests were not performed

in substantial compliance with the standards for administering such tests given that the

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HGN was held for seven seconds instead of five, Reynolds had numerous medical

problems, and the cold weather affected the tests.

{¶ 46} Ohio courts recognize that the time set forth in the NHTSA manual for

completing the various elements of the HGN test are approximate. (Citations omitted.)

State v. Scott, 6th Dist. Lucas No. L-21-1128, 2022-Ohio-2071, ¶ 37. Those times are set

forth as “minimum” times, meaning that the HGN test may be compliant with NHTSA

standards even when performed more slowly than the time specified in the manual. See

State v. Embry, 12th Dist. Warren No. CA2003-11-110, 2004-Ohio-6324, ¶ 38 (noting

that stimulus must be held at maximum deviation for a minimum of four seconds); State

v. Clark, 12th Dist. Brown No. CA2009-10-039, 2010-Ohio-4567, ¶ 23 (“[T]he NHTSA

guidelines list certain approximate and minimum time requirements for the various

portions of the test.”). Moreover, the standard for admissibility is substantial, not strict,

compliance. State v. Emmons, 5th Dist. Ashland No. 14-COA-016, 2014-Ohio-5842, ¶

21. We find that Palmer substantially complied with the minimum time requirements for

performing the HGN tests, and Reynolds has not alleged any similar deficiency in

Moomey’s administration of the tests.

{¶ 47} As for Reynolds’s claim that the cold weather and numerous medical

problems—including left leg injury and pain, back injury and pain, lazy eye, and

limping—greatly affected her performance on the field sobriety tests, Reynolds is not

specific as to how her performance was affected. See State v. Hall, 2d Dist. Clark No.

21.

05CA0006, 2005-Ohio-6672, ¶ 25 (explaining that officers’ awareness of defendant’s

alleged physical defect “permitted Defendant to question the judgments the officer made

concerning Defendant’s performance of those tests in relation to the probable cause to

arrest issue,” but noting the absence of evidence on this point).

{¶ 48} In any event, Palmer testified that he told Reynolds she did not have to

perform the walk-and-turn test because of her physical ailments, but she said she wanted

to. Moomey similarly asked Reynolds if she wanted to continue with tests despite her

claimed medical conditions and she said yes. See State v. Hess, 2d Dist. Champaign No.

2021-CA-11, 2021-Ohio-3755, ¶ 35 (observing that despite informing officer of “balance

issues,” defendant replied affirmatively when asked if he could complete the test as

instructed). Palmer testified that Reynolds used her right leg to stand on during the one-

leg stand test. Moomey had Reynolds perform both ways—balancing on her right leg,

then on her left—and Reynolds lost balance both ways. And Palmer testified that despite

the cold, “a normal person should have been able to conduct the test”; weather was not a

factor in Moomey’s administration of the tests Under these circumstances, we find that

Reynolds has failed to demonstrate a reasonable probability that the outcome of the

proceedings would have been different if counsel had moved to suppress the results of the

field sobriety tests.

3. The Statements

22.

{¶ 49} Finally, Reynolds argues that trial counsel was ineffective for failing to file

a motion to suppress evidence on the basis that the officer could not remember if he

Mirandized Reynolds before she admitted that she was prescribed and used 14

medications.

{¶ 50} In Miranda v. Arizona,, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), “the United States Supreme Court established procedural safeguards for securing

the privilege against self-incrimination guaranteed by the Fifth Amendment to the United

States Constitution.” Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d

810, ¶ 8. “What are now commonly known as Miranda warnings are intended to protect

a suspect from the coercive pressure present during a custodial interrogation.” Id. at ¶ 9.

“A custodial interrogation is ‘questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of action in any

significant way.’” Id., quoting Miranda at 444. “If a suspect provides responses while in

custody without having first been informed of his or her Miranda rights, the responses

may not be admitted at trial as evidence of guilt.” Id., citing Miranda at 479.

{¶ 51} Roadside questioning of a motorist detained pursuant to a routine traffic

stop does not usually constitute a “custodial interrogation” for purposes of Miranda.

State v. Ferrell, 2017-Ohio-9341, 91 N.E.3d 766, ¶ 28 (11th Dist.), citing Berkemer v.

McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Palmer was,

23.

therefore, not required to Mirandize Reynolds before asking her about her medications

during roadside questioning.

{¶ 52} Additionally, although the audio is difficult to hear at times, it is clear that

after Palmer arrested Reynolds and read her her rights, Reynolds volunteered information

about her prescribed medications. Moreover, once Reynolds got to the station, before she

was evaluated by Moomey, Moomey again read Reynolds her rights. After waiving

those rights, Reynolds again provided information concerning what medications she was

prescribed and when she last took each of those medications. As such, it would have

made no difference in the outcome of the proceedings if counsel would have moved to

suppress any pre-Miranda statements because Reynolds provided the same information

again—twice—after being Mirandized.

{¶ 53} Accordingly, we find Reynolds’s second assignment of error not well-

taken.

III. Conclusion

{¶ 54} Reynolds’s conviction was not against the weight or sufficiency of the

evidence. The state presented evidence that Reynolds was operating a vehicle while

under the influence of certain drugs of abuse, and we cannot say here that the jury clearly

lost its way in resolving evidentiary conflicts in favor of the state. We, therefore, find her

first assignment of error not well-taken.

24.

{¶ 55} Reynolds has failed to demonstrate that there was a reasonable probability

that the outcome of the proceedings would have been different had trial counsel moved to

suppress evidence of the stop, the further detention to administer field sobriety tests, the

results of the field sobriety tests, or statements she made concerning her medications.

We, therefore, find her second assignment of error not well-taken.

{¶ 56} We affirm the November 16, 2021 judgment of the Bowling Green

Municipal Court. Reynolds is ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.