State v. Persinger
60 N.E.3d 831
Ohio Ct. App.2016Background
- On December 8, 2013, Persinger failed to stop at a stop sign, collided with another vehicle, killing two passengers and injuring a third; Persinger was injured and taken to Grant Medical Center.
- Hospital staff performed a blood-alcohol test as part of medical treatment; Persinger denied police request for a blood draw; the police later obtained the hospital test results.
- Persinger was indicted on multiple counts including aggravated vehicular homicide and aggravated vehicular assault (charges premised on violations of R.C. 4511.19); he pled no contest to two counts of aggravated vehicular homicide and one count of aggravated vehicular assault and was sentenced to nine years.
- Persinger moved to suppress the hospital blood-test results on multiple grounds (including failure to comply with Ohio Department of Health regulations, chain-of-custody defects, hearsay, and judicial assistance at the suppression hearing); the trial court granted suppression of hospital statements but admitted blood-test results subject to expert foundation.
- On appeal Persinger argued (1) the trial court erred in denying suppression of the blood-test results, and (2) his no-contest pleas were not supported by sufficient evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether State had to prove substantial compliance with ODH alcohol-testing regulations for a hospital-drawn/tested blood sample used to prove an R.C. 4511.19(A)(1)(a) "under the influence" violation | State: After R.C. 4511.19(D)(1)(a) amendment, blood tests withdrawn and analyzed at a health-care provider need not meet ODH substantial-compliance requirements to be admitted in prosecutions under R.C. 4511.19(A)(1)(a) | Persinger: Mayl and Hassler require substantial compliance with ODH regs even for hospital-conducted tests used to prove an "under the influence" violation | Held: Court adopts Davenport reasoning — the 4511.19(D)(1)(a) amendment obviates automatic application of ODH substantial-compliance proof for hospital-drawn/analyzed tests in prosecutions under 4511.19(A)(1)(a); no error in admitting test subject to expert foundation |
| Chain of custody / use of hearsay at suppression hearing | State: hearsay is permissible at suppression hearings to establish compliance and chain of custody | Persinger: trial court erred by relying on hearsay and failed to establish required chain of custody per Ohio Adm.Code 3701-53-05(E) | Held: Court rejects Persinger — Edwards permits hearsay at suppression hearings; and because 4511.19(D)(1)(a) governs, the ODH chain-of-custody rule is not a prerequisite here |
| Whether the trial court improperly aided the State in establishing foundation at the suppression hearing | Persinger: trial court’s questioning of hospital lab witness amounted to improper assistance and bias | State: court may question witnesses to develop issues fairly; no abuse shown | Held: No abuse of discretion; trial judge’s questioning was permissible to ascertain truth and not biased |
| Sufficiency of evidence supporting no-contest pleas absent blood-test suppression | Persinger: if blood test suppressed, insufficient evidence; convictions dependent on dismissed 4511.19 counts | State: convictions for vehicular homicide/assault under R.C. 2903.06/2903.08 may be based on evidence of violation of 4511.19(A)(1)(a) even if separate misdemeanor counts were dismissed | Held: No error — suppression denial stands and convictions could be supported by non-per-se "under the influence" evidence; dismissal of separate 4511.19 counts did not negate admissible evidence of that violation |
Key Cases Cited
- State v. Burnside, 100 Ohio St.3d 152 (2003) (standard of review for suppression: factual findings entitled to deference; application of law reviewed de novo)
- State v. Mayl, 106 Ohio St.3d 207 (2005) (held that hospital-administered blood-alcohol tests must substantially comply with ODH regs before admissibility in prosecutions depending on R.C. 4511.19 violations)
- State v. Edwards, 107 Ohio St.3d 169 (2005) (judicial officers may rely on hearsay and other evidence at suppression hearings concerning compliance with Director of Health methods)
- State v. Hassler, 115 Ohio St.3d 322 (2007) (reaffirmed substantial-compliance principle regarding timing and administrative requirements for blood tests used to prove "under the influence" offenses)