State v. Starkey, 2012 Ohio 6219

Starkey, driving a dump truck, collided with a turning vehicle in Portage County on July 5, 2011, killing both occupants.
On-scene, Starkey provided a urine sample that tested positive for marijuana metabolite; he was charged with OVI under R.C. 4511.19(A)(1)(j)(viii)(II).
Starkey filed a motion to suppress the chemical test results on April 13, 2012; the court did not receive the motion until April 16, 2012.
At trial, Starkey orally moved for suppression; the court allowed consideration and offered a continuance, but the state proceeded with a suppression hearing the same day.
During the suppression hearing, Officer Whitacre testified there were no reasonable grounds to believe Starkey had a detectable amount of alcohol or drugs; CHP policy dictated urine/blood sampling in fatal crashes.
The trial court granted the suppression motion, suppressed the chemical test results, and dismissed the OVI charge; the State appealed, arguing the court abused its discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion in allowing an untimely suppression motion	State contends waiver relief was properly granted and no abuse occurred	Starkey contends the untimely motion should have been barred absent good cause	First assignment of error is without merit
Whether the exclusion of urine-test results was proper under the Fourth Amendment	State argues statutory violations do not trigger exclusionary remedy	Starkey argues statutory violations may invoke exclusion if they offend constitutional protections	Second assignment has merit; remanded to assess voluntariness of consent and application of the exclusionary rule

State v. Weideman, 94 Ohio St.3d 501 (2002) (statutory violations may rise to constitutional violations when applicable)
State v. Jones, 88 Ohio St.3d 430 (2000) (no per se rule; totality of circumstances governs constitutional violation via statute)
State v. Lett, 11th Dist. No. 2008-T-0116, 2009-Ohio-2796 (2009) (consent must be shown by clear and convincing evidence)
Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602 (1989) (urine testing as a search implicating privacy expectations)
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntary consent burden on state to prove consent freely given)
Jones v. United States, 357 U.S. 493 (1958) (general warrantless search rules; limits context-specific exceptions)
Mapp v. Ohio, 367 U.S. 643 (1961) (exclusionary rule applies to unconstitutional searches and seizures)
State v. Burnside, 100 Ohio St.3d 152 (2003) (framework for reviewing suppression rulings on appeal)