811 N.E.2d 156 | Ohio Ct. App. | 2004
{¶ 1} After a car accident, defendant-appellee Sharon D. Brand was cited for driving under the influence,1 failure to stop after an accident,2 and failure to control her vehicle.3 Brand moved to suppress certain evidence, and the trial court granted part of her motion, suppressing the results of Brand's blood test, the results of a horizontal gaze nystagmus ("HGN") test, and statements made by her to police prior to her arrest. The state now appeals, and we affirm in part and reverse in part.
{¶ 3} Officer Stevens testified that he noticed a strong odor of alcohol about Brand and that she was dazed and unresponsive. Brand was taken by ambulance to a hospital. When Stevens arrived at the hospital, he saw that Brand was on a backboard and in a neck brace. Stevens observed that Officer Charles Beebe was talking with Brand.
{¶ 4} According to Stevens, Brand was moody and irritated, and did not want to answer questions. But Stevens acknowledged that he did not closely observe the interactions between Officer Beebe and Brand, and could not recall any specific statements Brand had made. Stevens testified that, in his opinion, Brand was under the influence of alcohol or drugs. He also testified that Brand complained of pain while Officer Beebe talked to her. Stevens stated that Officer Beebe read Brand herMiranda rights and arrested her. *454
{¶ 5} Officer Beebe testified that he saw Brand for the first time when she was in the hospital, and that he noticed that she smelled of alcohol. Beebe asked Brand whether she was involved in a crash, and she said that she did not know what had happened. Beebe observed that Brand's speech was slurred and that her eyes were watery and bloodshot. Beebe testified that he asked Brand where she had been coming from prior to the crash, and that she stated that she had been out celebrating and "drank some wine." According to Beebe, Brand was at times combative, but at other times cooperative.
{¶ 6} Officer Beebe administered the HGN test on Brand and found six clues based on her performance. He testified that Brand said that she was uncomfortable and in pain during the questioning and HGN test, and that her face was bruised. Beebe testified that he concluded that Brand was intoxicated. He read Brand her rights, read her the implied-consent form, asked for a sample of her blood, which Brand refused, and gave her an arrest citation. Hospital personnel later removed a sample of Brand's blood, more than two hours after the accident.
{¶ 7} In October 2002, the trial court dismissed the charges against Brand for lack of prosecution. In February 2003, Brand was again cited for the same charges. Brand filed a motion to suppress, claiming that the state had committed numerous statutory and constitutional violations. The trial court ruled in Brand's favor on three specific claims, holding that the results of Brand's blood test, the result of the HGN test performed on her, and any statements she had made to the police prior to being read her Miranda rights were inadmissible.
{¶ 8} Appellate review of a motion to suppress presents a mixed question of law and fact.4 When considering a motion to suppress, the trial court assumes the role of trier of fact.5 An appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence, but it then must independently determine, without deference to the trial court, whether the facts satisfy the applicable legal standard.6
{¶ 10} The trial court found that the state had offered "no testimony to support that it [the blood] was stored according to the Department of Health regulations." The court stated, "The standard is not strict compliance or substantial compliance. The Court will sustain the motion to not admit. The blood test is inadmissible at trial."
{¶ 11} In any criminal prosecution under R.C.
{¶ 12} In Newark v. Lucas,9 the Ohio Supreme Court created a distinction between offenses under R.C.
{¶ 13} But in an R.C.
{¶ 14} The Newark court then decided that, in a subsection (A)(1) prosecution, because the bodily substance test results are not dispositive of guilt or innocence, test results drawn more than two hours after the time of the alleged violation should not be treated in an exclusionary manner.14 That is, the Ohio Supreme Court created a limited exception that allows into evidence bodily-substance test results taken beyond the two-hour limit, as long as the state introduces the test results along with expert testimony. Such expert testimony "would be necessary to relate the test results to the defendant and to the time of the alleged violation, as well as to relate the numerical figure representing a percentage of alcohol by weight in the bodily substance, as shown by the results of the chemical test, to the common understanding of what it is to be under the influence of alcohol."15
{¶ 15} We think Newark created only a limited exception because of footnote 7, in which the court stated, "It also must be established by the prosecution that the test was properly administered and analyzed in accordance with the remainder of R.C.
{¶ 16} A number of Ohio appellate courts have seized upon the distinction made in Newark between subsection (A)(1) and subsections (A)(2) through (9) and have interpreted the decision as creating more than just a limited exception. Said one court, "The Supreme Court of Ohio has held that in a criminal prosecution for driving under the influence of alcohol, in violation of R.C.
{¶ 17} We disagree with these interpretations of Newark, based upon footnote 7 in the Newark decision. Though the Supreme Court may not have realized the ramifications of the footnote, we cannot interpret it to mean anything but that, in a subsection (A)(1) prosecution, the state must still comply with all requirements under R.C.
{¶ 18} Under State v. French, a defendant charged under R.C.
{¶ 19} If this were not the rule, and all challenges in a subsection (A)(1) prosecution were addressed at trial, the state might have to prove compliance twice. For example, suppose the state prosecuted a defendant under both R.C.
{¶ 20} The various approaches taken by appellate courts on the admissibility of evidence in an R.C.
{¶ 21} We note that the Ohio Supreme Court has recently agreed to hear the appeal of State v. Mayl.22 We certainly hope that the Supreme Court will resolve and bring some clarity to these issues, not only the issue of whether all R.C.
{¶ 22} Turning to the facts of our case, Brand moved to suppress her blood test results, claiming that the blood test was not conducted in accordance with Ohio Department of Health regulations, and that the test was not done within two hours of the accident. The trial court determined that it was the state's burden to prove compliance with all requirements other than the two-hour rule, and that the state had to meet its burden at the motion to suppress. Because the state offered no evidence of compliance, the trial court granted the motion to suppress Brand's blood test results.
{¶ 23} Were it not for an exception specific to this case, discussed in the next section, we would agree with the trial court's decision to suppress the blood test results. At the suppression hearing, the state offered no evidence of compliance with R.C.
{¶ 24} Therefore, while in general, the trial court would have been correct in its determination that the state bore the burden to prove compliance with all R.C.
{¶ 26} At the hospital, Officer Beebe asked Brand to give a blood sample, and she refused. Hospital personnel later took a sample of Brand's blood, presumably for medical purposes. Though it is not clear from the record, we assume that the state then obtained the blood-alcohol level of Brand's blood through R.C.
{¶ 27} Therefore, because Brand did not submit to a blood test at the request of a law enforcement officer, the results of her blood test were not subject to the regulations of R.C.
{¶ 28} We note that the Third Appellate District has analyzed this issue and has come to the opposite conclusion. In State v. Meyers,25 the Third Appellate District decided that the Ohio Supreme Court, inState v. Ripple,26 had indicated that the promulgation of standards by the Director of Health and compliance with those standards were mandatory in order to admit any evidence of drug or alcohol testing conducted to establish intoxication in DUI prosecutions. *460
{¶ 29} But, in our view, the reliance on Ripple was misplaced. InRipple, the Ohio Supreme Court held that because the General Assembly had not promulgated regulations concerning drug testing, "a chemical analysis purporting to indicate the presence of drugs in an accused is inadmissible in a prosecution brought pursuant to R.C.
{¶ 30} Ripple concerned only the lack of standards for drug-testing methods. We do not believe that Ripple stands for the proposition that the standards for alcohol-testing methods in R.C.
{¶ 31} Therefore, we hold that because Brand's blood sample was not taken at the request of a law enforcement officer, the state did not have the burden to prove substantial compliance with the testing procedures of R.C.
{¶ 33} To trigger the need for Miranda warnings, a defendant must be subject to a custodial interrogation.30 The determination whether a custodial interrogation has occurred requires an inquiry into how a reasonable person in the suspect's position would have understood the situation.31 "The ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of *461 the degree associated with a formal arrest."32 Determining what constitutes "custody" for Miranda purposes depends upon the facts of each case.33
{¶ 34} Roadside questioning of a motorist by police, either for a routine traffic stop or because of an accident, is typically not considered custodial.34 Interrogation conducted inside a police vehicle is usually custodial interrogation.35 But police questioning of a motorist in a hospital is a situation somewhere between questioning at the accident scene and questioning in a police vehicle.
{¶ 35} We note that, in most cases, the police officer, probably in an abundance of caution, reads the motorist his or her Miranda rights before the questioning at the hospital. That is probably what should be done. But that does not necessarily mean that to do so is mandatory.
{¶ 36} In this case, when Officer Stevens arrived at the hospital, Brand was in a neck brace and lying on a backboard. Stevens testified that she was irritated and did not want to answer questions. Officer Beebe also testified that Brand was in a neck brace and lying on a backboard at the hospital. Both officers testified that Brand complained of pain during the questioning. Beebe testified that Brand "was injured and was unable to get off the bed." He asked her to perform only the HGN test, but none of the other field sobriety tests, because she had to "stay laying [sic] on the cot."
{¶ 37} During questioning, Brand admitted that she "drank some wine." Based on his observations, Beebe concluded that Brand was intoxicated, informed her of her Miranda rights, and placed her under arrest. Because of her medical condition, arresting Brand meant merely issuing her an arrest citation. Brand made no further statements and requested an attorney.
{¶ 38} We conclude that, for practical purposes, Brand's freedom of movement was restrained as if she had already been placed under formal arrest. Brand was confined on a cot, unable to get up or even to move her head around. She expressed an unwillingness to answer questions and complained of pain throughout. We conclude that a reasonable person in Brand's position would have not felt free to leave or free not to answer the police questions. *462
{¶ 39} Brand wants us also to consider her belief that the police had already decided to arrest her for DUI before Officer Beebe even arrived at the hospital. She argues that Officer Beebe was not at the hospital to investigate the accident but was there to arrest her. But we note that while Beebe may have suspected that Brand was the cause of the accident and that she was driving under the influence, the fact that an investigation focuses on a particular suspect does not trigger the need for Miranda warnings.36 More important to our determination that Beebe should have read Brand her Miranda rights was that Brand was restrained during questioning and that a reasonable person in her position would not have felt free to leave.
{¶ 40} Because Officer Beebe's questioning of Brand was a custodial interrogation, Beebe violated Brand's Miranda rights. Therefore, the trial court properly suppressed Brand's statements. Accordingly, we hold that Brand's statements were inadmissible and overrule the state's second assignment of error.
{¶ 42} We must accept the trial court's findings of fact if they are supported by some competent and credible evidence. Both Officers Stevens and Beebe testified that Brand was on a backboard and in a neck brace when she took the HGN test. Officer Stevens testified that Brand was complaining of pain during the test, and he admitted that he knew that pain or injury could interfere with HGN test results. Officer Beebe testified that Brand's face was bruised and that Brand had said that she was uncomfortable and in pain while he spoke with her at the hospital.
{¶ 43} In State v. Bresson, the Ohio Supreme Court held, "A properly qualified officer may testify at trial regarding a driver's performance on the horizontal gaze nystagmus test as it pertains to the issue of probable cause to arrest and whether the driver was operating a vehicle while under the influence of alcohol."37 (Emphasis added.) The trial court, therefore, could have admitted the HGN test results, but it was not required to. *463
{¶ 44} The court made a factual determination that the HGN test results were unreliable. Because competent and credible evidence in the record supports the trial court's finding, we must accept that the HGN test results were unreliable. Based on that, we agree that the test results should have been suppressed. Accordingly, we overrule the state's third assignment of error.
Judgment affirmed in part, reversed in part and cause remanded.
HILDEBRANDT, P.J., and GORMAN, J., concur.
