STATE OF OHIO, Plaintiff-Appellee, vs. JASON CRACE, Defendant-Appellant.
Case No. 12CA13
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
Released: 07/26/13
[Cite as State v. Crace, 2013-Ohio-3417.]
McFarland, P.J.
DECISION AND JUDGMENT ENTRY
Timothy Young, Ohio Public Defender, and Jason A. Macke and Francisco E. Lüttecke, Assistant State Public Defenders, Columbus, Ohio, for Appellant.
Patrick J. Lang, Athens City Law Director, and James K. Stanley, Athens City Prosecutor, Athens, Ohio, for Appellee.
McFarland, P.J.
{¶1} Jason Crace appeals his convictions for operating a vehicle under the influence, driving under suspension, and a marked lanes violation after he pled no contest to the charges upon the trial court‘s denial of his motion to suppress. On appeal, Crace (Appellant hereinafter) contends that the trial court erred when it denied his motion to suppress his refusal to consent to chemical testing. Because we agree with the trial court‘s decision
FACTS
{¶2} This appeal involves the trial court‘s denial of Appellant‘s motion to suppress his refusal to consent to chemical testing in connection with his arrest for OVI, in violation of
“Defendant was the driver of a vehicle that crashed during the early evening hours of December 1, 2011. The crash scene was on State Route 56 about eight miles from Athens. The vehicle was not completely blocking the roadway when it came to rest.
Ohio Highway Patrol Post 5 received a telephone call at 8:24 p.m. from Ohio Department of Natural Resources Officer
Perko reporting that he had come upon the accident scene at 8:15 p.m. Ohio Highway Patrol Trooper Davis was dispatched and arrived on the scene at 8:34 p.m. Defendant admitted that he had been driving the vehicle but declined to give a statement as to the circumstances of the one-vehicle accident. Davis noted that although defendant said that he was not injured, he was unsteady. Davis also noted that he had a strong odor of an alcoholic beverage, slurred speech, and red, glassy, bloodshot eyes.
On a properly conducted horizontal-gaze-nystagmus (“HGN“) test, defendant scored six of six possible clues. Defendant attempted to begin the walk-and-turn test but was unable to maintain the opening heel-to-toe position and then refused to complete that test. Defendant also refused to attempt the one-leg-stand test and portable breath test.
Defendant was arrested for operating a vehicle while under the influence of alcohol (“OVI“), and properly advised of the consequences under
R.C. 4511.192 of testing or refusing, and he refused to take an evidentiary breath test. This refusal occurred at 9:40 p.m.In writing the OVI citation, Davis noted the time of the violation as 8:00 p.m. There was no evidence presented to establish that precise time. The basis for that time was Davis‘s opinion that an accident on a state highway would be noticed and reported within a very short amount of time.”1
{¶3} After the trial court denied his motion to suppress, Appellant entered a plea of no contest to operating a vehicle under the influence, in violation of
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED WHEN IT DENIED MR. CRACE‘S MOTION TO SUPPRESS HIS REFUSAL TO CONSENT TO CHEMICAL TESTING.”
LEGAL ANALYSIS
In his sole assignment of error, Appellant contends that the trial court erred in denying his motion to suppress his refusal to consent to chemical
{¶4} Our review of a trial court‘s decision on a motion to suppress presents a mixed question of law and fact. State v. Roberts, 110 Ohio St. 3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100; citing State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the trial court acts as the trier of fact and is in the best position to resolve factual questions and evaluate witness credibility. Id. Accordingly, we defer to the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Landrum, 137 Ohio App. 3d 718, 722, 739 N.E.2d 1159 (4th Dist. 2000). Accepting those facts as true, we must independently determine whether the trial court reached the correct legal conclusion in analyzing the facts of the case. Roberts at ¶ 100, citing Burnside at ¶ 8.
{¶5} Generally, at issue in this case is whether Appellant‘s refusal to submit to chemical testing should have been suppressed. In State v. Denney, 5th Dist. No. 03CA62, 2004-Ohio-2024, ¶ 24, the court noted that “evidence regarding a refusal to submit to a breath or blood test is admissible.” Citing Maumee v. Anistick, 69 Ohio St. 3d 339, 632 N.E.2d 497 (1994). Further, the
{¶6} Other districts have also held that refusal to submit to testing is relevant and admissible. See, Columbus v. Bickis, 10th Dist. No. 09AP898, 2010-Ohio-3208, ¶ 25 (“[a] defendant‘s refusal to perform field sobriety tests is relevant evidence under
{¶7} Appellant was charged and pled no contest to OVI in violation of
“No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this section, or any other equivalent offense shall do both of the following:
(a) Operate any vehicle, streetcar, or trackless trolley within this state while under the influence of alcohol, a drug of abuse, or a combination of them;
(b) Subsequent to being arrested for operating the vehicle, streetcar, or trackless trolley as described in division (A)(2)(a) of this section, being asked by a law enforcement officer to submit to a chemical test or tests under section 4511.191 of the Revised Code, and being advised by the officer in accordance with section 4511.192 of the Revised Code of the consequences of the person‘s refusal or submission to the test or tests, refuse to submit to the test or tests.”2
{¶8} Appellant conceded that there was probable cause for an OVI arrest at his suppression hearing and the trial court noted that concession in
{¶9} Appellee contends that Appellant‘s argument is based upon the premise that the request for the chemical test occurred beyond the two hour limit as set forth in
{¶10} Like the trial court, we conclude that Appellant‘s refusal to submit to chemical testing was relevant and admissible and should not have been suppressed. In reaching this decision, we are persuaded by the reasoning set forth in State v. Barnhart, 6th Dist. No. H-10-005, 2011-Ohio-2693. Barnhart was convicted of operating a motorcycle while under the influence of alcohol. Id. Much like the case sub judice, Barnhart argued that his refusal must be suppressed because it could not be shown that the BMV Form 2255 was read to him within two hours of the alleged violation. Id. at ¶ 15. In response to this argument, the Barnhart court reasoned that “[w]hile the result of an untimely chemical test might be suppressible, the fact that the suspect refused is not.” Id.
{¶11} In reaching its decision, the Barnhart court relied on State v. Marsh, 7th Dist. No. 04-BE-18, 2005-Ohio-4690, which rejected the same argument. Id. at ¶ 16-17. In Marsh, the court found that it was wholly irrelevant when the officers asked Marsh to submit to a test. The Marsh court further reasoned that a refusal was relevant in that in that it serves as an indicia of guilt, and that it did not matter if the refusal was made before or
{¶12} In light of the foregoing, we find that the officer‘s request that Appellant submit to chemical testing, even if made beyond the two hour statutory time period, and Appellant‘s subsequent refusal, to be relevant and admissible. As such, we cannot conclude that the trial court erred in denying Appellant‘s motion to suppress evidence of his refusal to submit to chemical testing. Accordingly, Appellant‘s sole assignment of error is overruled.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs herein be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, J.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment Only.
For the Court,
By: _____________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.