STATE OF OHIO, PLAINTIFF-APPELLEE, v. DARREN EATON, DEFENDANT-APPELLANT.
CASE NO. 2-10-10, CASE NO. 2-10-11
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
December 13, 2010
2010-Ohio-6065
Appeal from Auglaize County Municipal Court, Trial Court Nos. 09 TRC 3316 and 09 CRB 340. Judgment Affirmed in Part, Reversed in Part and Cause Remanded.
Jon J. Saia for Appellant
Darren L. Meade for Appellee
SHAW, J.
{¶1} Defendant-Appellant Darren A. Eaton (“Eaton“) appeals the February 12, 2010 judgments of the Auglaize County Municipal Court finding him guilty of OVI in violation of
{¶2} On June 6, 2009, at approximately 3:00 a.m., Officer Welker of the Wapakoneta Police Department noticed a rogue set of tire tracks crossing the curb and extending over the grassy lawn situated in front of the Neil Armstrong Museum. Officer Welker observed that the tracks continued through the grass for approximately 100 yards and ended in the parking lot of the Museum. Officer Welker drove his patrol car around to the parking lot where the tracks appeared to end. There, he found a commercial vehicle driven by Eaton with the engine still running. Officer Welker activated the overhead lights on his vehicle to signal Eaton to stop. Eaton reversed his vehicle to park in one of the marked parking
{¶3} The dashboard camera in Officer Welker‘s cruiser recorded the stop. Officer Welker asked Eaton to get out of the vehicle and confirmed Eaton‘s identity by reviewing his commercial driver‘s license. Officer Welker testified that upon his initial contact with Eaton he immediately noticed a strong odor of alcohol coming from inside Eaton‘s vehicle. He further testified that he noticed Eaton‘s eyes appeared bloodshot and glassy, and that Eaton was also unsteady on his feet. At this point, Officer Cox had arrived on the scene to offer his assistance to Officer Welker with the stop. Officers Welker and Cox conducted a search of Eaton‘s vehicle and found a half-emptied beer bottle which was still cold to the touch. Officer Welker administered standard field sobriety tests to Eaton and based on Eaton‘s performance determined that he was under the influence.
{¶4} Officer Welker advised Eaton that he was under arrest and asked him to turn around and place his hands on the hood of the police cruiser so that Officer Welker could handcuff him. Eaton failed to comply with these orders and prevented Officer Welker from securing the handcuffs around his hands. Officer Welker warned Eaton that he would be tasered if he persisted in being uncooperative. Despite these warnings, Eaton refused to comply with Officer
{¶5} Officer Welker then transported Eaton to the Auglaize County Sheriff‘s Office so that he could administer a breath test to Eaton. The conversation that took place between Eaton and Officer Welker was captured on the microphone attached to the lapel of Officer Welker‘s uniform. Officer Welker read to Eaton the contents on the back of the BMV Form 2255 which included the consequences for refusing to submit to a chemical test for a person driving a commercial vehicle. Eaton then signed the BMV Form 2255 acknowledging that the information on the back of the form was read to him and that he received a copy of the form. Officer Welker then mistakenly informed Eaton that the legal blood-alcohol content for a commercial driver was .02 of one per cent or more by whole blood or breath, when in fact the legal limit was .04 of one per cent or more by whole blood or breath for someone operating a commercial vehicle. Initially, Eaton agreed to submit to the breath test, but upon further consideration ultimately refused to submit to any chemical testing.
{¶6} Eaton was charged with the following offenses: refusing to submit to a chemical test under
{¶7} On June 10, 2009, Eaton appeared before the court and entered a plea of not guilty to the charges. On October 26, 2009, Eaton filed a motion in limine to preclude evidence of his refusal to submit to a chemical test. As the basis for his motion to preclude evidence of his refusal, Eaton argued that his refusal was “coerced” because Officer Welker incorrectly informed him of the per se legal blood-alcohol limit for commercial drivers. On October 26, 2009, Eaton filed an ALS appeal. On December 1, 2009, the trial court overruled Eaton‘s motion in limine.
{¶8} On January 4, 2010, Eaton‘s case was tried before a jury. Officers Welker and Cox testified for the prosecution and Eaton testified on his own behalf. The video and audio recordings of the stop and subsequent events including Eaton‘s refusal were played for the jury. The court ultimately dismissed the charges of open container and reckless operation pursuant to a Crim.R. 29 motion. The charges of refusing to submit to a chemical test, OVI and resisting arrest were
{¶9} At the February 9, 2010 sentencing hearing, the court placed Eaton on non-reporting community control sanctions, ordered him to pay applicable fines and suspended his driver‘s license for one year. On February 12, 2010, the court overruled Eaton‘s ALS appeal.
{¶10} Eaton filed the instant appeal, asserting the following assignments of error:
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING DEFENDANT‘S MOTION IN LIMINE AND PERMITTING EVIDENCE OF DEFENDANT‘S REFUSAL OF A BREATHALYZER TEST TO BE SUBMITTED TO THE JURY
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN DENYING DEFENDANT‘S APPEAL OF HIS ADMINISTRATIVE LICENSE SUSPENSION
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN PROVIDING THE JURY INSTRUCTIONS WHICH PERMITTED THE JURY TO CONSIDER EVIDENCE OF ANY “MEASURABLE OR DETECTABLE” AMOUNT OF ALCOHOL AND DEFENANT‘S REFUSAL OF A BREATHALYZER, RESULTING IN HIS CONVICTION
THE TRIAL COURT COMMITTED PLAIN ERROR IN FINDING THAT DEFENDANT WAS CHARGED WITH AND CONVICTED OF A VIOLATION OF R.C. § 4506.15(F) , WHEN HE WAS ACTUALLY CHARGED WITH A VIOLATION OF R.C. § 4506.17(D)
First Assignment of Error
{¶11} In his first assignment of error, Eaton maintains that the trial court erred when it overruled his “Motion in Limine to Preclude Evidence of a Refusal of a Chemical Test.”
{¶12} The record reflects that Eaton filed a motion in limine, seeking to exclude the evidence of his refusal of a chemical test, but failed to object to the evidence at trial. “[A] motion in limine does not preserve the record on appeal [;] * * * [a]n appellate court need not review the propriety of such an order unless the claimed error is preserved by an objection * * * when the issue is actually reached * * * at trial.” (Emphasis omitted.) State v. Grubb (1986), 28 Ohio St.3d 199, 203, 503 N.E.2d 142.
{¶13} While there is significant authority indicating that the failure to object to the questioned evidence at trial constitutes an absolute waiver of the issue on appeal from a denial of the motion in limine, we elect to proceed on a plain error analysis in this instance. See for example, State v. Scott, Montgomery App. No. 22745, 2010-Ohio-1919, at ¶ 29; Indep. Furniture Sales, Inc. v. Martin, 184 Ohio App.3d 562, 570, 2009-Ohio-5697, 921 N.E.2d 718, 725; State v. McCarley, Summit App. No. 23607, 2008-Ohio-552, ¶ 30; Estate of Beavers v. Knapp, 175 Ohio App.3d 758, 787, 889 N.E.2d 181, 2008-Ohio-2023, ¶ 69. Accordingly, in this case we will proceed on the basis that Eaton waived all but plain error with regard to the issue on appeal. See State v. McKnight, 107 Ohio St.3d 101, 116, 2005-Ohio-6046, ¶ 97, 837 N.E.2d 315.
{¶14} Plain error exists where there is an obvious deviation from a legal rule which affected the defendant‘s substantial rights, or influenced the outcome of the proceeding. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. An error does not rise to the level of a plain error unless, but for the error, the outcome of the trial would have been different. State v. Hancock, 108 Ohio St.3d 57, 67, 2006-Ohio-160, 840 N.E.2d 1032.
{¶15} As the basis for his argument, Eaton contends that his refusal to submit to a chemical test was “coerced” because Officer Welker incorrectly informed him that the legal blood-alcohol content for a commercial driver was .02 of one per cent or more by whole blood or breath when in actuality the relevant statutory authority states that the legal limit for commercial drivers is .04 of one per cent or more by whole blood or breath. See
{¶17} In this case, Eaton does not allege that Officer Welker‘s misstatement regarding the per se blood-alcohol limit for a commercial driver in anyway impinged upon his constitutional rights. The sole basis for Eaton‘s contention that his refusal should be rendered involuntary and that the evidence of his refusal should be excluded, is based on statutory law. However, in the context of
{¶18} Our review of the record reveals that Officer Welker properly advised Eaton both as to the statutory provisions governing a licensed driver‘s implied consent to submit to a chemical test and as to the consequences for a driver of a commercial vehicle for refusing to submit to chemical testing. In fact, the conversation between Eaton and Officer Welker at the Auglaize County Sheriff‘s Office was captured by Officer Welker‘s lapel microphone and was recorded.
{¶19} Prior to reading the relevant portions of the BMV Form 2255 to Eaton, Officer Welker made it a point to specifically bring to Eaton‘s attention the information pertinent to drivers of commercial vehicles. Officer Welker then asked Eaton to follow along with him as he read the implied consent provisions on the BMV Form 2255 regarding the charge of OVI and the following provision of the form governing an offender driving a commercial vehicle:
I am a law enforcement officer; I have probable cause to stop or detain you. After investigating the circumstances, I have probable cause to believe you were operating a commercial motor vehicle in violation of section 4506.15 of the Ohio Revised Code. I request that you submit to a test or tests of your blood, breath, or urine for the purpose of determining your alcohol concentration or the presence of any controlled substance. If you refuse to submit to the test or tests you will immediately be placed out-of-service for twenty-four-hours; you will be disqualified from operating a commercial motor vehicle for a period of not less than one year; and you will be required to surrender you commercial driver‘s license to me.
(Emphasis added.)
{¶20} Officer Welker then asked Eaton if he had any questions regarding the provisions read to him. Eaton asked for clarification on the length of disqualification from operating a commercial vehicle for refusing to submit to a chemical test. Officer Welker reiterated that if Eaton chose to refuse the chemical test, his disqualification from operating a commercial vehicle would be for period of not less than one year.
{¶21} Officer Welker then simplified Eaton‘s situation by informing him that he had two choices, submit to the test or refuse. Officer Welker further explained to Eaton that if he submitted to the test and was found under the legal limit, Eaton‘s license would not be suspended. Officer Welker then incorrectly stated that the per se legal limit for drivers of a commercial vehicle was .02 of one per cent or more by whole blood or breath and asked Eaton if he was willing to
{¶22} Initially, Eaton agreed to submit to the chemical test. However, while Officer Welker prepared the breathalyzer, Eaton continued to grapple with this decision by repeatedly asking Officer Welker what he thought Eaton should do. Each time Officer Welker refused to give Eaton advice on the subject and reminded Eaton that he was an adult and had to make his own decisions. It appears that Eaton was struggling to calculate whether the two beers he admitted to consuming hours earlier, between 9:30p.m. and 11:30p.m., would place him over the .02 limit as stated by Officer Welker. Eaton now argues that based on his “calculations,” he surmised it would be best to refuse to submit to a chemical test. Eaton‘s testimony at trial further elaborated on his thought process during this time:
DEFENSE ATTORNEY: When you heard the point 0 two, what was your thought process then?
EATON: Well, he—I was trying to get information out of one of the Officers to help me try to calculate how my blood alcohol was going to be—uh at that time I told them I drank two beers at nine-thirty to eleven-thirty—give or take in a half-an-hour hour—I am not gonna be precise and to the moment—I don‘t know exactly. And I am trying to calculate in my head how much alcohol—I asked him numerous times I said—is that one beer-every two hours? Because I was worried that the point o two—I knew it used to be-uh-one o when I was in High School and everybody always said that it was one beer per hour. That‘s how—I am from West Liberty and that‘s how we were
instructed that if you drank more than one beer per hour you were over the legal limit. * * *
DEFENSE ATTORNEY: So, what‘s the next thing that goes through your mind as you [sic] thinking about point o two?
EATON: I am trying to calculate in my head how many beers—I am not real smart and I have tried to calculate what my blood alcohol content would be. * * * I‘m trying to figure out how close I am to being—I thought he had me going or coming if I am at point four. You know what I mean? And I was too tense over—then he was going to get me here if I refused, he was going to get me here. I was trying to make a legitimate uh-conclusion.
DEFENSE ATTORNEY: So what did you figure—in your way of calculating did you calculate as to what you thought was the highest you could get?
EATON: Yes, numerous different times I kept—and I am trying to talk to the Officers and ask them and I am trying to come up with it, and the way I had it figured I was between two and [sic] o two and o four. And it was about a four or five hour period and two beers and I figured one beer per hour divide that by four—I had it all figured out in my head. A couple different times of course I would come up with something different cause I am not too smart. But I was trying and I was asking for his advice and the other Gentleman‘s advice. And I understand they don‘t have to give me advice.
DEFENSE ATTORNEY: Ok, if the Officer had told you point o four—would you have taken the test?
EATON: I believe I would today. That night I was going over my math and that opportunity wasn‘t given to me so I don‘t know. Uh-I was right there and I guess I probably would have taken it. I almost took it at point o two. And I probably should have—I know it‘s one of those things.
{¶23} There is a significant difference between the argument that a law enforcement officer failed to fulfill certain statutory obligations to inform a defendant as to the legal consequences of a refusal or that the officer provided false information to coerce the defendant‘s consent to take the test and the argument that a law enforcement officer failed to provide all of the proper information necessary for the defendant to personally determine whether it was in his best legal interests to take the test or not.
{¶24} There is no statutory or constitutional authority to require that law enforcement officers must accurately advise defendants as to all of the information necessary to determine whether taking the test is in their best personal or legal interests. Eaton attempts to blur the distinction between these two circumstances but we decline to adopt his argument.
{¶25} We further note that “[t]he reason [a defendant] refused to take a breath test is a disputed fact to be resolved by the jury.” Maumee v. Anistik, 69 Ohio St.3d. 339, 344, 1994-Ohio-157, 632 N.E.2d 497. At trial, Eaton was given the opportunity to advance and further develop the same arguments against the “voluntariness” of his refusal as he did in his motion in limine. In the end, it was left to the jury to weigh the credibility of the testimony elicited at trial to determine the “voluntary” nature of Eaton‘s refusal.
{¶27} Eaton‘s first assignment of error is, therefore, overruled.
Second Assignment of Error
{¶28} In his second assignment of error, Eaton maintains that the trial court erred when it denied Eaton‘s appeal of his administrative license suspension (“ALS“). Again, Eaton argues that Officer Welker‘s misstatement regarding the per se legal limit should render his ALS ineffective.
{¶29} At the outset, we note that
{¶30} As discussed above, each of these conditions were met by Officer Welker at the time of Eaton‘s arrest. The facts support that Officer Welker had reasonable grounds to believe that Eaton was operating his vehicle while intoxicated. Officer Welker then asked Eaton to submit to a chemical test and advised Eaton, at length, of the consequences of refusal which included a suspension of his commercial driver‘s license for a period not less than a year. Ultimately, Eaton chose not to submit to the breath test.
{¶31} It should be noted that nowhere in the statutory conditions mentioned above is the requirement that the officer inform the appellant of the applicable per se legal limit prior to requesting the appellant to submit to chemical test.3 Nor does Eaton direct our attention to any statutory provision which requires that he be given such notice. Simply put, Eaton was properly advised of the consequences of his refusal to the chemical test and having been apprised of the ramifications of his refusal, made the conscious decision to refuse to submit to any chemical testing. Moreover, Eaton was found guilty of refusing to submit to a
{¶32} The second assignment of error is, therefore, overruled.
Third Assignment or Error
{¶33} In his third assignment of error, Eaton argues that the trial court abused its discretion by improperly instructing the jury to consider whether Eaton had a “measurable or detectable” amount of alcohol in his system while driving his commercial vehicle at the time of incident. Again, Eaton‘s argument under this assignment of error is based, in part, upon a finding that evidence of his refusal to submit to a chemical test should have been excluded. Having found otherwise in the first assignment of error, we will proceed with Eaton‘s remaining argument which maintains that the trial court‘s instruction on this matter was misleading and confusing to the jury.
{¶34} The giving of jury instructions is within the sound discretion of the trial court and will not be disturbed upon appeal unless the record reflects that the trial court abused its discretion. State v. Guster (1981), 66 Ohio St.2d 266, 271-272, 421 N.E.2d 157. A strong presumption exists in favor of the propriety of jury
{¶35} The jury instruction at issue concerned Eaton‘s charge for refusing to submit to a chemical test under
The defendant is charged with refusing to submit to a test under section 4506.17. Before you can find the defendant guilty you must find beyond a reasonable doubt that on or about the 6th day of June, 2009, that the defendant, Darren A. Eaton did in Auglaize County, Ohio, drive a commercial vehicle. You must find beyond a reasonable doubt that the officer did have reasonable grounds to stop and detain Mr. Eaton and that after investigating the circumstances surrounding the operation of the commercial vehicle you must find beyond a reasonable doubt that the officer had reasonable grounds to believe that the defendant had a measurable or detectible amount of alcohol in his system. Finally, you must find that the defendant did refuse
to submit to the test or tests requested by the officer after having been warned that a refusal to submit to the test will result in the person being immediately being [sic] placed out of service for a period of twenty four hours and being disqualified from operating a commercial vehicle for not less than one year, and that the person is required to surrender the person‘s commercial driver‘s license to the peace officer. * * *
Evidence was presented regarding the legal limit of [sic] as to the blood alcohol content of a person operating a commercial vehicle. The law prohibits anyone driving a commercial vehicle while having a measurable or detectible amount of alcohol in the person‘s breath, blood or urine and also prohibits a person from driving a commercial vehicle with an alcohol concentration of .04 of one percent or more by whole blood or breath. There are additional penalties that are imposed when the person‘s alcohol concentration is at the .04 level or greater.
{¶36} Eaton especially takes issue with the second component of the jury charge above and argues that the instruction misled to the jury to believe that “if they were persuaded that [Eaton] had a ‘measurable and detectable’ amount of alcohol in his system while driving his commercial vehicle, that he would be found guilty of the charges against him.” (Appt‘s Brief, at 21). However, upon taking the disputed instruction out of “artificial isolation” and reviewing it in the context of the entire charge, we do not reach the same conclusion as Eaton.
{¶37} The first component of the instruction cited above tracks the relevant statutory law describing the offense with which Eaton was charged. Specifically,
(A) Any person who holds a commercial driver‘s license or operates a commercial motor vehicle requiring a commercial driver‘s license within this state shall be deemed to have given consent to a test or tests of the person‘s whole blood, blood serum or plasma, breath, or urine for the purpose of determining the person‘s alcohol concentration or the presence of any controlled substance or a metabolite of a controlled substance.
(B) A test or tests as provided in division (A) of this section may be administered at the direction of a peace officer having reasonable ground to stop or detain the person and, after investigating the circumstances surrounding the operation of the commercial motor vehicle, also having reasonable ground to believe the person was driving the commercial vehicle while having a measurable or detectable amount of alcohol or of a controlled substance or a metabolite of a controlled substance in the person‘s whole blood, blood serum or plasma, breath, or urine. Any such test shall be given within two hours of the time of the alleged violation.
{¶38} After reviewing the relevant statutory language above, it is evident that a necessary element of the offense with which Eaton was charged is that Officer Welker had reasonable ground to believe that Eaton was driving the commercial vehicle while having a measurable or detectable amount of alcohol in his system. Once Officer Welker made this threshold determination, the statute permitted Officer Welker to then ask Eaton to submit to a chemical test, which Eaton ultimately refused. In order to convict Eaton, the jury must have found
{¶39} Moreover, while the inclusion of the second component of the jury instructions stating the current law as it relates to a commercial driver may have been unnecessary, we do not find that its presence mislead the jury in the manner that Eaton suggests. Additionally, Eaton was also found guilty of OVI in violation of
Evidence has been introduced indicating the defendant was asked but refused to submit to a chemical test of his blood, breath, or urine to determine the amount of alcohol in his system for the purpose of suggesting that the defendant believed he was under the influence of alcohol. If you find that the defendant refused to submit to said test or tests, you may, but are not required, to consider this evidence along with all the other facts and circumstances in evidence in deciding whether the defendant was under the influence of alcohol. 4
{¶40} We believe that upon reading the instructions as a whole, it is clear the jury instructions articulated that in order to find Eaton guilty of refusing to submit to a chemical test, the jury had to find beyond a reasonable doubt that Eaton refused Officer Welker‘s request to submit to a chemical test. With regard to the OVI charge, the instructions clearly stated that the jury was permitted to consider Eaton‘s refusal to submit to a chemical test as evidence in deciding
{¶41} Accordingly, we overrule Eaton‘s third assignment of error.
Fourth Assignment of Error
{¶42} In his fourth assignment of error, Eaton contends that trial court committed plain error in finding that he was charged and convicted of ”
{¶43} The traffic citation charging the offense stated that Eaton “did refuse to submit to a chemical test under 4506.17 ORC.” The ticket then listed “4506.15(F)” as the offense charged. The actual code section proscribing a commercial driver from refusing to submit to a chemical test is
{¶44} Despite the misnumbering in the citation, we find that Eaton was fully apprised of the charges against him. Based on the description of the offense listed on the citation,
{¶45} Furthermore neither Eaton nor his counsel ever objected to the misnumbering of the statute on the citation prior to the trial. Criminal Rule
{¶46} In addition, Crim.R. 7(B) states, in pertinent part: “Error in the numerical designation or omission of the numerical designation shall not be ground for dismissal of the indictment or information, or for reversal of a conviction, if the error or omission did not prejudicially mislead the defendant.” In raising this assignment of error, Eaton fails to identify or otherwise direct our review to demonstrate how this error in the numerical designation prejudiced him or in any way prohibited him from fully defending himself against the charge.
{¶47} Rather, our review of the record indicates that at all points throughout the trial proceedings Eaton and his counsel understood that Eaton was charged with refusing to submit to a chemical while driving a commercial vehicle governed by
{¶48} However, as a matter of housekeeping, we must note that the trial court also made minor clerical errors when it misnumbered the relevant code section in its February 12, 2010 judgment entering Eaton‘s sentence. Criminal Rule 36 provides, “Clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time.” Therefore, we must remand this case for the purpose of correcting the Judgment Entry imposing Eaton‘s sentence on the refusal charge to properly list
{¶49} In addition, we note that there are two consolidated cases before us on appeal. Eaton‘s assignments of error pertain only to his conviction in case number 2009 TRC 03316, appeal number 02-10-10. However, despite there being no assignment of error addressing Eaton‘s conviction for resisting arrest in case
{¶50} For all these reasons, the judgments of the Auglaize County Municipal Court are affirmed as to the first, second and third assignments of error and reversed, in part, as to the fourth assignment of error for the purpose of correcting the clerical errors in the Judgment Entries imposing Eaton‘s sentence identified herein.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
WILLAMOWSKI, P.J., concurs.
/jlr
{¶51} I concur with the majority‘s conclusions as to the Second, Third, and Fourth Assignments of Error. However, on the First Assignment of Error, I would find that the trial court‘s denial of the motion in limine to exclude evidence of Appellant‘s refusal was not preserved for appeal. Having so determined the issue, I would decline to address the merits of the trial court‘s ruling.