STATE OF OHIO v. MATTHEW HOLLIS
Case No. 12CA34
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 17, 2013
2013-Ohio-2586
Hоn. Patricia A. Delaney, P.J., Hon. W. Scott Gwin, J., Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2011CR0181 D. JUDGMENT: AFFIRMED.
For Appellant: ROBERT E. CALESARIC, 35 South Park Place, Suite 150, Newark, OH 43055
For Appellee: JAMES J. MAYER, JR., RICHLAND CO. PROSECUTOR, JOHN C. NIEFT, 38 South Park St., Mansfield, OH 44902
{¶1} Appellant Matthew Hollis appeals from the January 3, 2012 decision of the Richland County Court of Common Pleas overruling his motion to suppress. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from the indictment, bill of particulars and еvidence presented by both parties at the hearings on appellant‘s motion to suppress.
{¶3} This case arose on September 12, 2010, a few minutes after midnight, when troopers of the Mansfield post of the Ohio State Highway Patrol were dispatched to a fatal traffic crash at the intersection of Reed Road and Route 30. Upon arrival, troopers discovered an overturned white Ford Ranger pickup truck in the median and a number of witnеsses at the scene.
{¶4} Upon investigation, troopers discovered appellant had driven the pickup truck from Reed Road onto Route 30 at a high rate of speed, failed to negotiate a curve, lost control, left the roadway, overcorrected, and overturned the vehicle.
{¶5} In addition to appellant, the truck contained three passengers: Michelle Antonelli was in the right-front passenger seat, and Matthew Opreаn and Allen Shirer were in the bed of the truck. Oprean and Shirer were ejected during the crash and landed in the roadway, exposed to oncoming traffic. Oprean was either killed during the crash, ejection, and impact, or was struck and killed by oncoming traffic; he was pronounced dead at the scene. Shirer and Antonelli sustained serious injuries.
{¶6} Troopers on the scene of the crash observed alcoholic beverage containers in аnd around the vehicle and the roadway, and detected an odor of an alcoholic beverage permeating the entire scene. The victims had already been transported by EMS, although appellant was briefly still present and spoke with a trooper who described him as “emotionally shooken up (sic).” Appellant was soon transported to MedCentral Hospital in Mansfield for treatment.
{¶7} Trooper Aaron Doerfler made contact with appellant in the MedCentral emergency room. Appellant was laying on a hospital bed covered with a blanket, and the trooper did not note any apparent visible injuries. He noticed the odor of alcohol about appellant‘s person and intended to read him the BMV 2255 form. Doerfler was unable to read the form, however, because appellant would not respond to his questions. Doerfler describеd appellant crying and wailing, conscious but unresponsive to Doerfler‘s questions and statements. Doerfler said he spent several minutes attempting to communicate with appellant, who said nothing or cried and “toss[ed] his head back and forth.” Doerfler filled out the BMV 2255 but noted appellant was unable to sign because he was unresponsive.
{¶8} Doerfler testified that if appellant had been responsive, he would have read the 2255 form to him and аsked him to submit to a blood test. Doerfler determined appellant was unresponsive and therefore asked a nurse to draw appellant‘s blood, providing her with a kit he kept in his patrol car for the purpose of chemical testing. The kit contained two vials for appellant‘s blood. The nurse drew the blood at 0154 hours and gave the vials to Doerfler, who sealed them with evidence tape. Both Doerfler and the nurse signed labels on the vials, Doerfler returned them to
{¶9} Investigating troopers testified the decision was made to request the blood draw based upon “informed consent” and did not seek a search warrant for appellant‘s blood. Blood was also drawn for medical alcohol testing purposes by MedCentral personnel.
{¶10} Subsequent testing of appellant‘s blood samples by the Ohio State Highway Patrol Crime Lab and MedCentral Hospital Laboratory found a whole blood alcohol concentration of .197 grams by weight of alcohol per one hundred milliliters (grams percent) and a blood serum concentration of .239 grams by weight of alcohol per one hundred milliliters.
Indictment, Motion to Suppress, and Plea
{¶11} Appellant was charged by indictment with one count of aggravated vehicular homicide pursuant to
{¶12} Appellant entered pleas of not guilty and filed a motion to suppress all evidence obtained from his arrest, including the chemical tests of his blood. A series
{¶13} The trial court overruled аppellant‘s motion to suppress on January 3, 2012. Thereafter, appellant entered pleas of no contest as charged and on April 16, 2012, was sentenced to an aggregate prison term of 6 years, in addition to a mandatory term of 3 years post-release control, a lifetime drivers-license suspension, and restitution.
{¶14} Appellant now appeals from the trial court‘s decision overruling his motion to suppress.
{¶15} Appellant raises three Assignments of Error:
{¶16} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY DENYING HIS MOTION TO SUPPRESS THE LEGAL WHOLE BLOOD DRAW EVIDENCE OBTAINED BY LAW ENFORCEMENT IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES AND RC 4511.19 AND RC 4511.191(sic).”
{¶17} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY DENYING HIS MOTION TO SUPPRESS THE MEDICAL PLASMA BLOOD DRAW EVIDENCE OBTAINED BY LAW ENFORCEMENT IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES AND RC 4511.19 AND RC 4511.191 (sic).”
{¶18} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY ALLOWING THE STATE TO PUT ON EXPERT TESTIMONY WITHOUT COMPLYING WITH CRIMINAL RULE 16 DENYING APPELLANT DUE PROCESS OF LAW.”
I., II.
{¶19} Appellant‘s first two assignments of error arise from the trial court‘s rulings upon the motion to suppress and will be addressed together.
Standard of Review
Appellate review of a trial court‘s decision to deny a motion to suppress involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to resolve questions of fact and to evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996). A reviewing court is bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must independently determine as a matter of law, without deference to the trial court‘s conclusion, whether the trial court‘s decision meets the applicable legal standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other grounds.
{¶20} There are three methods of challenging a trial court‘s ruling on a motion to suppress on аppeal. First, an appellant may challenge the trial court‘s finding of fact. In reviewing a challenge of this nature, an appellate court must determine
Probable Cause and Arrest
{¶21} First, аppellant contends troopers had no probable cause to arrest him and that he was not the subject of a valid arrest which would trigger the provisions of implied consent. We disagree.
{¶22} The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution prohibit the government from conducting unreasonable searches and seizures of persons or their property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Specifically, the Fourth Amendment protects pеrsons against unjustified or improper intrusions into a person‘s privacy, including bodily intrusion. See State v. Gross, 5th Dist. No. CT 96-055 (May 24, 1999), citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
{¶23} It is well-established that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The United States Supreme Court has recognized that the Fourth Amendment‘s “proper functiоn is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662(1985), quoting Schmerber, supra, at 768. However, “a suspect, upon request of a police officer, may voluntarily consent to submit to a blood test to determine the concentration of alcohol in his or her blood. Such consent constitutes actual consent * * *.” Fairfield v. Regner, 23 Ohio App.3d 79, 85, 491 N.E.2d 333 (12th Dist.1985).
{¶24} Ohio‘s statutory implied consent law is found in
Any person who operates a vehicle * * * upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle * * * shall be deemed to have given consent to a chemical test or tests of the person‘s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the рerson‘s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of division (A) or (B) of
section 4511.19 of the Revised Code, section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance, or a municipal OVI ordinance. (Emphasis added).
{¶25} Appellant argues here that the “implied consent to testing” provisions of
{¶26} We have also recognized, however, the reality of сonstructive arrest, particularly in cases such as the one sub judice in which the subject of the drunken driving investigation is hospitalized or undergoing treatment and arrest per se is not feasible. That doesn‘t mean the investigation stops. In the instant case, the trial court applied the rationale of our decision in State v. Groves, 5th Dist. No. 10CA18, 2010-Ohio-5089, which we also find to be applicable. In that case, the driver was hospitalized when he was questioned by the officer and read the BMV 2255; the driver
Despite this court‘s holding in State v. Kirschner, [5th Dist.] No.2001CA00107, 2001-Ohio-1915, the administrative regulations in the case sub judice were fulfilled. Appellant was told he was under arrest. A citation would have been issued at the hospital but for appellant‘s medical emergency. To disallow the results of the blood draw because of the intervening urgent circumstances would place form over substance. The purpose of the mandatory language of the implied consent law is to inform the suspect of his various rights under 4511.191 and the administrative license provisions for non-consent. The language contained in the BMV 2250 form was sufficient to establish an “arrest.”
State v. Groves, 5th Dist. No. 10CA18, 2010-Ohio-5089, ¶ 19.
{¶27} We find the trooper‘s interaction with appellant at the hospital in obtaining the blood sample after his constructive arrest compliеd with
{¶28} Appellant further argues, though, that no probable cause existed to arrest him for O.V.I., and we disagree. A police officer has probable cause for an arrest if the facts and circumstances within his knowledge are sufficient to cause a reasonably prudent person to believe that the defendant has committed the offense.
{¶29} The tragic facts and circumstances of the instant case are replete with probable cause for appellant‘s constructive arrest for O.V.I. The circumstances of the crash, which include appellant losing control and overturning the vehicle at a high rate of speed, combined with the alcoholic beverage containers scattered throughout the scene, plus the odor of an alcoholic beverage emanating from appellant‘s person in the MedCentral E.R., constitute probable cause. We also note appellant‘s demeanor of moaning, wailing, and failing to respond to the trooper despite his responsiveness to hospital personnel.
Exigent Circumstances
{¶30} Appellant next argues appellee did not prove exigent circumstances existed which would permit his blood tо be drawn absent a search warrant. We note that if there are exigent circumstances and “an officer has probable cause to arrest a driver for DUI, the result of an analysis of a blood sample taken over the driver‘s objection and without consent is admissible in evidence, even if no warrant had been obtained.” State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 19, citing Schmerber v. California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The issues are whether exigent circumstances existed along with probable cause to arrest appellant for OVI prior to the evidentiary blood draw, and whether a reasonable procedure was used to extract the blood. Schmerber at 770-772; State v. Capehart, 12th Dist. No. CA2010-12-035, 2011-Ohio-2602, ¶ 10. If all of these elements are present, then appellant‘s consent was unnecessary for the blood draw results to be admissible. State v. Carr, 11th Dist. No. 2012-L-001, 2013-Ohio-737, ¶ 43.
{¶31} We have already determined probable cause existed to arrest appellant for O.V.I. Turning to the question of exigent circumstances, we have recognized that the potential for alcohol to dissipate within a suspect‘s blood system constitutes exigent circumstances. State v. Anderson, 5th Dist. No. 00CAA12039, 2001 WL 967900, *2, appeal not allowed, 94 Ohio St.3d 1410, 759 N.E.2d 787. Other courts have held likewise. “It is beyond cavil that alcohol in an individual‘s system progressively dissipates over a short period of time.” Willoughby v. Dunham, 11th Dist. No. 2010-L-068, 2011-Ohio-2586, ¶ 37; Schmerber at 770 (“the percentage of
{¶32} In the instant case, troopers had probablе cause to suspect appellant was under the influence of alcohol after encountering him at the scene of the accident. Appellee presented evidence through Morrow‘s testimony that a search warrant would have taken “hours” to obtain. We find exigent circumstances existed.
{¶33} Finally, the Schmerber court also required that, provided exigent circumstances and probable cause exist, the blood must also be drawn in a reasonable manner. Here, the blood was drawn by a nurse who used gloves, used the non-alcoholic iodine swab in the trooper‘s kit to clean the area, used a sterile needle from stock, and collected the sample into a grey-topped vacuum tube in the kit containing preservative and anticoagulant materials. No evidence exists this was not done using the typical, reasonable procedures used for extracting blood and, therefore, this element of Schmerber was met. See State v. Capehart, 12th Dist. No. CA2010-12-035, 2011-Ohio-2602, at ¶ 13 (“because the blood sample was drawn by
Timely Blood Draw
{¶34} Appellant next argues appellee failed to show the blood draw was requested within two hours and drawn within three hours of operation, and did not establish substantial compliance with
{¶35} Appellant insists throughout his argument that the time of the crash was merely speculative, but this assertion is not borne out by the record. The trial court found the crash occurred at midnight, and this finding is supported by competent credible evidence. Trooper Beringo tеstified the time of dispatch was 12:04 and it is reasonable to conclude from the circumstantial evidence that the crash had occurred
{¶36} The trial court‘s conclusiоn that the blood was drawn within two hours of the crash is supported by competent, credible evidence. Appellant was immediately transported to MedCentral by the EMS squad, where Trooper Doerfler later made contact with him. Doerfler testified that he read the BMV 2255 form at 0120 hours, the blood was drawn at 0154 hours, and he placed the sealed kit containing the samples into the mailbox near the hospital at 0212 hours.
{¶37} Appellant also argues appellee did not establish that a solid anticoagulant was used because two witnesses testified the tubes appeared to be empty. Appellant‘s assertion is belied by the fact that the lab was able to obtain a sample from the tubes, in other words, the blood samples were still in liquid form upon testing. As appellee points out, if the anticoagulant was missing, the samples would have been solid and unable to be tested.
Blood Plasma Issues
{¶38} Appellant further argues thе trial court should have suppressed the blood plasma evidence because the testing procedure was “tainted” and does not comply with the Rules of Evidence. We note, however, that the trial court found the hospital blood alcohol test “may only be used in evidence to prove alcohol impaired driving if it is offered with expert testimony.” While we have already concluded that the testing was performed within three hours of oрeration, supra, appellant is charged with a
{¶39} The evidence in this case established a MedCentral phlebotomist made a separate blood draw pursuant to medical orders. Appellant‘s arm was cleaned with water and gauze, and blood was drawn into a tube labeled and bar-coded specifically for appellant, labeled with the technician‘s initials and time of draw. The blood tube was placed in a “bio-bag” and sent directly to the hospital lab through the hospital‘s pneumatic tube system. Upon receipt in the lab, another technician centrifuged the sample to separate the blood plasma and tеsted the sample on the Siemens Advia 1800 instrument by means of the alcohol dehydrogenase enzymatic method at 1:47 a.m.
{¶40} We find the trial court‘s findings of fact to be supported by competent, credible evidence. The trial court did not err in overruling appellant‘s motion to suppress.
{¶41} Appellant‘s first and second assignments of error are overruled.
III.
{¶42} In his third assignment of error, appellant summarily argues the trial court should not have permitted appеllee to present the testimony of two “experts”
{¶43} We note the “experts” appellant complains of, employees of the MedCentral lab, did not testify as experts within the meaning of Crim.R. 16(K). Instead, they were merely fact witnesses who testified to their procedures and the testing performed on appellant‘s sample in response to argumеnts raised in what appellee characterizes as a “shotgun motion to suppress.” Moreover, these witnesses testified at a suppression hearing and not at trial.
{¶44} The trial court did not err in permitting the witnesses to testify and appellant‘s third assignment of error is without merit.
{¶45} Having overruled appellant‘s three assignments of error, the judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Gwin, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
PAD:kgb
STATE OF OHIO v. MATTHEW HOLLIS
Case No. 12CA34
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
2013-Ohio-2586
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion on file, the judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE