State v. HollowellState v. Hollowell
Rendered on the 11th day of March, 2011.
JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
KATHRYN L. BOWLING, Atty. Reg. No. 0084442, 111 W. First Street, Suite 205, Dayton, Ohio 45402
Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} After the Montgomery County Common Pleas Court overruled in part his motion to suppress, George Hollowell pled no contest to aggravated vehicular assault, a second degree felony due to Hollowell‘s driving under suspension. The trial court sentenced him accordingly.
I
{¶ 3} The State‘s evidence at the suppression hearing reveals the following facts:
{¶ 4} At approximately 6:17 p.m.1 on October 27, 2008, J. Daniel McMillen observed a three-vehicle crash on North Main Street near Macy Lane in Harrison Township. McMillen immediately called 911.
{¶ 5} Deputy Josh Walters of the Montgomery County Sheriff‘s Office responded to the scene at 6:20 p.m. A black Pontiac Sunfire was partially on the sidewalk in the grass area, a Cadillac Escalade was in the middle of the road on its side (driver‘s side down), and an older Ford Escort with heavy front-end damage was just south of the Escalade. Walters blocked the roadway with his cruiser, checked all of the vehicles to see if anyone was still inside, called an ambulance for an injured woman, and removed a dog from one of the vehicles. Walters spoke briefly with several individuals, including Hollowell, gathering basic information about the crash. Several people reported that Hollowell, the driver of the Escalade, was responsible for the accident.
{¶ 6} Deputy Walters spoke with Hollowell a second time. During this conversation, Walters smelled the odor of an alcoholic beverage on Hollowell‘s breath, and he noticed that Hollowell‘s speech was slurred. At this point, however, Walters did not
{¶ 7} Deputy Walters placed Hollowell into the back of his cruiser (without handcuffs) and took Hollowell‘s crash statement. Walters noticed that Hollowell‘s speech was very slurred, his eyes were bloodshot, and the odor of alcoholic beverage “was filling up the inside of the car.” The heat was on in the cruiser, and Walters discounted the possibility that Hollowell‘s slurred speech was due to the cold weather; Walters concluded that consumption of alcohol was the probable cause of the slurred speech. Walters asked Hollowell several times if he would take the standardized field sobriety test; Walters informed Hollowell that the failure to do so might result in his arrest. Hollowell declined to submit to the test.
{¶ 8} Walters arrested Hollowell, informed him of his Miranda rights, and read him a copy of BMV Form 2255. Hollowell made no statements after receiving his Miranda warning. Walters asked Hollowell if he would consent to a chemical (breathalyzer) or blood test. Hollowell refused.
{¶ 9} Deputy Walters spoke with Sergeant Richard Moebius, who had also responded to the scene, along with other deputies. Sgt. Moebius had not talked to any of the drivers, but he had looked inside the vehicles and observed an empty Budweiser Select beer bottle inside the Escalade; an evidence technician later removed the empty bottle and one full bottle from the vehicle. After Deputy Walters advised Sgt. Moebius that Hollowell had refused the breathalyzer test, Moebius prepared an affidavit for a search warrant to
{¶ 10} At 9:00 p.m., a judge signed the search warrant. Sgt. Moebius called Deputy Walters on his cell phone and advised him to have hospital staff remove some of Hollowell‘s blood. A phlebotomist drew Hollowell‘s blood, using an OVI kit, at 9:17 p.m. The phlebotomist sealed the kit and gave it to Walters. After Moebius got to the hospital, Walters handed the kit to Moebius, who took the kit to the property room at the Montgomery County Sheriff‘s Office and placed it in the refrigerator. The following day, the kit was taken to the Miami Valley Regional Crime Lab (MVRCL) to be tested for the alcohol concentration in the blood. The sample was stored in a refrigerator at the lab until it was tested on November 5, 2008.
{¶ 11} On November 12, 2008, Deputy Joshua Evers, a crash reconstructionist, obtained a search warrant for the Escalade. Evers downloaded data from the vehicle‘s airbag control module, which can provide information about the vehicle at or near the time of the crash.
{¶ 12} In October 2009, Hollowell was charged with aggravated vehicular assault, in violation of
{¶ 13} Hollowell moved to suppress the evidence against him on four grounds. First, he argued that the blood was not drawn and stored in compliance with
{¶ 14} The trial court held hearings on the motion to suppress on December 16 and 18, 2009. On January 20, 2010, the trial court orally overruled in part and sustained in part Hollowell‘s motion. Beginning with Hollowell‘s statements, the court found that Hollowell voluntarily waived his Miranda rights and that any statement made subsequent thereto was admissible. The court found that Hollowell was not in custody before he was placed in the cruiser and, thus, any statements made outside the vehicle were constitutionally valid. However, the court suppressed any written statement that Hollowell made in the back of the cruiser. As for the beer bottles, the court determined that they were lawfully seized under the plain view doctrine.
{¶ 15} Turning to the two search warrants, the trial court concluded that the first warrant was issued based upon probable cause to believe Hollowell‘s blood would contain evidence of an OVI violation. Similarly, the court found that the second warrant was based on probable cause to believe that the data obtained from the airbag control module would have evidentiary value regarding the offenses with which Hollowell was charged.
{¶ 16} Finally, the court addressed compliance with the statutory and administrative standards relating to a blood draw from a person and the analysis of that blood. The court found that the 911 call was made at 6:17 p.m. and, thus, “by the thinnest of margins, the
{¶ 17} On March 24, 2010, Hollowell pled no contest to aggravated vehicular assault. The State agreed to nolle the OVI charge. The court subsequently sentenced Hollowell to a mandatory term of two years in prison, suspended his driver‘s license for four years, and ordered him to pay restitution to the victim.
{¶ 18} Hollowell appeals, raising one assignment of error.
II
{¶ 19} In his assignment of error, Hollowell claims that the trial court erred in overruling his motion to suppress. His sole argument is that the blood test should have been suppressed, because the investigating officers failed to collect a blood sample within the required three-hour time period. Hollowell does not challenge any other portion of the trial court‘s ruling.
{¶ 20} In addressing a motion to suppress, the trial court assumes the role of the trier of fact. State v. Morgan, Montgomery App. No. 18985, 2002-Ohio-268, citing State v. Curry (1994), 95 Ohio App.3d 93, 96. The court must determine the credibility of the witnesses and weigh the evidence presented at the hearing. Id. In reviewing the trial
{¶ 21} Hollowell pled no contest to a violation of
{¶ 22} “(A) No person, while operating or participating in the operation of a motor vehicle, *** shall cause serious physical harm to another person *** in any of the following ways:
{¶ 23} “(1)(a) As the proximate result of committing a violation of division (A) of section 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance[.]”
{¶ 24} Of relevance,
{¶ 25}
{¶ 27} Confusion regarding the continued viability of Lucas arose after State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, which held that “in a criminal prosecution for aggravated vehicular homicide that depends upon proof of an
{¶ 28} The Supreme Court has since clarified that Mayl “complemented” Lucas and
{¶ 29} “As outlined above, Lucas and Mayl deal with two distinct issues. Lucas focused on the two-hour window prescribed in the statute, while Mayl addresses the nature of substantial compliance with the ODH regulations. In fact, like Lucas before it, Mayl acknowledges that the purpose of substantial compliance with the ODH regulations is ‘to ensure the accuracy of bodily substance test results,’ Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 40; cf. Lucas, 40 Ohio St.3d at 103, 532 N.E.2d 130. The time frame at issue here does not by itself implicate the accuracy of the test results. The substantial-compliance component of Mayl, therefore, does not overrule Lucas.” Hassler at ¶15.
{¶ 30} In the present case, Hollowell was charged with aggravated vehicular assault based on a violation of
{¶ 32} Matthew Haines, administrative sergeant for the regional dispatch center, was called as a witness by defense counsel to discuss the dispatch log for the accident. Haines discussed the term “initiate” on the call log, stating that the “initiate” time is the first time that the dispatcher entering information actually hit the “enter” button on the keyboard. Haines stated that the “initiate” time is typically when the 911 call comes in, but it could be off for various reasons. The dispatch log for the accident showed an “initiate” time of 6:17 p.m. and 38 seconds.
{¶ 34} In short, the record supports findings that the 911 call was placed at 6:17:38 p.m., immediately after the accident, and that the blood was drawn at 9:17 p.m., exactly three hours later. Based on the evidence, the trial court found that, “though obviously it is by the thinnest of margins, the blood was drawn within the required three hours, and therefore the timing of the blood draw does not preclude its admissibility.” We find no fault with that conclusion.
{¶ 35} Hollowell‘s assignment of error is overruled.
III
{¶ 36} The trial court‘s judgment will be affirmed.
Copies mailed to:
Johnna M. Shia
Kathryn L. Bowling
Hon. Michael L. Tucker