State v. MayState v. May
For Plaintiff-Appellee
CHARLES HOWLAND
PROSECUTING ATTORNEY
JOCELYN STEFANCIN
ASSISTANT PROSECUTOR
60 East High Street
Mt. Gilead, Ohio 43338
For Defendant-Appellant
ROBERT E. WILSON
WILSON, COULTER & KOCHHEISER
& CO., LPA
181 South Main Street
Marion, Ohio 43302
Wise, J.
{¶1} Appellant Timothy R. May appeals from his conviction, in the Morrow County Court of Common Pleas, for aggravated vehicular assault and OVI. The Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows
{¶2} On the afternoon of June 1, 2008, appellant was driving his Chevrolet pickup truck on County Road 20 in Morrow County. With him were his two young grandchildren. At some point, the truck left the roadway, struck a guardrail, and overturned into a creek.
{¶3} Several Good Samaritans happened by and helped appellant rescue the two children from the water. EMS personnel also responded, as well as Trooper Holloway of the Ohio State Highway Patrol. However, by the time Holloway arrived, appellant had already been transported to Morrow County Hospital. The trooper talked to witnesses at the scene for about a half-hour and then proceeded to the hospital.
{¶4} Trooper Holloway found appellant standing by the bed of one of his grandchildren in the emergency room. He observed appellant‘s condition and appearance, and asked to obtain a statement from appellant about the accident. Both before and after appellant wrote out his statement, the trooper told him he was “free to go.” The trooper also noticed an odor of alcoholic beverage on appellant and he proceeded to read him his Miranda rights. The trooper also asked appellant to perform field sobriety tests, but continued to tell appellant he was “free to go.” Appellant agreed to allow a horizontal gaze nystagmus (“HGN“) test, but would not agree to further allow field sobriety tests. The trooper then told appellant he was under arrest, but told him he would not be taken into custody at that time. The trooper also provided Form 2255 to
{¶5} In October 2008, the Morrow County Grand Jury indicted appellant on one count of aggravated vehicular assault (
{¶6} On February 3, 2009, appellant filed a motion to suppress the evidence obtained as a result of his interview by Trooper Holloway.
{¶7} The trial court conducted a hearing on March 10, 2009, and thereafter denied the motion to suppress.
{¶8} The matter proceeded to a plea hearing October 13, 2009. Appellant at that time entered pleas of no contest to aggravated vehicular assault and OVI, which the court accepted.
{¶9} At a hearing on December 16, 2009, after reviewing a presentence investigation, the trial court sentenced appellant to two years in prison on the aggravated vehicular assault count, plus a fine and a suspension of appellant‘s driver‘s license for five years. The court imposed no additional sentence for the OVI count.
{¶10} On February 8, 2010, appellant filed a notice of appeal.1 He herein raises the following sole Assignment of Error:
{¶11} “I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT‘S MOTION TO SUPPRESS THE BLOOD TEST RESULTS SINCE THE OFFICER NEVER ARRESTED DEFENDANT PRIOR TO ORDERING BLOOD DRAWN PURSUANT TO
I.
{¶12} In his sole Assignment of Error, appellant contends the trial court erred in overruling his motion to suppress the blood test results obtained at the hospital following the traffic stop. We disagree.
{¶13} There are three methods of challenging on appeal a trial court‘s ruling on a motion to suppress. First, an appellant may challenge the trial court‘s finding of fact. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this third type of claim, an appellate court must independently determine, without deference to the trial court‘s conclusion, whether the facts meet the appropriate legal standard in the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. As the United States Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, “... as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.”
{¶14} The
{¶15} The United States Supreme Court has recognized that the
{¶16}
{¶17} Appellant in the case sub judice essentially argues that the “implied consent to testing” provisions of
{¶18} The trial court in the case sub judice declined to suppress the blood draw on the basis that Trooper Holloway had the “intent to arrest” appellant and that there had been a “constructive seizure” of appellant. Judgment Entry at 4. The transcript of the suppression reveals that Holloway himself recalled that he had repeatedly told appellant at the emergency room that he was “free to go.” Ultimately, however, Holloway recalled the following interaction with appellant:
{¶20} “Q. And did he agree to do so?
{¶21} “A. Yes, ma‘am, he did.” Tr. at 53.
{¶22} In Ohio, the General Assembly has established the statutory prerequisite of an actual arrest for a warrantless blood draw in OVI cases. Although the trooper‘s complete colloquy with appellant at the hospital fell short of being unequivocal, we find the State‘s action in obtaining appellant‘s blood sample after the constructive arrest comported with
{¶23} We hold the trial court did not err in denying the motion to suppress under the facts and circumstances of this case.
{¶25} For the foregoing reasons, the judgment of the Court of Common Pleas, Morrow County, is affirmed.
By: Wise, J.
Edwards, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0902
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Morrow County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES