State v. Mayl

798 N.E.2d 1101 | Ohio Ct. App. | 2003

Lead Opinion

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

OPINION {¶ 1} Defendant, John Mayl, appeals from his conviction and sentence for Aggravated Vehicular Homicide, R.C. 2903.06(A)(1), which were entered on Mayl's plea of no contest after the trial court denied his Crim.R. 12(C)(3) motion to suppress evidence filed prior to trial.

{¶ 2} Defendant was arrested during the early morning hours of November 20, 2000, at Miami Valley Hospital, in Dayton. He was taken there after his vehicle struck and killed a construction worker who was working on improvements to Interstate Route 75 in downtown Dayton.

{¶ 3} A nurse at Miami Valley Hospital drew a sample of Mayl's blood for purposes of blood alcohol analysis as well as medical treatment. Subsequent analysis reported a blood-alcohol level of 0.207.

{¶ 4} The nurse who drew Defendant's blood testified that he smelled strongly of alcohol. So did a Dayton police officer who was at the hospital when Mayl arrived. Mayl told police that he'd consumed a couple of beers while bowling.

{¶ 5} Mayl was indicted on a charge of Aggravated Vehicular Homicide, R.C. 2903.06(A)(1). The indictment specified that he caused the victim's death "as a proximate result of committing a violation of division (A) of Section 4511.19 of the Revised Code or a substantially equivalent municipal ordinance."

{¶ 6} Defendant filed a motion to suppress evidence of this blood/alcohol test, any statements he made, and all other evidence that was illegally seized. Defendant argued in his memorandum, inter alia, that his blood alcohol tests were "not sanctioned by the requirements of Ohio Revised Code § 4511.19" and that "[t]he provisions of the Ohio Administrative Code were violated, as they pertain to standards of observations, qualifications of personnel, and other provisions of the Ohio Administrative Code as they relate to the taking and keeping of blood samples."

{¶ 7} The trial court heard evidence on Defendant's motion to suppress. With respect to evidence of his blood alcohol tests, and citing the decision of this court in State v. Davis (1983), 13 Ohio App.3d 265, the court held that the testing requirements of R.C. 4511.19(D)(1) and O.A.C. 3701-53-05 are not applicable to prosecutions for Aggravated Vehicular Homicide. Accordingly, the court overruled Mayl's motion as to those specific grounds for suppression of blood/alcohol test results, and further overruled the motion in all other respects.

{¶ 8} Mayl changed his previous not guilty plea to a plea of no contest. The trial court accepted that plea and entered a judgment of conviction for the offense charged. Mayl was sentenced to a four year term of incarceration. He filed a timely notice of appeal.

First Assignment Of Error {¶ 9} "The Trial Court Erred In Overruling Appellant's Motion To Suppress Evidence."

{¶ 10} R.C. 4511.19(A) and (B) prohibit driving while under the influence of alcohol or drugs or with a prohibited level of alcohol in certain bodily substances. Subdivision (B) pertains to violators who are less than twenty-one years of age. Subdivision (A) pertains to adults. It provides in relevant part:

{¶ 11} "(A) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if any of the following apply:

{¶ 12} "(1) The person is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse;

{¶ 13} "(2) The person has a concentration of ten-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight of alcohol in the person's blood.

{¶ 14} "* * *

{¶ 15} "(5) The person has a concentration of seventeen-hundredths of one per cent or more by weight of alcohol in the person's blood.

{¶ 16} "* * *

{¶ 17} "(D)(1) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense, the court may admit evidence on the concentration of alcohol, drugs of abuse, or a combination of them in the defendant's whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within two hours of the time of the alleged violation.

{¶ 18} "* * *

{¶ 19} "The bodily substance withdrawn shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code."

{¶ 20} The director of the department of health has adopted and published regulations governing the testing and analysis of blood, breath, or urine to determine a subject's blood/alcohol level for purposes of an alleged R.C. 4511.19(A) violation. They appear at Ohio Adm. Code 3701-53-01, et seq.

{¶ 21} A motion to suppress evidence filed prior to trial pursuant to Crim.R. 12(C)(3) is the only way in which the admissibility of blood alcohol test results in relation to the requirements imposed by R.C.4511.19(D)(1) and Ohio Adm. Code Chapter 3701-53 may be challenged. Statev. French (1995), 72 Ohio St.3d 446. Crim.R. 47 provides that the groundsfor the motion shall be stated "with particularity." Unspecified generalallegations of non-compliance with the overall rules and regulations areinsufficient to raise the issue of testing non-compliance, because thestate and the trial court must "be given notice of the specific legal andfactual grounds upon which the validity of the search and seizure ischallenged." Dayton v. Dabney (1994), 99 Ohio St.3d 32, 37, quoting Xeniav. Wallace (1988), 37 Ohio St.3d 216. {¶ 22} The grounds for suppression set out in the memorandum insupport of Mayl's motion might be challenged for failing to satisfy theparticularity requirements of Crim.R. 47. However, the State made noobjection for that reason relevant to the trial court's proceedings onthe motion, and instead offered extensive evidence concerning theprocedures that were followed in drawing and testing Mayl's blood. Anyerror the State might now argue with respect to the suppression motion'slack of particularity is, therefore, waived. {¶ 23} The foregoing requirements of R.C 4511.19(A) and (D)(1) arerelevant here only to the extent that they are implicated by the R.C.2903.06(A)(1) violation with which Mayl was charged. That section, whichdefines and prohibits Aggravated Vehicular Homicide, states: {¶ 24} "No person, while operating or participating in theoperation of a motor vehicle, motorcycle, snowmobile, locomotive,watercraft, or aircraft, shall cause the death of another or the unlawfultermination of another's pregnancy in any of the following ways: {¶ 25} "As the proximate result of committing a violation ofdivision (A) of section 4511.19 of the Revised Code or of a substantiallyequivalent municipal ordinance." {¶ 26} R.C. 2903.06(A)(1) is a relatively new provision. It becameeffective on March 23, 2000. Prior to that, Aggravated VehicularHomicide, as R.C. 2903.06(A) defined it, consisted of causing the deathof another while "recklessly" operating a motor vehicle. In Davis, a 1982case on which the trial court relied to overrule Defendant Mayl'smotion, a defendant who was charged on that cause moved to suppressevidence of his blood alcohol test results in a prosecution forAggravated Vehicular Homicide. We affirmed the trial court's denial ofthe motion, holding that the admissibility requirements that R.C.4511.19(D) imposes "are necessary for the state to be given the benefitof a presumption in its favor as against the defendant in prosecutionsfor violations of R.C. 4511.19," and are therefore not applicable toAggravated Vehicular Homicide violations in which "the defects inconducting the blood test, if any, go the weight of the evidence and notits admissibility." Id., at p. 267. {¶ 27} The State urges us to find that Davis remains good law andthat the trial court was correct when it relied on Davis to denyDefendant's motion to suppress evidence of his blood/alcohol tests. Weagree that Davis is still good law, at least with respect to the issuesof law it involves. However, we find that the trial court erred when itrelied on Davis as it did to deny the motion to suppress. {¶ 28} When, subsequent to Davis, the General Assembly amendedR.C. 2903.06(A)(1) to specify that conduct which constitutes a violationof R.C. 4511.19(A) and proximately results in the victim's death in theprohibited circumstances is one of the several grounds constituting anAggravated Vehicular Homicide offense, the General Assembly created a newoffense to which the rule of Davis has no direct application. Even so,the rationale we employed in Davis yet applies, albeit to produce adifferent outcome. {¶ 29} We said in Davis that the testing requirements which R.C.4511.19(D)(1) and the relevant sections of the Administrative Code imposeare a foundation for the benefit of the presumption obtained by the statein prosecutions for R.C. 4511.19(A) violations when test results areadmitted in evidence. That presumption is so strong that it convertsR.C. 4511.19(A)(2) and (5) violations which involve prohibitedblood/alcohol content into strict liability offenses. Defiance v. Kretz(1991), 60 Ohio St.3d 1. For that reason, "[t]he accuracy of the testresults is a critical issue in determining a defendant's guilt orinnocence." Id. at p. 3. {¶ 30} By engrafting a violation of R.C. 4511.19(A) onto R.C.2903.06(A) as one of the grounds on which an Aggravated VehicularHomicide violation may be found, the General Assembly created a violationof R.C. 2903.06(A) for which a finding of guilt depends on the samepresumption when the alcohol content of a defendant's blood, bloodplasma, breath, urine or other bodily substance is the basis for theviolation alleged. It would be counterintuitive to hold that thestatutorily-based requirements for admissibility of evidence used toprove a violation of R.C. 4511.19(A) that the General Assembly enacted asa necessary predicate that presumption does not likewise apply to aviolation of R.C. 2903.06(A)(1) which, because it requires proof of aviolation of R.C. 4511.19(A), confers on the state the benefit of thevery same presumption when test result evidence is admitted to prove theunderlying violation. {¶ 31} In his concurring opinion, Judge Wolff opines that the baragainst admissibility of test result evidence that R.C. 4511.19(D)(1)sets up ought not apply when the state relies on a more general R.C.4511.19(A)(1) "under the influence" violation to prove an R.C.2903.06(A)(1) Aggravated Vehicular Homicide offense, as opposed to theR.C. 4511.19(A)(2) or (A)(5) per se violations. That presents severalconcerns, in my view. {¶ 32} First, R.C. 4511.19(D)(1) is concerned with the reliabilityof test result evidence. It is not concerned with and makes nodistinction with respect to the particular subsection of R.C. 4511.19(A)to which that evidence might relate as proof. {¶ 33} Second, the R.C. 4511.19(D)(1) bar applies to "any criminalprosecution . . . for a violation of division (A) . . . of this section."On its face, that extends to R.C. 4511.19(A)(1) violations as well asthose defined in subsections (A)(2) and (A)(5). {¶ 34} Third, if test result evidence is admitted to prove anR.C. 4511.19(A)(1) violation, the jury cannot weigh its significancewithout reference to the quantitative standards in R.C. 4511.19(A)(2) or(A)(5). Absent an instruction on those matters, which necessarily wouldincorporate the prohibitions involved in the charge against theaccused, the jury would be required to speculate about the meaning andsignificance of test result evidence. {¶ 35} We are not required to resolve those issues, however. Maylwas required to file a Crim.R. 12(C)(3) motion to suppress to avoidwaiving his right to object to the admissibility of the test resultevidence at a later time. State v. French. Like the indictment, the trialcourt's order overruling Mayl's motion made no distinction between thesubsections of R.C. 4511.19(A) that might apply. By allowing the State anoption to rely on any of them, the effect of the court's order permits theuse of all of them, including the R.C. 4511.19(A)(2) and (A)(5) per seviolations. In consequence of that, the State has the burden to show thatthe test result evidence does not suffer from the defects alleged inMayl's motion. State v. Shindler, 70 Ohio St.3d 54, 1994-Ohio-452. {¶ 36} One might argue that R.C. 4511.19(D)(1), because it appliesby its terms to "any criminal prosecution or juvenile court proceedingfor a violation of division (A) or (B) of this section," does not applyin a proceeding for a violation of R.C. 2903.06, as it is a differentsection. As the phrase appears in R.C 4511.19(D)(1), "for a violation ofthis section" is a prepositional phrase, in which the object of thepreposition for is "a violation of this section," that is, R.C. 4511.19(A)or (B). Aggravated Vehicular Homicide, as it is defined by R.C.2903.06(A)(1), and with which Defendant Mayl was charged, requires proofthat the death involved was a "proximate result of committing a violationof division (A) of section 4511.19 of the Revised Code." The identical"violation" is involved in both instances, and in both the trier of factmust find that the defendant committed an R.C 4511.19 violation. There isno logical basis on which to find that blood/alcohol testing requirementsthat govern admissibility of test results in a prosecution for aviolation of R.C. 4511.19(A) do not likewise apply in a prosecution foran R.C. 2903.06(A)(1) offense which requires proof of a violation ofR.C. 4511.19(A). {¶ 37} A holding that the blood/alcohol testing requirements applyto R.C. 4511.19(A) violations but not to R.C. 2903.06(A)(1) violationswould produce an anomaly which has no support in texts of thosesections. Had the General Assembly intended that result, it wouldpresumably have said so. It didn't, and positive inferences cannot resultfrom legislative silence. Any dispute in that regard was resolved by theGeneral Assembly when it enacted R.C. 2901.04(A), which states that"sections of the Revised Code defining offenses or penalties shall beconstrued strictly against the state, and liberally in favor of theaccused." That directive supports our finding that the testingrequirements of R.C 4511.19(D)(1) and O.A.C. 3701-53-01, et. seq. applyto prosecutions for violations of R.C. 2903.06(A)(1) with respect to theadmissibility of evidence of the results of tests of a defendant'sblood, blood serum or plasma, breath, urine or other bodily substancewhen that evidence is offered to show alcohol level or content, and areproperly challenged by a motion to suppress evidence. {¶ 38} Two final matters must be addressed. First, the Stateargues that Mayl has waived his right to contend that Davis doesn't applybecause he failed to distinguish Davis in the proceedings before thetrial court. Whether he did or not, Mayl raised the issue of theadmissibility of his blood/alcohol test results in relation to R.C.2903.06(A)(1), R.C. 4511.19, and the Ohio Administrative Code, which wassufficient to put the State and the court on notice of the legal issueinvolved. Xenia v. Wallace. The particularity requirements of Crim.R. 47do not require a movant to distinguish judicial precedent potentiallyadverse to the grounds on which a motion is predicated. {¶ 39} Second, the State points out that in State v. Anderson(August 24, 2001), Delaware App. No. 00CA12039, which was decided afterR.C. 2903.06(A)(1) became effective, the appellate court cited and reliedon Davis to hold that the testing requirements that apply to R.C.4511.19(A) violations do not apply to R.C. 2903.06 Aggravated VehicularHomicide offenses. That is a correct reading of the court's decision, butunpersuasive. The offense in Anderson was committed before R.C. 2903.06became effective, so, necessarily, the prosecution and conviction wasunder the former version of that section that Davis construed, not those of R.C. 2903.06(A)(1) with which Defendant Mayl was charged.

{¶ 40} The first assignment of error is sustained.

Second Assignment Of Error {¶ 41} "The Trial Court Erred In Accepting Appellant's No ContestPlea Without First Informing Him That He Was Ineligible For CommunityControl Sanctions."

Third Assignment Of Error {¶ 42} "The Trial Court Erred In Sentencing Appellant To MoreThan The Minimum Sentence." {¶ 43} The error assigned in these contentions is rendered moot byour decision sustaining the first assignment of error. Therefore, perApp.R. 12(A)(1)(c), we decline to rule on the error assigned.

Conclusion {¶ 44} Having sustained Defendant-Appellant's first assignment oferror, we will reverse trial court's order denying his motion tosuppress, and the judgment from which this appeal was taken, and remandthe case for further proceedings. FAIN, P.J. concurs. WOLFF, J., concurs separately.

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Concurrence Opinion

{¶ 45} I agree that the judgment must be reversed together withthe order denying suppression. {¶ 46} The trial court denied suppression on the basis of Statev. Davis and did not reach the merits of the issue raised by the motionto suppress : whether Mayl's blood was analyzed in accordance with OhioDepartment of Health (ODH) regulations. {¶ 47} Mayl is entitled to have this issue resolved by the trialcourt because the State may very well intend to establish he violatedR.C. 4511.19(A) by establishing a per se violation, i.e. a violation ofsubsection (A)(2) or (A)(5). {¶ 48} Should the trial court conclude that the blood analysis wasnot ODH compliant, then the test result may not be used by the State toprove that Mayl violated R.C. 4511.19(A)(2) or (A)(5) by committing a perse violation. {¶ 49} I write separately to express my view that a determinationthat the blood analysis was not ODH compliant should not necessarilypreclude the admission of the test result in a prosecution based onsubsection (A)(1), i.e. that Mayl was driving under the influence ofalcohol. A subsection (A)(1) violation is not a per se violation. Newarkv. Lucas (1988), 40 Ohio St.3d 1, 3. {¶ 50} While the State's proof of a subsection (A)(1) violationmay not be as straight forward as its proof of a prohibitedconcentration, i.e. per se, violation with an ODH compliant test result,the State should also not be as severely restricted by ODH regulations inusing evidence of test results in subsection (A)(1) prosecutions. SeeState v. Rains (1999), 135 Ohio App.3d 547, 553, citing Newark v. Lucas,syllabus, para. 2. This is because the test result in a subsection (A)(1)prosecution is not as dispositive of whether a defendant violated R.C.4511.19(A) as it is likely to be in a per se, i.e., subsection (A)(2-7),prosecution.

{¶ 51} Newark v. Lucas held: {¶ 52} "In a criminal prosecution for violation of R.C.4511.19(A)(1), or of a municipal ordinance relating to operating a motorvehicle while under the influence of alcohol, a drug of abuse, or alcoholand a drug of abuse, the results of a properly administered bodilysubstances test presented with expert testimony may be admitted inevidence despite the fact that the bodily substance was withdrawn morethan two hours from the time of the alleged violation." {¶ 53} In my opinion, the same approach should be permissible asto a blood test result that is non ODH compliant for a reason or reasonsother than that the sample was not withdrawn within two hours. Just asthe supreme court has authorized the admission of an untimely test resultif presented with expert testimony, the trial court — in asubsection (A)(1) prosecution — should be able to admit a non ODHcompliant test result if presented with expert testimony. The defendantwould thereby be able to cross-examine the expert as to the significanceof any departure from ODH regulations in analyzing the bodily substance. {¶ 54} I must acknowledge that the Fifth District has held that anon ODH compliant test result is inadmissible in a subsection (A)(1)prosecution. State v. Klein (July 15, 1985), Stark App. No. CA 6617; 1985WL 8272. This also appears to be the view of Judge Painter. Painter, OhioDriving Under the Influence Law (West Group 2003 Ed.) p. 118. Finally,the only defect mentioned in State v. Davis was the failure of proof that the blood had been withdrawn within two hours of the accident.

{¶ 55} I agree with the majority opinion to the extent that Statev. Davis should not apply where the aggravated vehicular homicide chargeis based upon a per se violation of R.C. 4511.19(A). {¶ 56} The earlier version of R.C. 4511.19(B) which was applicablein Davis provided that a defendant would be presumed to have been under the influence of alcohol if a timely, ODH compliant blood test revealed blood alcohol content of .10 or more. Id., 267.

{¶ 57} That presumption was eliminated and was replaced by the per se violations March 16, 1983. See Newark v. Lucas, 103. Thus, the sameconcern for accuracy of test results — promoted by timely, ODHcompliant tests — is necessary for aggravated vehicular homicidecharges based on per se violations, as is necessary in prosecutions forper se violations themselves. {¶ 58} Where, as here, however, the charge may be based on R.C.4511.19(A)(1), Davis is still good law because the State is not requiredto prove that Mayl was driving with a prohibited concentration of alcoholin his blood — a per se violation — but, rather, that he wasdriving under the influence of alcohol. Such being the case, "defects inconducting the blood test, if any, go to the weight of the evidence andnot its admissibility" because "(d)riving under the influence may beproved other than by the statutory presumption." Davis, 267. Put in current parlance, a violation of R.C. 4511.19(A) may be proved by other than proof of a prohibited concentration of alcohol in the defendant's blood.

{¶ 59} The trial court accorded Davis a more sweeping effect than is warranted since the enactment of the per se offenses. The trial court must determine whether the blood analysis was ODH compliant by deciding the motion to suppress on the merits.