767 N.E.2d 739 | Ohio Ct. App. | 2001
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The facts that are relevant to the issue raised on appeal are as follows. At 2:03 a.m. on October 2, 1998, Allen County Sheriff Deputy Brad Baty observed Paul D. Meyers, Appellant, drive his motor vehicle into the path of another motor *568 vehicle at the intersection of Roush Road and State Route 81 in Allen County, Ohio. Deputy Baty summoned an emergency medical service ("EMS") provider to the scene. Myers was transported by the EMS to the emergency room of St. Rita's Medical Center, Lima, Ohio, for treatment and diagnosis. Deputy Baty remained at the scene of the accident to complete his investigation before continuing on to St. Rita's between 2:33 and 2:48 a.m.
While at St. Rita's, Myers became combative and eventually was physically restrained by being strapped down to a gurney while wearing a neck brace. At 2:50 a.m. Myers' blood was withdrawn by the hospital for medical treatment and diagnostic purposes. Myers asserts that he requested an attorney before the procedure and denied consent to the blood withdrawal, citing religious reasons. Hospital records indicate that Myers consented to the blood test but denied treatment. Conflicting testimony was submitted as to the use of an alcohol based swab by the hospital to cleanse and prepare Myers' arm for the blood draw and Deputy Baty's assistance in the restraint of Appellant and presence during the hospital's blood test.
When Deputy Baty was permitted access to Myers he advised Myers that he was being cited for operating a motor vehicle while being under the influence of alcohol in violation of R.C.
On February 1, 1999, Appellant moved to suppress the results of the blood test, which was heard May 17, 1999. On February 23, 2000, the trial court overruled the motion. Appellant subsequently withdrew his not guilty plea and entered a plea of no contest to the R.C
Appellant presents the following three assignments of error.
The Trial Court committed error prejudicial to the Defendant-Appellant in finding that the test results of the Defendant's blood should not have been *569 suppressed since the blood sample was not drawn or tested in accordance with provisions of the Director of the Department of Health of the State of Ohio.
In his first assignment of error, Appellant contends that that the State failed to show that the blood sample was withdrawn in substantial compliance with standards promulgated by the Director of the Ohio Department of Health. Appellant therefore concludes that the evidence was inadmissible and should have been suppressed.
In a hearing on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and to evaluate the credibility of witnesses.1 When reviewing a trial court's ruling on a motion to suppress, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence.2 An appellate court must independently determine, without deferring to the trial court's conclusions, whether, as a matter of law, the facts meet the applicable standard.3
Generally, in order for the results of an alcohol test to be admitted at trial, the prosecution must satisfy certain foundational requirements by showing the following: (1) the bodily substance was withdrawn within two hours of the alleged violation; (2) methods approved by the Director of the Ohio Department of Health ("ODH") guided the analysis; and (3) a qualified individual conducted the analysis.4 However, the State, herein, has challenged the application of these foundational requirements where the alcohol test was conducted independently by a hospital for treatment and diagnostic purposes. The State argues that R.C.
Nothing in R.C. sections
In any criminal prosecution * * * for a violation of this section * * * the court may admit evidence on the concentration of alcohol * * * in the *570 defendant's blood, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance withdrawn within two hours of the time of the alleged violation.
When a person submits to a blood test at the request of a police officer under section
4511.191 of the Revised Code, only a physician, a registered nurse, or a qualified technician or chemist shall withdrawal blood for the purpose of determining its alcohol, drug, or alcohol and drug content. This limitation does not apply to the taking of breath or urine specimens. * * *Such bodily substance shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director of health pursuant to section
3701.143 of the Revised Code.
Further, R.C.
For purposes of section
4511.19 of the Revised Code, the director of health shall determine, or cause to be determined, techniques or methods for chemically analyzing a person's blood, urine, breath, or other bodily substance in order to ascertain the amount of alcohol, a drug of abuse, or alcohol and a drug of abuse in the person's blood, urine, breath, or other bodily substance. The director shall approve satisfactory techniques or methods, ascertain the qualifications of individuals to conduct such analyses, and issue permits to qualified persons authorizing them to perform such analyses. Such permits shall be subject to termination or revocation at the discretion of the director.
The Ohio Supreme Court has emphasized that "[i]t is well established that in a charge of violating R.C.
In our view, the language of R.C.
4511.19 (D) is clear, unmistakable and above all, mandatory. * * * While other evidence of drug use may be admitted in a prosecution brought under R.C.4511.19 , it is clear that the General *571 Assembly has foreclosed the use of chemical drug analysis of bodily substances, unless and until the Director of Health approves such a method.
Therefore, we hold that absent approval of methods by the Director of Health pertaining to the testing of bodily substances for drugs, a chemical analysis purporting to indicate the presence of drugs in an accused is inadmissible in a prosecution brought pursuant to R.C.
The Ripple court unequivocally indicated that the Revised Code requires the promulgation of standards by the Director of Health, and makes compliance with those standards a condition precedent for the admission into evidence of drug or alcohol testing conducted for the purposes of establishing intoxication in prosecutions for driving under the influence.8 Furthermore, our research indicates that, without significant discussion, courts have generally required that independent bodily substance tests comply with the ODH mandates and other R.C.
In general, when faced with a challenge to the admissibility of a blood test on the grounds the state failed to comply with its regulations, the state must show substantial compliance, rather than strict compliance, with ODH regulations.10 On a pretrial motion to suppress the results of a blood alcohol test, the state has the burden of proving substantial compliance with the ODH regulations.11 The prosecution bears this burden, however, only to the extent that the defendant takes issue with the legality of the test.12 Absent a showing of prejudice to a defendant, the results of a blood alcohol test administered in *572
substantial compliance with Ohio Administrative Code regulations are admissible in a prosecution under R.C.
In the instant case, Appellant asserts that the State failed to show substantial compliance with Ohio Adm. Code
(A) All samples shall be collected in accordance with division (D) of section
4511.19 or division (B) of section1547.11 of the Revised Code, as applicable.(B) When collecting a blood sample, an aqueous solution of a non-volatile antiseptic shall be use on the skin. No alcohols shall be used as a skin antiseptic.
* * *
Appellant contends that the hospital used an alcohol-based swab to prep his arm for the blood draw in violation of subsection (B), negating any potential finding of substantial compliance. Appellant conceded through stipulation that the hospital literally complied with the remaining requirements of the regulations.
At the suppression hearing the State submitted a stipulated copy of the hospital's general procedure manual requiring the use of non-alcohol swabs for the cleansing of skin in all blood draws. Hospital records were introduced indicating that Myers consented to the blood test but denied treatment. In addition, the State called Christine Conley, an assisting nurse on the evening in question, to testify as to the blood draw procedures employed upon the Appellant. Nurse Conley testified that, although she could not entirely identify the Appellant from the circumstances of her limited contact with him, she had cleansed Appellant's arm in preparation for the blood withdrawal and that she always used alcohol-free iodine capsules. Nurse Conley also explained the use and presence of alcohol swabs in the emergency room, indicating that the such swabs were generally used only for cleaning I.V. tubing cords used for administering medication and could have been lying around from the treatment of previous patients or from EMS personnel. Though Appellant gave conflicting testimony, the trial court found that his recollection of the evening's events and allegations were simply not credible. Witness credibility is a matter reserved to and well within the trial court's discretion.
Upon review of the entire record, we find that there was sufficient competent and credible evidence before the trial court to demonstrate substantial compliance with the ODH regulations.
Accordingly, Appellant's first assignment of error is overruled. *573
The Trial Court committed error prejudicial to the Defendant by holding that the Defendant's blood sample and test results should not have been suppressed due to the fact that the Defendant was not allowed access to or to consult with an attorney.
In his second assignment of error, Appellant asserts that his constitutional rights were violated when the hospital administered the blood test without providing access to or allowing the presence of counsel. Appellant again concludes that the evidence was inadmissible and should have been suppressed.
"The [
The Supreme Court of the United States has ruled that if a suspect is under custodial interrogation, that is undergoing "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way * * *,"18 and the suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning."19 Detention and questioning by a private individual or entity does not amount to state custody or *574
interrogation implicating either the
Other than Appellant's assertion that the officer assisted in restraining the patient, there is no indication that Appellant was either in custody or subject to interrogation by the investigating officer. Conversely, the officer's testimony indicated that the Appellant had already been secured in restraints by the hospital staff when he arrived and that the officer did not arrest, request a blood test from, or have access to the Appellant until after the hospital's blood test had been administered. Essentially, this amounts to a credibility determination primarily reserved to and well within the trial court's discretion.
We find that there is sufficient evidence that Appellant was under the sole care and supervision of the hospital at the time the blood test was administered. Moreover, as discussed in Appellant's third assignment of error, the record does not support the contention that the conduct of either the EMS or the hospital could be attributed to the State. Therefore, consideration of the factual evidence reveals a competent, credible basis for the trial court's determination. Without the prerequisite custody and interrogation, Appellant's
Accordingly, Appellant's second assignment of error is overruled.
The Trial Court committed error prejudicial to the Defendant by holding that the use of the blood sample and tests of that sample were admissible as evidence against the Defendant where the blood sample was taken without the consent of the Defendant.
In his third assignment of error, Appellant argues that the trial court erred in permitting the introduction of a hospital administered blood alcohol test allegedly taken without his consent. The blood test was requested and obtained by the State pursuant to R.C.
Appellant essentially asserts that his
In support of his proposition, Appellant cites the factually analogous case of City of North Olmstead v. Gareau.20 However, Gareau relied upon the *575
physician-patient privilege and the Ohio Supreme Court's holding in State v. Smorgala,21 which applied the previous version of R.C.
Appellant further cites Leach v. Shapiro24 for the proposition that he had an unqualified right to refuse treatment by St. Rita's staff, including the drawing of blood for any reason. However, Leach is factually distinguishable and inapplicable to our
The
The threshold issue is whether the conduct of the hospital constituted state action. Essentially, Appellant sets forth two arguments for state action. First, Appellant contends that R.C.
There is no bright line test for determining whether the conduct of a private entity constitutes state action.29 Instead, the United States Supreme Court has applied a variety of state action tests and cautioned courts to scrupulously examine the facts and circumstances of each individual case.30
The "sovereign-function" test focuses on whether the state delegated to the private entity a power or prerogative "traditionally exclusively reserved to the state."31 "[O]nly those undertakings that are uniquely sovereign in character qualify as traditional and exclusive state functions."32 The mere fact that "a private entity performs a function which serves the public does not make its acts state action."33
The "compulsion" test looks to whether the state exercised such coercive power over or provided such significant encouragement to the private actor, either overtly or covertly, that the private actor's decisions must be deemed to be that of the state.34 Mere acquiescence to or approval of the initiatives of a private actor is insufficient to attribute the actor's conduct to the state.35 "The state must use its power over the private actor to control or direct the private actor's conduct."36 *577
Under the "symbiotic relationship," or "nexus," test, a private entity's conduct constitutes state action when "there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the latter may be fairly treated as that of the state itself."37 A symbiotic relationship exists where the state "affirmatively support[s] and be[comes] directly involved in the specific conduct which is being challenged."38 However, "[t]he mere fact that a business is subject to regulation does not by itself convert its action into that of the state for purposes of the
R.C.
(B) * * *
The testimonial privilege [physician/patient] under this division does not apply, and a physician or dentist may testify or may be compelled to testify in any of the following circumstances:
* * *
(b) In any criminal action concerning any test or the results of any test that determines the presence or concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in the patient's blood, breath, urine, or other bodily substance at any time relevant to the criminal offense in question.
The statute further states that, upon request, the "provider, except to the extent specifically prohibited by any law of this state or of the United States, shall supply to the officer a copy of any of the requested records the provider possesses."42 The clear intent of the legislature was to abrogate the physician-patient privilege and provide the state access to blood-alcohol tests in criminal cases. *578
Examining the statute in the context of the enumerated state action tests, it is apparent that blood testing in the course of independent medical treatment and diagnostic care is not a traditionally exclusive state function that has been delegated to health care providers. There is no evidence of ownership of or a symbiotic relationship or nexus between the state and private actors: the state does not "affirmatively support" and is not directly involved in the specific conduct that is being challenged. Moreover, the statute does not penalize the hospital, encourage testing, or direct the manner in which tests are conducted so as to control the hospital's conduct. R.C.
Turning to Deputy Baty's conduct in the present case, the record does not support Appellant's contention that the hospital was acting with the officer's assistance or at the officer's request. Rather, as discussed in Appellant's second assignment of error, the record shows that the test was performed by hospital personnel for treatment and diagnostic purposes prior to the officer's arrival and Appellant's arrest. Therefore, regardless of whether Appellant refused to consent to the test, the hospital's blood test did not constitute state action necessary to implicate
Having found no error prejudicial to the Appellant herein, in the particulars assigned and argued, the judgment of the trial court is hereby affirmed.
SHAW and BRYANT, JJ., concur.
