2008 Ohio 1134 | Ohio Ct. App. | 2008
Lead Opinion
{¶ 2} At 2:47 p.m., on August 13, 2006, Price was involved in an automobile accident in which the SUV he was driving struck a motorcycle driven by Raymond Long. Long was killed instantly; his girlfriend, Patricia Morgan, suffered extensive and permanent injuries; Price himself was also severely injured.
{¶ 3} Trooper James Smith of the Ohio State Highway Patrol, who was working the 3:00 to 11:00 p.m. shift that day, was en route from his home to the Chardon Patrol Post when he was dispatched to the accident scene. Upon arrival, Smith was met by Sergeant Biskup of the State Highway Patrol, who had also been called to the scene. Trooper Smith observed Price sitting on a guardrail where emergency personnel were attending to his injuries. While questioning Price prior to his transport to Geauga Hospital, Trooper Smith began to suspect that Price might be intoxicated, due to his unresponsiveness, his glassy, bloodshot eyes, and slurred speech. During the course of the accident investigation, it was discovered that Price had three bottles of vodka in his vehicle. Based upon these findings, Trooper Smith and Sergeant Biskup determined that Price should be tested for intoxication.
{¶ 4} Trooper Smith followed the rescue vehicle carrying Price to Geauga Hospital, stopping at his patrol post briefly to pick up two blood sampling kits, since his patrol vehicle was only carrying one at the time and State Highway Patrol regulations required each vehicle to be equipped with two kits per shift. Smith arrived at the hospital at approximately 3:29 p.m., at which time he informed Price he was under arrest, and read Price his rights, as outlined in Ohio BMV form 2255, which was *3 required procedure prior to requesting a blood specimen. After having acknowledged his rights, Price consented to having blood drawn. At approximately 3:35 p.m., Nurse Roberta Hammonds drew a sample of Price's blood using the State Highway Patrol's standard specimen kit.
{¶ 5} Trooper Smith subsequently took custody of the sample and returned to the accident scene to investigate further. During this time, the sample remained in his patrol vehicle. According to Smith's testimony, the sample remained in his custody until he was finally able to mail it to the Ohio State Patrol Crime Lab at approximately 10:00 p.m., on August 13, 2006. In contrast, the property control form filled out and mailed by Smith along with Price's blood sample indicated that the time of the mailing, which is presumed to be when a transfer in the chain of custody occurs, was listed as 3:50 p.m., on that date. The specimen arrived at the crime lab on August 21, 2006, eight days later. Criminalist Jeffrey Turnau tested the sample on that date, and determined that Price's blood alcohol level was .244.
{¶ 6} On September 22, 2006, the Geauga County Grand Jury returned a six count indictment against Price charging him as follows: Count One, Aggravated Vehicular Homicide, a second degree felony in violation of R.C.
{¶ 7} On September 25, 2006, Price waived his right to a separate arraignment and entered a plea of "not guilty" to the charges.
{¶ 8} On November 21, 2006, Price filed a Motion to Suppress the results of his blood alcohol test. The state opposed, and, on January 24, 2007, a hearing was held on Price's motion. On January 31, the trial court filed a judgment entry denying Price's Motion to Suppress.
{¶ 9} On February 20, 2007, Price entered into a written plea agreement with the state, in which he agreed to enter pleas of "no contest" to Counts One, Two, and Four of the indictment.
{¶ 10} On April 16, 2007, the trial court held a sentencing hearing, in which it sentenced Price to six years imprisonment for Aggravated Vehicular Homicide and three years imprisonment for Aggravated Vehicular Assault, to be served consecutively. The trial court further ordered Price to serve one hundred days imprisonment for OVI, to be served concurrently with the other sentences. Additionally, the trial court ordered Price to pay restitution in the amount of $9, 000; imposed fines totaling $23, 500; and ordered Price to pay court costs.
{¶ 11} It is from this judgment that Price timely appeals, assigning the following as error for our review:
{¶ 12} "[1.] The trial court erred in overruling appellant's Motion to Suppress the results of appellant's blood alcohol test where the evidence failed to establish substantial compliance with the rules established by the Ohio Department of Health. *5
{¶ 13} "[2.] The trial court erred in imposing consecutive sentences and imposed a sentence that is contrary to the consistency and proportionality guidelines of R.C.
{¶ 14} "[3.] The trial court erred in sentencing appellant to a harsher sentence for exercising his Fifth Amendment right against self[-]incrimination.
{¶ 15} "[4.] The trial court erred to the prejudice of the defendant-appellant when it ordered fines and costs without consideration of his ability to pay financial sanctions."
{¶ 16} In his first assignment of error, Price asserts that the trial court erred in failing to suppress the admission of his blood test evidence, since the state failed to make a showing that it substantially complied with various rules promulgated by the Director of Health with regard to the testing of blood for alcohol content.
{¶ 17} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside,
{¶ 18} In any prosecution premised upon a violation of R.C.
{¶ 19} Price first asserts that the results of his blood tests were not admissible and should have been suppressed, since the state failed to prove it complied with Ohio Adm. Code
{¶ 20} At the hearing on Price's motion to suppress, Criminalist Jeff Turnau testified on behalf of the state. Turnau testified that he performed the test on Price's blood sample using a Perkin-Elmer Model 8500 gas chromatograph. Despite Price's *7 assertion that the onsite manual did not comply because it referenced the Perkin-Elmer Model 8410 gas chromatograph, Turnau testified the same manual is used for all Perkin-Elmer 8000 series machines, and is kept on a shelf near the bench where he performs the blood tests. Based upon this testimony, the state provided sufficient evidence of substantial compliance with ODH regulations. Price's first argument lacks merit.
{¶ 21} Price next challenges whether the state complied with the provisions of Ohio Adm. Code
{¶ 22} At the hearing, Turnau was able to testify about instrument and calibration checks and records associated with each, he was unable to testify from personal knowledge with regard to maintenance records. "The failure of the state to adduce any evidence as to compliance with the recordkeeping requirement" as mandated by the Director of Health, may be grounds for granting a motion to suppress. State v. Lipsky, 1st Dist. No. C-010473, 2002-Ohio-1141, 2002 Ohio App. LEXIS 1159, at *5. However, it is well-settled that "[a] motion to suppress must state its legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided." State v.Nicholson, 12th Dist. No. CA2003-10-106,
{¶ 23} In the instant case, a review of Price's motion to suppress reveals that he not only failed to raise the issue of a failure to comply with Ohio Adm. Code
{¶ 24} Price next challenges whether the state substantially complied with Ohio Adm. Code
{¶ 25} With regard to the question of whether an anticoagulant or chemical preservative was present in the vacuum tube containing Price's blood sample, the state elicited testimony from Turnau, who stated that the tube containing Price's sample had a grey cap, which indicates the tube in question contained both potassium oxalate, an anticoagulant, and sodium fluoride, a preservative. Both Douglas Rohde, Senior Forensic Chemist for the Lake County Crime Lab, who testified on behalf of the state, and Robert Williams, Price's own expert, corroborated Turnau's testimony in this regard. Williams further testified that it would not be routine for a laboratory to test for the presence of these substances if the top of the vial in question was grey. Consequently, Price's argument that the state did not substantially comply with these requirements must fail.
{¶ 26} With regard to the second issue of non-refrigeration, we note that while non-refrigeration for the six hour period of time between when the sample was taken from Price and the time it was actually mailed does raise some concerns, the Fifth Appellate District has noted, "the issue is the reliability of the test results not the performance requirements of the Ohio Administrative Code." State v. Brush, 5th Dist. No. 04CA92,
{¶ 27} Nor do we conclude that an eight-day period required for the mailing of the specimen in this case was unreasonable. Turnau testified that such delays are not uncommon, and may range as high as 10 to 12 days. Furthermore, while in the U.S. mail, the specimen is clearly "in transit," within the contemplation of Ohio Admin. Code
{¶ 28} For the foregoing reasons, the trial court did not err in denying Price's motion to suppress. His first assignment of error is, therefore, without merit.
{¶ 29} In his second assignment of error, Price alleges that the trial court erred when imposing his sentence by failing to follow R.C.
{¶ 30} Pursuant to State v. Foster,
{¶ 31} The overriding purposes of felony sentencing in Ohio "are to protect the public from future crime by the offender * * * and to punish the offender." R.C.
{¶ 32} In the case sub judice, the trial court sentenced Price to six years imprisonment for Aggravated Vehicular Homicide and three years imprisonment for Aggravated Vehicular Assault, to be served consecutively. Both of these sentences fall *12
within the mid-range of sentences authorized by R.C.
{¶ 33} This court has stated that, although "a trial court is required to engage in the analysis set forth by R.C.
{¶ 34} Price fails to meet this burden. Our review of the sentencing transcript shows that the trial court explicitly considered the relevant statutory factors before imposing sentence, including the purposes and principles of felony sentencing. While this may have been the first accident caused by Price while driving under the influence, the record shows that he had three previous convictions for that offense. Long was *13 killed; Morgan was permanently injured. Morgan's son, Colin Stinson, testified to his deep affection for Long, the renewed joy he had brought to his mother's life, and the grief his loss has caused her family. Morgan testified to her own sense of loss, and the damage Long's death had caused to her children.
{¶ 35} There is also evidence that the trial court appropriately considered the seriousness and recidivism factors of R.C.
{¶ 36} R.C.
{¶ 37} In sum, there is plentiful evidence in the record indicating the trial court considered the appropriate factors prior to imposing greater than the minimum *14 sentences, and ordering that such sentences be served consecutively. Price's second assignment of error is without merit.
{¶ 38} In his third assignment of error, Price claims the trial court deprived him of his Fifth Amendment right against self-incrimination during sentencing, by referencing his written statement to the Adult Parole Authority as a basis for its finding that he refused to acknowledge his drinking problem and lacked remorse for his actions. This alleged statement to his probation officer suggested that his erratic driving was caused by being hit in the head by a golf ball and lack of sleep, rather than intoxication.
{¶ 39} As an initial matter, we note that Price pled no contest to the charges. Pursuant to Crim.R. 11(B)(2), "[t]he plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment." In the case sub judice, Price pled no contest to Aggravated Vehicular Homicide, and Aggravated Vehicular Assault, both of which require the crime be "the proximate result of committing a violation of division (A) of section
{¶ 40} Price has failed to demonstrate how his alleged "refusal to admit he drank alcohol prior to the accident" resulted in a harsher sentence than he would have otherwise received. Pursuant to App.R. 9(B), it is an appellant's duty to include within the record any material pertinent to the errors assigned. State v. Fritz, 11th Dist. No. 2005-P-0094,
{¶ 41} Price's third assignment of error is without merit.
{¶ 42} In his fourth assignment of error, raised by means of a supplemental brief, Price asserts that the trial court erred by ordering him to pay fines totaling $23, 500.00 and costs, without considering his present and future ability to pay, as required by R.C.
{¶ 43} Although the trial court made no mention in the transcript of the sentencing hearing that it had considered Price's present and future ability to pay financial sanctions, it did state that it had considered the PSI report. The court also stated that it considered both the PSI report and Price's ability to pay in the judgment entry of sentence. This court has held that "the requirements of R.C.
{¶ 44} Price's fourth, supplemental assignment of error is without merit.
{¶ 45} For the foregoing reasons, the judgment of the Geauga County Court of Common Pleas is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, J., concurs
COLLEEN MARY OTOOLE, J., dissents with a Dissenting Opinion.
Dissenting Opinion
{¶ 46} I respectfully dissent regarding the majority's disposition of the first assignment of error. The motion to suppress should have been granted, due to the state's failure to introduce any maintenance records for the equipment used in testing Mr. Price's blood sample, as required by Ohio Admin. Code
{¶ 47} In overruling the assignment of error on this issue, the majority relies on case law obligating a defendant to state with specificity his or her objections in a motion to suppress. In this case, Mr. Price failed to raise the recordkeeping issue in his initial motion, but specifically raised it thereafter in his supplemental demand for discovery. Certainly, the state was aware of the issue, having failed to respond to the supplemental *17 request. The state attempted, at the suppression hearing, to introduce a letter on the subject from the director of the Ohio State Patrol Crime Lab.
{¶ 48} The majority contends Mr. Price should have moved to compel. Strictly speaking, true. But it is the state's burden to prove the elements of its case, particularly regarding substantial compliance with the Director of Health's rules regarding blood alcohol testing.Burnside, supra, at ¶ 24. Minor procedural errors by the defense should not relieve the state of this burden, when it seeks to imprison a man — particularly in situations such as that instant, where, due to the mandatory nature of the Director of Health's rules, the state shouldalways be prepared to show substantial compliance.
{¶ 49} Thus, I respectfully dissent. *1
