STATE OF OHIO, Plaintiff-Appellee, - vs - MICHELLE SCHUSTER, Defendant-Appellant.
CASE NO. CA2016-05-097
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
6/5/2017
[Cite as State v. Schuster, 2017-Ohio-4115.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2015-07-1098
Schreyer Thomas, LLP, H. Michele Thomas, 100 West Main Street, Eaton, Ohio 45320, for defendant-appellant
O P I N I O N
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Michelle Schuster, appeals a decision of the Butler County Court of Common Pleas denying her motion to suppress. For the reasons detailed below, we affirm the decision of the trial court.
{¶ 2} On April 22, 2015, electriсal work was being conducted near the intersection of Cox Road and Liberty Way in West Chester Township, Butler County, Ohio. At
{¶ 3} Appellant was indicted on one count of aggravated vehicular homicide in violation of
{¶ 4} Appellant pled not guilty to the charges. Appellant then moved to suppress, among other things, the blood-test results on the basis that the blood sample had not been taken voluntarily or in compliance with
{¶ 5} Officer Jeff Newman testified that at the time of the accident, he was working a
{¶ 6} Upon approaching the black car, Newman saw appellant, the driver, slumped over “with her head off to the side.” Newman attempted to talk to appellant, but she was incoherent and was fading “in and out of consciousness.” While trying to speаk with appellant, Newman noticed the smell of an alcoholic beverage coming from appellant‘s vehicle. Newman did not place appellant under arrest at this time.
{¶ 7} Officer Steven Seitzman testified that he arrived at the scene of the accident around 4:00 p.m. Upon his arrival, he was advised that appellant and the injured electrical workers had been transported to a nearby hospital. He was also advised that there was “an odor of an alcoholic beverage on the * * * at-fault driver.”
{¶ 8} When Seitzman first arrived at West Chester Hospital‘s emergency room, the first thing he heard was “screaming and yelling” coming from appellant‘s room. According to Seitzman, the noise coming from appellant was “just incoherent screaming just as – as loud as you can imagine.” Seitzman did not consider appellant‘s screaming and yelling to be speaking as “she wasn‘t speaking any sort of language [he] recognized.”
{¶ 9} After checking on the electrical workers injured in the accident, Seitzman entered appellant‘s room and was advised by a nurse that appellant had needle marks on her hand. After observing appellant for a brief period of time, Seitzman requested that another officer bring a urine and blood collection kit to the hospital. Seitzman testified he requested the kit “based on a few factors,” including “the air of alcohol [that] was described to [him] by
{¶ 10} Around 6:12 p.m., prior to appellant‘s blood being taken, Seitzman read appellant a BMV 2255 form, informing her of the consequences of refusing to submit to a blood test. Appellant was not placed under arrest at this time and she did not sign the form. Seitzman asked appellant if she wanted to comply with the blood test, and she responded with “incoherent yelling and screaming.” Believing that appellant was unable, or incapable, of refusing to give consent, Seitzman opened the blood collection kit and handed two collection tubes tо nurse Amanda Burton. Seitzman observed Burton open the tubes and draw appellant‘s blood before both he and Burton immediately sealed the tubes, signed the collected evidence, and sealed the evidence inside the collection kit. Within 15 minutes of the blood sample being drawn, Seitzman left the hospital with the sample and transported it to evidence-room refrigerator at the police station. Seitzman explained that the refrigerator is under the care and custody of the police department and is kept locked.
{¶ 11} Burton testified she was the emergency room registered nurse who helped treat appellant on the day of the accident. Burton testified appellant‘s words were “slurred” and “not comprehensible.” According to Burton, appellant “never could answer any questions appropriately.” Burton described appellant as “very combative and uncooperative,” and noted that the hospital had to administer medication to calm her down. Although Burton could not specifically recall the name of the mеdication or medications provided to appellant, she knew the medication had been given to appellant prior to appellant‘s blood being drawn.
{¶ 12} Burton explained that at the request of law enforcement, she did a blood draw from appellant using “the material that [was] provided” in law enforcement‘s collection kit. Burton used the “site prep,” tubes, specimen labels, and the nonalcoholic Betadine antiseptic
{¶ 13} Officer Keith Staton testified he is the property room officer responsible for the safekeeping of evidence, including blood samples taken from a suspect. He explained that the refrigerators that store the collection kits containing blood samples are kept between the “high 30-degree range * * * up to about 41 degrees.” If the refrigerator malfunctions and the temperature rises, an alarm goes off notifying him that the refrigerator needs repair. He stated that the refrigerator had not malfunctioned around the time that he received appellant‘s blood sample.
{¶ 14} Staton explained that on April 24, 2015, he transported appellant‘s blood collection kit to the Miami Valley Regional Crime Lab (“MVRCL“). The kit was stored in a cooler placed inside the trunk of Staton‘s vehicle. It took Staton approximately 45 minutes to gеt to MVRCL, and upon his arrival, he gave custody of the kit to Lori Chenoweth, an MVRCL employee.
{¶ 15} Phillip Carter and Elizabeth Kiely, forensic toxicologists employed by MVRCL, testified about various tests they ran on appellant‘s blood sample. Carter explained that he retrieved appellant‘s blood collection kit frim the lab‘s main refrigerator and transported it upstairs to the toxicology section‘s refrigerator, where appellant‘s blood sample was stored until testing was completed. Carter conducted a blood alcоhol test on appellant‘s blood sample using gas chromatography on May 4, 2015. On May 5, 2015, he conducted an ELISA drug screen, or an immunoassay screening technique, that tests for different classes of drugs. Based on the results of the ELISA testing, Carter also performed a confirmation test for the presence of marijuana.
{¶ 16} Kiely testified that on May 8, 2015, she conducted a gas chromatograph mass spectrometer (“GCS“) basic drug screening of appellant‘s blood after obtaining the sample from the lab‘s refrigerator. Kiely stated she believеd the blood sample contained anticoagulant as the red blood cells had not separated from the plasma and clumped together in the collection tubes. Kiely explained the GCS drug test “looks for a wider variety of drugs than [the] ELISA screen,” such as prescription medications. After performing the GCS testing, Kiely also conducted an opiate confirmation test and a benzodiazepine confirmation test. Kiely‘s testing revealed the presence of alprazolam, commonly known as Xanax, in appellant‘s blоod.
{¶ 17} Following Kiely‘s testimony, the trial court accepted into evidence the following exhibits introduced by the state: the BMV 2255 form read to appellant, photographs of the blood collection kit, appellant‘s signed waiver of her Miranda rights, the police department‘s property room report for appellant‘s blood collection kit, Carter‘s and Kiely‘s curricula vitae, and permits issued by the Ohio Department of Health to Carter and Kiely authorizing them to perform alcohol and drug testing. Appellant did not present any testimony or exhibits in support of her motion to suppress.
{¶ 18} The trial court denied appellant‘s motion after concluding that appellant‘s blood had been taken in accordance with
{¶ 19} A five-dаy jury trial commenced on April 4, 2016. The jury found appellant guilty of one count of aggravated vehicular homicide, one count of negligent homicide, three counts of aggravated vehicular assault, and one count of operating a motor vehicle under the influence. The negligent homicide conviction was merged with the aggravated vehicular homicide conviction, and appellant was sentenced to an aggregate prison term of 16 years.
{¶ 20} Appellant timely appealed, raising the following as her sole assignment of error:
{¶ 21} THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION TO SUPPRESS.
{¶ 22} Appellant contends the trial court erred by denying her motion to suppress for two reasons. First, appellant argues that the blood sample was taken “contrary to the requirements set forth in ORC 4511.19, and the tests to determine [her] alcohol or drug level were not taken voluntarily and were unconstitutional.” Second, she argues the “collection, transport, and testing of [her] blood * * * was not done in substantial compliance with the Ohio Administrative Code.”
{¶ 23} Our review of a trial court‘s denial of a motion to suppress presеnts a mixed question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038, ¶ 10. “An appellate court, however, independently
{¶ 24} “The Fourth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, ¶ 15. “[A] warrantless search of the person is reasonable only if it falls within a recognized exception.” Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552, 1558 (2013). The burden is on the state to establish that the warrantless search was constitutionally permissible. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 98.
{¶ 25}
{¶ 26} Pursuant to Ohio‘s implied-consent statute,
{¶ 27} Appellant argues the implied consent statute does not apply as she had not been arrested at the time the blood sample was taken. She further argues that because she was not “dead or unconscious,” the implied consent statute had not been “triggered.”
{¶ 28} This court previously considered the implied consent statute as it pertained to a blood sample taken from an unconscious individual who was not under arrest at the time the sample was taken. See State v. Taylor, 2 Ohio App.3d 394 (12th Dist.1982). There, we read the implied consent statute “to authorize the withdrawal of blood from an unconscious individual by an officer who has reasonable grounds to believe the person * * * ha[d] been driving a motor vehicle upon the public highways of this state while under the influence of alcohol, whether or not the unconscious person [was] actually placed under arrest.” Id. at 395. In arriving at this decision, we noted that
[a] police officer in such a case as this is in a difficult position. Certainly he is concerned that the unconscious individual reсeive prompt medical attention. On the other hand, he has an obligation to enforce the law prohibiting driving while intoxicated. Therefore, the officer must get a blood test quickly while leaving the unconscious individual in the control of the hospital authorities in order to accomplish both goals. We do not think that the legislature intended to prohibit this procedure by requiring an arrest of an unconscious person.
{¶ 29} The same rationale applies to a person who is in a condition rendering her incapable of refusal. We thеrefore hold that at the request of law enforcement,
{¶ 30} In the present case, Officer Seitzman had reasonable grounds and probable cause to believe that appellant had been operating a motor vehicle while under the influence. Probable cause, within the context of arrests for driving under the influence, is determined by looking at whether the officer “had sufficient information, derived from a reasonably trustworthy sоurce of facts and circumstances, to cause a prudent person to believe the accused was driving under the influence.” State v. Henriksson, 12th Dist. Butler No. CA2010-08-197, 2011-Ohio-1632, ¶ 11. Probable cause is determined by looking at the totality of the surrounding circumstances.” Id.; Hayes at ¶ 51.
{¶ 31} At the time Seitzman had appellant‘s blood sample taken, the totality of the circumstances was sufficient to warrant a prudent person to believe that appellant had been driving under the influence. Seitzman had observed the scene of the accident and had been advised that appellant had сrossed over multiple lanes of traffic before striking the electrical truck. He had been informed that there had been an odor of an alcoholic beverage either about appellant‘s person or coming from her vehicle. Upon arriving at the hospital, Seitzman observed appellant‘s “highly unusual behavior” of incomprehensibly yelling and screaming, and was advised that appellant had needle marks on her hand. Taking all of these facts into consideration, the totality of the circumstances supports the triаl court‘s finding that probable cause existed to believe that appellant had been driving under the influence at the time of the
{¶ 32} The record also supports the trial court‘s finding that appellant impliedly consented to the blood draw pursuant to
{¶ 33} Appellant also contends the state failed to demonstrate it substantially complied with the Ohio Administrative Code in collecting, transporting, and testing her blood sample. Appellant does not identify any specific regulation or regulations the state allegedly failed to comply with, but rather argues that the “test results were contaminated by the medications [she] was administered in the emergenсy room during treatment.”
{¶ 34} The Director of Health promulgated certain regulations in
{¶ 35} In the present case, the state demonstrated substantial compliance with
{¶ 36} Despite the evidence demonstrating the state complied with the requirеments of
{¶ 37} Moreover, in the present case, appellant did not preserve the issue of whether the medication given to her at the hospital contаminated the sample or affected the state‘s compliance with the regulations set forth in
{¶ 38} However, defense counsel did not file with the trial court a supplemental motion to suppress raising this issue. The issue, therefore, was not preserved and has been waived for purposes of appeal. See State v. Davis, 12th Dist. Clinton No. CA2015-12-022, 2017-Ohio-495, ¶ 75.
{¶ 39} Accordingly, as there was probable cause for the blood sample to be taken, appellant impliedly consented to withdrawal of the sample in accordance with
{¶ 40} Judgment affirmed.
RINGLAND and PIPER, JJ., concur.