442 N.E.2d 491 | Ohio Ct. App. | 1982
On May 9, 1981, a highway patrol officer was summoned to the scene of an accident in Brown County. Prior to going to the scene of the accident the officer went to the Brown County General Hospital where he observed the appellant in an unconscious condition.
The officer talked to two witnesses at the hospital who told him that the appellant had been drinking and had had an accident on a friend's motorcycle. The officer noted an odor of alcohol emanating from the appellant's unconscious body.
The officer asked that blood be withdrawn from the unconscious appellant for a blood test to determine the extent of appellant's intoxication. He also issued a citation, handing it to the appellant's mother, charging the appellant with driving under the influence of alcohol in violation of R.C.
The appellant, prior to trial, filed a motion to suppress the results of the blood test and the motion was denied, after a hearing, on July 30, 1981. The appellant then changed his plea to no contest and was convicted as charged and sentenced as appears of record. From that conviction and sentence the appellant brings a timely appeal to this court.
The appellant's first assignment of error reads as follows:
"The trial court erred in admitting evidence of a blood test where the blood was withdrawn from the defendant without his consent and without the existence of a valid arrest for the offense of driving while under the influence of alcohol."
R.C.
"(A) Any person who operates a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his *395 blood if arrested for the offense of driving while under the influence of alcohol. The test or tests shall be administered at the direction of a police officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways in this state while under the influence of alcohol. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered.
"(B) Any person who is dead, unconscious, or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn consent provided by division (A) of this section and the test or tests may be administered, subject to sections
There is no dispute about the fact that the appellant was unconscious at the hospital prior to the blood test and so R.C.
We read R.C.
A police officer in a case such as this is in a difficult position. Certainly he is concerned that the unconscious individual receive 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.
Each "drunken driving" case is to be decided on its own particular facts. Oregon v. Szakovits (1972),
The appellant relies on State v. Risner (1977),
Although this was not specifically raised by the appellant, we note that the implied consent statute, R.C.
Appellant's second assignment of error reads as follows:
"The trial court erred in failing to find that an arrest for driving while under the influence of alcohol was an illegal arrest where the arresting officer did not see the defendant driving or visit the scene of the accident, but bases his arrest merely on finding the defendant unconscious at the hospital and statements given at the hospital by two witnesses."
We have not decided nor, as stated above, need we decide whether there was an actual arrest of the appellant in the instant case. Assuming that there was an arrest of the appellant, it was a valid arrest since the officer had reasonable grounds to believe that the appellant had committed the offense charged. It is not necessary that an officer actually view the operation of a vehicle by an accused in order to validly arrest for violation of R.C.
Judgment affirmed.
HENDRICKSON, P.J., and KOEHLER, J., concur.