[Cite as State v. Hollis,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. -vs- : : Case No. 12CA34 MATTHEW HOLLIS : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2011CR0181 D

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: June 17, 2013

APPEARANCES:

For Appellant: For Appellee:

ROBERT E. CALESARIC JAMES J. MAYER, JR. 35 South Park Place, Suite 150 RICHLAND CO. PROSECUTOR Newark, OH 43055 JOHN C. NIEFT 38 South Park St. Mansfield, OH 44902 [Cite as State v. Hollis,

.]

Delaney, P.J.

{¶1} Appellant Matthew Hollis appeals from the January 3, 2012 decision of

the Richland County Court of Common Pleas overruling his motion to suppress.

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from the indictment, bill of particulars

and evidence presented by both parties at the hearings on appellant’s motion to

suppress.

{¶3} This case arose on September 12, 2010, a few minutes after midnight,

when troopers of the Mansfield post of the Ohio State Highway Patrol were dispatched

to a fatal traffic crash at the intersection of Reed Road and Route 30. Upon arrival,

troopers discovered an overturned white Ford Ranger pickup truck in the median and

a number of witnesses at the scene.

{¶4} Upon investigation, troopers discovered appellant had driven the pickup

truck from Reed Road onto Route 30 at a high rate of speed, failed to negotiate a

curve, lost control, left the roadway, overcorrected, and overturned the vehicle.

{¶5} In addition to appellant, the truck contained three passengers: Michelle

Antonelli was in the right-front passenger seat, and Matthew Oprean and Allen Shirer

were in the bed of the truck. Oprean and Shirer were ejected during the crash and

landed in the roadway, exposed to oncoming traffic. Oprean was either killed during

the crash, ejection, and impact, or was struck and killed by oncoming traffic; he was

pronounced dead at the scene. Shirer and Antonelli sustained serious injuries. Richland County, Case No. 12CA34 3

{¶6} Troopers on the scene of the crash observed alcoholic beverage

containers in and around the vehicle and the roadway, and detected an odor of an

alcoholic beverage permeating the entire scene. The victims had already been

transported by EMS, although appellant was briefly still present and spoke with a

trooper who described him as “emotionally shooken up (sic).” Appellant was soon

transported to MedCentral Hospital in Mansfield for treatment.

{¶7} Trooper Aaron Doerfler made contact with appellant in the MedCentral

emergency room. Appellant was laying on a hospital bed covered with a blanket, and

the trooper did not note any apparent visible injuries. He noticed the odor of alcohol

about appellant’s person and intended to read him the BMV 2255 form. Doerfler was

unable to read the form, however, because appellant would not respond to his

questions. Doerfler described appellant crying and wailing, conscious but

unresponsive to Doerfler’s questions and statements. Doerfler said he spent several

minutes attempting to communicate with appellant, who said nothing or cried and

“toss[ed] his head back and forth.” Doerfler filled out the BMV 2255 but noted

appellant was unable to sign because he was unresponsive.

{¶8} Doerfler testified that if appellant had been responsive, he would have

read the 2255 form to him and asked him to submit to a blood test. Doerfler

determined appellant was unresponsive and therefore asked a nurse to draw

appellant’s blood, providing her with a kit he kept in his patrol car for the purpose of

chemical testing. The kit contained two vials for appellant’s blood. The nurse drew

the blood at 0154 hours and gave the vials to Doerfler, who sealed them with evidence

tape. Both Doerfler and the nurse signed labels on the vials, Doerfler returned them to Richland County, Case No. 12CA34 4

the kit, sealed it, and placed the kit in a mailbox outside the hospital at 0212 hours,

addressed to the Ohio State Highway Patrol Crime Lab.

{¶9} Investigating troopers testified the decision was made to request the

blood draw based upon “informed consent” and did not seek a search warrant for

appellant’s blood. Blood was also drawn for medical alcohol testing purposes by

MedCentral personnel.

{¶10} Subsequent testing of appellant’s blood samples by the Ohio State

Highway Patrol Crime Lab and MedCentral Hospital Laboratory found a whole blood

alcohol concentration of .197 grams by weight of alcohol per one hundred milliliters

(grams percent) and a blood serum concentration of .239 grams by weight of alcohol

per one hundred milliliters.

Indictment, Motion to Suppress, and Plea

{¶11} Appellant was charged by indictment with one count of aggravated

vehicular homicide pursuant to R.C. 2903.06(A)(1)(a), a felony of the second degree;

one count of aggravated vehicular homicide pursuant to R.C. 2903.06(A)(2), a felony

of the third degree; two counts of aggravated vehicular assault pursuant to R.C.

2903.08(A)(1)(a), felonies of the third degree; two counts of aggravated vehicular

assault pursuant to R.C. 2903.08(A)(2)(b), felonies of the fourth degree; one count of

O.V.I. pursuant to R.C. 4511.19(A)(1)(f), a misdemeanor of the first degree; one count

of O.V.I pursuant to R.C. 4511.19(A)(1)(c), a misdemeanor of the first degree; and one

count of O.V.I pursuant to R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree.

{¶12} Appellant entered pleas of not guilty and filed a motion to suppress all

evidence obtained from his arrest, including the chemical tests of his blood. A series Richland County, Case No. 12CA34 5

of evidentiary hearings were held. Appellee conceded the hospital medical blood

draw was not legally sufficient to support an indictment under R.C. 4511.19(A)(1)(c)

[plasma], but indicated its intent to use the test with expert testimony to establish a

violation of R.C. 4511.19(A)(1)(a).

{¶13} The trial court overruled appellant’s motion to suppress on January 3,

2012. Thereafter, appellant entered pleas of no contest as charged and on April 16,

2012, was sentenced to an aggregate prison term of 6 years, in addition to a

mandatory term of 3 years post-release control, a lifetime drivers-license suspension,

and restitution.

{¶14} Appellant now appeals from the trial court’s decision overruling his

motion to suppress.

{¶15} Appellant raises three Assignments of Error:

{¶16} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF

DEFENDANT-APPELLANT BY DENYING HIS MOTION TO SUPPRESS THE LEGAL

WHOLE BLOOD DRAW EVIDENCE OBTAINED BY LAW ENFORCEMENT IN

VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES AND RC 4511.19 AND RC 4511.191(sic).”

{¶17} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF

DEFENDANT-APPELLANT BY DENYING HIS MOTION TO SUPPRESS THE

MEDICAL PLASMA BLOOD DRAW EVIDENCE OBTAINED BY LAW

ENFORCEMENT IN VIOLATION OF THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES AND RC 4511.19 AND RC 4511.191

(sic).” Richland County, Case No. 12CA34 6

{¶18} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF

DEFENDANT-APPELLANT BY ALLOWING THE STATE TO PUT ON EXPERT

TESTIMONY WITHOUT COMPLYING WITH CRIMINAL RULE 16 DENYING

APPELLANT DUE PROCESS OF LAW.”

I., II.

{¶19} Appellant’s first two assignments of error arise from the trial court’s

rulings upon the motion to suppress and will be addressed together.

Standard of Review

Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long,

,

(4th Dist. 1998). During a suppression hearing, the trial court assumes

the role of trier of fact and, as such, is in the best position to resolve questions of fact

and to evaluate witness credibility. State v. Brooks,

,

(1996). A reviewing court is bound to accept the trial court’s findings of

fact if they are supported by competent, credible evidence. State v. Medcalf,

,

(4th Dist. 1996). Accepting these facts as true, the

appellate court must independently determine as a matter of law, without deference to

the trial court’s conclusion, whether the trial court’s decision meets the applicable legal

standard. State v. Williams,

,

(4th Dist. 1993),

overruled on other grounds.

{¶20} There are three methods of challenging a trial court’s ruling on a motion

to suppress on appeal. First, an appellant may challenge the trial court’s finding of

fact. In reviewing a challenge of this nature, an appellate court must determine Richland County, Case No. 12CA34 7

whether the trial court’s findings of fact are against the manifest weight of the

evidence. See, State v. Fanning,

,

(1982); State v.

Klein,

,

(1991). Second, an appellant may argue

the trial court failed to apply the appropriate test or correct law to the findings of fact.

In that case, an appellate court can reverse the trial court for committing an error of

law. See,

Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issues raised in a motion to suppress. When

reviewing this type of claim, an appellate court must independently determine, without

deference to the trial court’s conclusion, whether the facts meet the appropriate legal

standard in any given case. State v. Curry,

,

(8th Dist. 1994).

Probable Cause and Arrest

{¶21} First, appellant contends troopers had no probable cause to arrest him

and that he was not the subject of a valid arrest which would trigger the provisions of

implied consent. We disagree.

{¶22} The Fourth Amendment to the United States Constitution and Section

14, Article I of the Ohio Constitution prohibit the government from conducting

unreasonable searches and seizures of persons or their property. Terry v. Ohio,

,

,

(1968). Specifically, the Fourth Amendment

protects persons against unjustified or improper intrusions into a person's privacy,

including bodily intrusion. See State v. Gross, 5th Dist. No. CT 96-055 (May 24, 1999),

citing Schmerber v. California,

,

,

(1966). Richland County, Case No. 12CA34 8

{¶23} It is well-established that “searches conducted outside the judicial

process, without prior approval by judge or magistrate, are per se unreasonable under

the Fourth Amendment-subject only to a few specifically established and well-

delineated exceptions.” Katz v. United States,

,

,

(1967). The United States Supreme Court has recognized that the Fourth

Amendment's “proper function is to constrain, not against all intrusions as such, but

against intrusions which are not justified in the circumstances, or which are made in

an improper manner.” Winston v. Lee,

,

,

(1985), quoting

. However, “a suspect, upon request of a

police officer, may voluntarily consent to submit to a blood test to determine the

concentration of alcohol in his or her blood. Such consent constitutes actual consent *

* *.” Fairfield v. Regner,

,

(12th Dist. 1985).

{¶24} Ohio’s statutory implied consent law is found in R.C. 4511.191(A)(2),

which states in pertinent part:

Any person who operates a vehicle * * * upon a highway or any

public or private property used by the public for vehicular travel or

parking within this state or who is in physical control of a vehicle *

* * shall be deemed to have given consent to a chemical test or

tests of the person's whole blood, blood serum or plasma, breath,

or urine to determine the alcohol, drug of abuse, controlled

substance, metabolite of a controlled substance, or combination

content of the person's whole blood, blood serum or plasma,

breath, or urine if arrested for a violation of division (A) or (B) of Richland County, Case No. 12CA34 9

section 4511.19 of the Revised Code, section 4511.194 of the

Revised Code or a substantially equivalent municipal ordinance,

or a municipal OVI ordinance. (Emphasis added).

{¶25} Appellant argues here that the “implied consent to testing” provisions of

R.C. 4511.191 are not applicable because he was not arrested. In State v. Whitt, we

reiterated the principle that an arrest occurs when four elements are present: (1) an

intent to arrest, (2) under real or pretended authority, (3) accompanied by actual or

constructive seizure or detention of the person, and (4) which is so understood by the

person arrested. 5th Dist. No. 10-CA-3, 2010-Ohio-3761at ¶ 14, citing State v. Darrah,

,

(1980).1 We also referenced our decision in State

v. Kirschner, 5th Dist. No.2001 CA00107,

, for the proposition that “ ‘a

valid arrest must precede the seizure of a bodily substance, including a blood draw,

and must precede an implied consent given based upon Form 2255.’“ Id. at ¶ 18,

quoting State v. Rice,

,

(1998).

{¶26} We have also recognized, however, the reality of constructive arrest,

particularly in cases such as the one sub judice in which the subject of the drunken

driving investigation is hospitalized or undergoing treatment and arrest per se is not

feasible. That doesn’t mean the investigation stops. In the instant case, the trial court

applied the rationale of our decision in State v. Groves, which we also find to be

applicable. 5th Dist. No. 10CA18,

. In that case, the driver was

hospitalized when he was questioned by the officer and read the BMV 2255; the driver

1 Judge Hoffman concurred separately in Whitt. Richland County, Case No. 12CA34 10

was never taken into “custody” as such because he was undergoing medical treatment

and there was no time for a citation to be issued. Nevertheless, we found as follows:

Despite this court's holding in State v. Kirschner, [5th Dist.]

No.2001CA00107,

, the administrative regulations

in the case sub judice were fulfilled. Appellant was told he was

under arrest. A citation would have been issued at the hospital but

for appellant's medical emergency. To disallow the results of the

blood draw because of the intervening urgent circumstances

would place form over substance. The purpose of the mandatory

language of the implied consent law is to inform the suspect of his

various rights under 4511.191 and the administrative license

provisions for non-consent. The language contained in the BMV

2250 form was sufficient to establish an “arrest.”

State v. Groves, 5th Dist. No. 10CA18,

, ¶ 19.

{¶27} We find the trooper’s interaction with appellant at the hospital in

obtaining the blood sample after his constructive arrest complied with R.C.

4511.191(A)(2) and is reasonable under the Fourth Amendment. See, State v. May,

5th Dist. No. 2010CA1,

, ¶ 22, appeal not allowed,

,

,

.

{¶28} Appellant further argues, though, that no probable cause existed to

arrest him for O.V.I., and we disagree. A police officer has probable cause for an

arrest if the facts and circumstances within his knowledge are sufficient to cause a

reasonably prudent person to believe that the defendant has committed the offense. Richland County, Case No. 12CA34 11

State v. Cummings, 5th Dist.No.2005–CA–00295, 2006–Ohio–2431, ¶ 15, citing State

v. Heston,

,

(1972). In making this determination,

the trial court must examine the totality of facts and circumstances surrounding the

arrest. See State v. Miller,

,

(1997); State v.

Brandenburg,

,

(2nd Dist. 1987). When

evaluating probable cause to arrest for OVI, the totality of the facts and circumstances

can support a finding of probable cause to arrest even where no field sobriety tests

were administered. See State v. Homan,

,

(2000). Furthermore, a police officer does not have to observe poor driving

performance in order to effect an arrest for driving under the influence of alcohol if all

the facts and circumstances lead to the conclusion that the driver was impaired. See

State v. Harrop, 5th Dist. No. CT2000–0026 (July 2, 2001), citing Atwell v. State,

,

(8th Dist. 1973).

{¶29} The tragic facts and circumstances of the instant case are replete with

probable cause for appellant’s constructive arrest for O.V.I. The circumstances of the

crash, which include appellant losing control and overturning the vehicle at a high rate

of speed, combined with the alcoholic beverage containers scattered throughout the

scene, plus the odor of an alcoholic beverage emanating from appellant’s person in

the MedCentral E.R., constitute probable cause. We also note appellant’s demeanor

of moaning, wailing, and failing to respond to the trooper despite his responsiveness

to hospital personnel. Richland County, Case No. 12CA34 12

Exigent Circumstances

{¶30} Appellant next argues appellee did not prove exigent circumstances

existed which would permit his blood to be drawn absent a search warrant. We note

that if there are exigent circumstances and “an officer has probable cause to arrest a

driver for DUI, the result of an analysis of a blood sample taken over the driver's

objection and without consent is admissible in evidence, even if no warrant had been

obtained.” State v. Hoover,

, 2009–Ohio–4993,

, citing Schmerber v. California,

, 770–771,

,

(1966). The issues are whether exigent circumstances existed along with

probable cause to arrest appellant for OVI prior to the evidentiary blood draw, and

whether a reasonable procedure was used to extract the blood. Schmerber at 770–

772; State v. Capehart, 12th Dist. No. CA2010–12–035, 2011–Ohio–2602, ¶ 10. If all

of these elements are present, then appellant’s consent was unnecessary for the

blood draw results to be admissible. State v. Carr, 11th Dist. No. 2012-L-001, 2013-

Ohio-737, ¶ 43.

{¶31} We have already determined probable cause existed to arrest appellant

for O.V.I. Turning to the question of exigent circumstances, we have recognized that

the potential for alcohol to dissipate within a suspect’s blood system constitutes

exigent circumstances. State v. Anderson, 5th Dist. No. 00CAA12039,

, *2, appeal not allowed,

,

. Other courts

have held likewise. “It is beyond cavil that alcohol in an individual's system

progressively dissipates over a short period of time.” Willoughby v. Dunham, 11th

Dist. No. 2010-L-068,

, ¶ 37;

(“the percentage of Richland County, Case No. 12CA34 13

alcohol in the blood begins to diminish shortly after drinking stops, as the body

functions to eliminate it from the system”). Exigent circumstances have also been

found to justify ordering a blood sample without consent under Schmerber when a

defendant was in an accident approximately two hours prior to the blood draw and

“there was a risk that evidence would be destroyed as appellant's system began to

eliminate the alcohol.” State v. Schulte, 11th Dist. No. 94-L-186,

, *8,

appeal not allowed,

,

(1997); Schmerber at 770–

771 (in cases where the defendant had to be taken to a hospital and police had to

investigate the scene of the accident, time is limited to secure a warrant and exigent

circumstances exist).

{¶32} In the instant case, troopers had probable cause to suspect appellant

was under the influence of alcohol after encountering him at the scene of the accident.

Appellee presented evidence through Morrow’s testimony that a search warrant would

have taken “hours” to obtain. We find exigent circumstances existed.

{¶33} Finally, the Schmerber court also required that, provided exigent

circumstances and probable cause exist, the blood must also be drawn in a

reasonable manner. Here, the blood was drawn by a nurse who used gloves, used the

non-alcoholic iodine swab in the trooper’s kit to clean the area, used a sterile needle

from stock, and collected the sample into a grey-topped vacuum tube in the kit

containing preservative and anticoagulant materials. No evidence exists this was not

done using the typical, reasonable procedures used for extracting blood and,

therefore, this element of Schmerber was met. See State v. Capehart, 12th Dist. No.

CA2010-12-035, 2011–Ohio–2602, at ¶ 13 (“because the blood sample was drawn by Richland County, Case No. 12CA34 14

trained medical personnel using medically acceptable procedures, it is clear that the

method used to extract the evidence was reasonable and performed in a reasonable

manner”).

Timely Blood Draw

{¶34} Appellant next argues appellee failed to show the blood draw was

requested within two hours and drawn within three hours of operation, and did not

establish substantial compliance with Chapter 3701-53-05 of the Ohio Administrative

Code in terms of the method of collection and retention of the sample. These issues

present mixed questions of law and fact. During a suppression hearing, the trial court

assumes the role of the trier of fact and is therefore in the best position to resolve

factual questions and evaluate the credibility of witnesses. State v. Mills,

,

(1992); State v. Hopfer,

,

(2nd Dist. 1996). As a result, an appellate court must accept the trial

court's findings of fact if they are supported by competent, credible evidence. State v.

Guysinger,

,

(4th Dist. 1993). An appellate

court must then independently determine without deference to the trial court's legal

conclusions whether, as a matter of law, evidence should be suppressed. State v.

Waters,

,

(5th Dist. 2009).

{¶35} Appellant insists throughout his argument that the time of the crash was

merely speculative, but this assertion is not borne out by the record. The trial court

found the crash occurred at midnight, and this finding is supported by competent

credible evidence. Trooper Beringo testified the time of dispatch was 12:04 and it is

reasonable to conclude from the circumstantial evidence that the crash had occurred Richland County, Case No. 12CA34 15

shortly before it was called in. Appellant was still on the scene and admitted to

Trooper Morrow, who arrived at 12:10, that he was the driver. Tragically, witnesses

were still a short distance away at a rest stop on the highway who thought they had

struck one of the victims as he lay in the roadway.

{¶36} The trial court’s conclusion that the blood was drawn within two hours of

the crash is supported by competent, credible evidence. Appellant was immediately

transported to MedCentral by the EMS squad, where Trooper Doerfler later made

contact with him. Doerfler testified that he read the BMV 2255 form at 0120 hours, the

blood was drawn at 0154 hours, and he placed the sealed kit containing the samples

into the mailbox near the hospital at 0212 hours.

{¶37} Appellant also argues appellee did not establish that a solid

anticoagulant was used because two witnesses testified the tubes appeared to be

empty. Appellant’s assertion is belied by the fact that the lab was able to obtain a

sample from the tubes, in other words, the blood samples were still in liquid form upon

testing. As appellee points out, if the anticoagulant was missing, the samples would

have been solid and unable to be tested.

Blood Plasma Issues

{¶38} Appellant further argues the trial court should have suppressed the blood

plasma evidence because the testing procedure was “tainted” and does not comply

with the Rules of Evidence. We note, however, that the trial court found the hospital

blood alcohol test “may only be used in evidence to prove alcohol impaired driving if it

is offered with expert testimony.” While we have already concluded that the testing

was performed within three hours of operation, supra, appellant is charged with a Richland County, Case No. 12CA34 16

violation of R.C. 4511.19(A)(1)(a) and evidence of a blood sample taken outside the

time frame set out in R.C. 4511.19(D) is admissible to prove that a person is under the

influence of alcohol as proscribed by R.C. 4511.19(A)(1)(a) in the prosecution for a

violation of R.C. 2903.06, provided that the administrative requirements of R.C.

4511.19(D) are substantially complied with and expert testimony is offered. State v.

Hassler,

,

,

, syllabus.

{¶39} The evidence in this case established a MedCentral phlebotomist made

a separate blood draw pursuant to medical orders. Appellant’s arm was cleaned with

water and gauze, and blood was drawn into a tube labeled and bar-coded specifically

for appellant, labeled with the technician’s initials and time of draw. The blood tube

was placed in a “bio-bag” and sent directly to the hospital lab through the hospital’s

pneumatic tube system. Upon receipt in the lab, another technician centrifuged the

sample to separate the blood plasma and tested the sample on the Siemens Advia

1800 instrument by means of the alcohol dehydrogenase enzymatic method at 1:47

a.m.

{¶40} We find the trial court’s findings of fact to be supported by competent,

credible evidence. The trial court did not err in overruling appellant’s motion to

suppress.

{¶41} Appellant’s first and second assignments of error are overruled.

III.

{¶42} In his third assignment of error, appellant summarily argues the trial

court should not have permitted appellee to present the testimony of two “experts” Richland County, Case No. 12CA34 17

without providing those experts’ reports and qualifications prior to their testimony. We

disagree.

{¶43} We note the “experts” appellant complains of, employees of the

MedCentral lab, did not testify as experts within the meaning of Crim.R. 16(K).

Instead, they were merely fact witnesses who testified to their procedures and the

testing performed on appellant’s sample in response to arguments raised in what

appellee characterizes as a “shotgun motion to suppress.” Moreover, these witnesses

testified at a suppression hearing and not at trial.

{¶44} The trial court did not err in permitting the witnesses to testify and

appellant’s third assignment of error is without merit.

{¶45} Having overruled appellant’s three assignments of error, the judgment of

the Richland County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Gwin, J. and

Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. JOHN W. WISE

PAD:kgb [Cite as State v. Hollis,

.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MATTHEW HOLLIS : : : Case No. 12CA34 Defendant-Appellant :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. JOHN W. WISE