[Cite as State v. Hill,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25717

v. : T.C. NO. 11CR3522

TIMOTHY J. HILL : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 4th day of April , 2014.

..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BEN SWIFT, Atty. Reg. No. 0065745, P. O. Box 49637, Dayton, Ohio 45449 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant Timothy J. Hill appeals from his conviction and

sentence for one count of aggravated vehicular homicide, in violation of R.C. 2

2903.06(A)(1)(a), a felony of the second degree; one count of aggravated vehicular

homicide, in violation of R.C. 2903.06(A)(2)(a), a felony of the third degree; one count of

aggravated vehicular assault, in violation of R.C. 2903.08(A)(1)(a), a felony of the third

degree; one count of vehicular assault, in violation of R.C. 2903.08(A)(2)(b), a felony of the

fourth degree; and one count of OVI, in violation of R.C.

4511.19(A)(1)(a)/4511.19(G)(1)(a), a misdemeanor of the first degree. Hill filed a timely

notice of appeal with this Court on April 10, 2013.

{¶ 2} The incident which forms the basis for the instant appeal occurred on June 3,

2011, at approximately 5:00 p.m., when Hill was driving alone near the intersection of Clyo

Road and Spring Valley Road in Washington Township, Ohio. Thereupon, Hill was

involved in a head-on collision with another vehicle containing two elderly female

occupants.1 As a result of the accident, Hill was trapped in his vehicle for approximately

forty minutes until rescue crews and paramedics were able to safely remove him. After

being freed from the vehicle, Hill was transported to Miami Valley Hospital by a Careflight

helicopter. Deputy Amber Haas testified that a baggie of marijuana, a glass pipe, and

syringes were found in Hill’s vehicle during an inventory search after the accident.

{¶ 3} While he was being treated at the hospital, Hill consented orally and in

writing to having his blood drawn for purposes of alcohol and drug testing. Hill’s blood

was found to contain legally prohibited levels of narcotics including THC, morphine, and

1 One of the female occupants, eighty-three year old Helen Dodson, later died from the injuries she sustained in the accident. The other occupant, eighty-four year old Elizabeth Wahl, survived the accident but sustained serious injuries. 3

benzodiazepines.

{¶ 4} Hill was subsequently indicted on February 27, 2012, for one count of

aggravated vehicular homicide, a felony of the second degree; one count of aggravated

vehicular homicide, a felony of the third degree; one count of aggravated vehicular assault, a

felony of the third degree; one count of vehicular assault, a felony of the fourth degree; and

one count of OVI, a misdemeanor of the first degree. At his arraignment on March 1, 2012,

Hill entered a plea of not guilty to the charged offenses.

{¶ 5} On April 2, 2012, Hill filed a motion to suppress in which he argued that the

results of his blood test should be excluded from evidence because he was unable to give

informed consent due to the recent trauma he suffered in the car accident and because he was

under the influence of prescribed medication. A hearing was held on Hill’s motion to

suppress on August 10, 2012. On February 1, 2013, the trial court issued a decision

overruling Hill’s motion to suppress. On the same day, Hill pled no contest to all of the

offenses charged in the indictment. On March 11, 2013, the trial court sentenced Hill to an

aggregate term of four years in prison.

{¶ 6} It is from this judgment that Hill now appeals.

{¶ 7} Hill’s sole assignment of error is as follows:

{¶ 8} “[THE] TRIAL COURT ERRED IN OVERRULING HILL’S MOTION TO

SUPPRESS BLOOD TEST REMOVAL/RESULTS BECAUSE WARRANTLESS BLOOD

DRAW WAS TAKEN WITHOUT VALID CONSENT AND IN VIOLATION OF

DEFENDANT’S FOURTH, FIFTH AND FOURTEENTH AMENDMENT RIGHTS TO

THE U.S. CONSTITUTION AND COMPARABLE PORTIONS OF THE OHIO 4

CONSTITUTION.”

{¶ 9} In his sole assignment, Hill contends that the trial court erred when it

overruled his motion to suppress. Specifically, Hill argues that the State failed to establish

through the testimony of its witnesses that his consent to the blood test was valid and was

not the result of coercion by Deputy Haas.

{¶ 10} In regards to a motion to suppress, “the trial court assumes the role of trier of

facts and is in the best position to resolve questions of fact and evaluate the credibility of

witnesses.” State v. Hopfer,

,

(2d Dist. 1996),

quoting State v. Venham,

,

(4th Dist. 1994). The

court of appeals must accept the trial court’s findings of fact if they are supported by

competent, credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662,

, citing State v. Retherford,

,

(2d

Dist. 1994). Accepting those facts as true, the appellate court must then determine, as a

matter of law and without deference to the trial court’s legal conclusion, whether the

applicable legal standard is satisfied.

{¶ 11} The Fourth Amendment to the U.S. 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 Schmerber v.

California,

,

,

(1966).

{¶ 12} It is well established that “searches outside the judicial process, without 5

prior approval by a judge or magistrate, are per se unreasonable under the Fourth

Amendment - subject only to a few specifically established and well delineated exceptions.”

Katz v. U.S.,

,

,

(1967). The U.S. 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). However, a suspect, upon request of a police

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

alcohol and/or drugs in his or her blood. Such consent constitutes actual consent. See

Fairfield v. Regner,

,

(12th Dist. 1985). Consent may be

oral or written. State v. McLemore,

,

,

(2d Dist.), citing Katz, Ohio Arrest, Search and Seizure, Section 19:1 (2008). While

not necessary after oral consent is given, a written consent is strong evidence of a

defendant’s willingness to allow a search.

{¶ 13} Marsha Roemer, the nurse on the Care Flight helicopter that transported Hill

to the hospital, testified that the appellant was alert and conscious during the flight and able

to answer all of the questions she asked him regarding his condition. Roemer testified that

Hill scored a fourteen or fifteen on the Glasgow Coma Scale (GCS), a test used to evaluate a

patient’s level of consciousness. A perfect score on the GCS is a fifteen. Roemer further

testified that no medications were administered to Hill during the flight from the scene of the

accident to the hospital, and he did not exhibit any signs of head trauma. Roemer testified

that Hill’s only complaint was that his shin hurt. [Cite as State v. Hill,

.] {¶ 14} Upon contact at the hospital, Deputy Haas testified that Hill was lying down

in a hospital bed unrestrained, and no police officers were guarding the room. Deputy Haas

testified that she had been ordered by her supervisor to go to the hospital in order to secure

Hill’s consent for a blood draw. Deputy Haas testified that Hill had no visible head injuries

and did not appear to be under the influence of any drugs or alcohol.

{¶ 15} Deputy Haas testified that she asked Hill for his personal information

including his social security number, date of birth, full name, and address. Hill answered all

of the background questions accurately. Deputy Haas testified that while Hill had seemed

slightly groggy at the beginning of the interview, he became more alert and “peppy” as the

questioning progressed. Deputy Haas also testified that she read the “consent to search”

form to Hill which clearly advised him of his right to refuse to give his consent to the blood

draw. Although the form’s pre-printed description of the subject of the search indicated that

it was for a “premises” and/or a “vehicle,” Deputy Haas wrote “BLOOD FROM SELF” as

the objective of Hill’s consent on the form. Deputy Haas also explained to Hill that her

purpose was to secure a sample of his blood and that he did have to consent to her request.

Deputy Haas testified that if Hill had appeared to be incapable of consenting to the blood

draw, she would not have proceeded, and instead, would have immediately called her

supervisor and informed him of the situation.

{¶ 16} Hill verbally agreed to the blood draw and signed the “consent to search”

form. Deputy Haas testified that no threats or coercion were used to secure Hill’s consent.

Hill was not under arrest nor did she display her firearm while she was speaking with Hill.

After Hill signed the form, Deputy Haas left the room for approximately fifteen minutes in

order to secure a phlebotomist to perform the blood draw. Deputy Haas described Hill as 7

cooperative during the initial questioning and the actual procedure.

{¶ 17} Michelle Spencer, a nurse who was present during Hill’s questioning,

testified that had she witnessed Deputy Haas behaving in a hostile or coercive manner

towards the appellant, she would have instructed the deputy to leave the room. Spencer

further testified that Hill appeared to be awake, alert, coherent, and oriented to his

surroundings. Spencer testified that no narcotic medication was administered to Hill while

he was in the hospital room.

{¶ 18} Hill argues that because of the trauma he suffered in the car accident, he was

unable to voluntarily consent to the blood draw. However, the findings made by the trial

court are supported by the record. Hill was alert, coherent, and cooperative when he gave

his consent to Deputy Haas to perform the blood draw. There is no evidence that Hill

consented because he was coerced nor under duress. The testimony provided by Deputy

Haas, Roemer, and Spencer clearly establish that Hill knowingly, intelligently, and

voluntarily consented to the blood draw. We also note that while the consent form used was

not specifically drafted to authorize a blood draw, Deputy Haas testified that she explained

to Hill that the purpose of the form was to secure his consent for the blood draw and she

wrote “BLOOD FROM SELF” as the objective of Hill’s consent on the form. The trial

court found Deputy Haas’ unrefuted testimony regarding the consent form to be credible,

and we find no basis to disturb the court’s finding on appeal. Accordingly, the trial court

did not err when it overruled Hill’s motion to suppress the results of the blood draw.

{¶ 19} Hill’s sole assignment of error is overruled.

{¶ 20} Hill’s sole assignment of error having been overruled, the judgment of the 8

trial court is affirmed.

..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Michele D. Phipps Ben Swift Hon. Steven K. Dankof