State v. Crace
| Decision Date | 16 February 2012 |
| Docket Number | No. 11TRC07742.,11TRC07742. |
| Citation | 968 N.E.2d 76,168 Ohio Misc.2d 13,2012 -Ohio- 2090 |
| Parties | The STATE of Ohio v. CRACE. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
James K. Stanley, Athens City Prosecuting Attorney, for plaintiff.
William R. Biddlestone, Athens, for defendant.
[Ohio Misc.2d 14]{¶ 1} This matter came on for hearing this 14th day of February, 2012, on defendant Jason Crace's motion to suppress. Defendant was present with his attorney William R. Biddlestone. The state of Ohio was represented by James K. Stanley. Upon consideration of testimony, the court finds as follows:
FACTS
{¶ 2} Defendant was the driver of a vehicle that crashed during the early evening hours of December 1, 2011. The crash scene was on State Route 56 about eight miles from Athens. The vehicle was not completely blocking the roadway when it came to rest.
{¶ 3} Ohio Highway Patrol Post 5 received a telephone call at 8:24 p.m. from Ohio Department of Natural Resources Officer Perko reporting that he had come upon the accident scene at 8:15 p.m. Ohio Highway Patrol Trooper Davis was dispatched and arrived on the scene at 8:34 p.m.
{¶ 4} Defendant admitted that he had been driving the vehicle but declined to give a statement as to the circumstances of the one-vehicle accident. Davis noted that although defendant said that he was not injured, he was unsteady. Davis also noted that he had a strong odor of an alcoholic beverage, slurred speech, and red, glassy, bloodshot eyes.
{¶ 5} On a properly conducted horizontal-gaze-nystagmus (“HGN”) test, defendant scored six of six possible clues. Defendant attempted to begin the walk-and-turn test but was unable to maintain the opening heel-to-toe position and [Ohio Misc.2d 15]then refused to complete that test. Defendant also refused to attempt the one-leg-stand test and portable breath test.
{¶ 6} Defendant was arrested for operating a vehicle while under the influence of alcohol (“OVI”), and properly advised of the consequences under R.C. 4511.192 of testing or refusing, and he refused to take an evidentiary breath test. This refusal occurred at 9:40 p.m.
{¶ 7} In writing the OVI citation, Davis noted the time of the violation as 8:00 p.m. There was no evidence presented to establish that precise time. The basis for that time was Davis's opinion that an accident on a state highway would be noticed and reported within a very short amount of time.
{¶ 8} Defendant concedes that there was probable cause for an OVI arrest. The issue presented is compliance with the three-hour rule of R.C. 4511.19, given the questionable time of the accident. This court has issued two previous decisions on this requirement ( State v. Wagoner, case No. 10TRC06494, decided December 1, 2010; State v. Bobo, case No. 11TRC02429, decided July 29, 2011), but the facts in this case present an issue not previously considered. Does the three-hour rule have any application to an explicit refusal of an evidentiary breath test?
{¶ 9} Defendant raises the issue of the three-hour requirement not only as to the validity of the administrative license suspension but also as to the element of refusal in defendant's R.C. 4511.19(A)(2) charge. It is defendant's position that a refusal, in order to be recognized as a refusal for each of these purposes, must come within three hours of the last operation of the vehicle.
{¶ 10} R.C. 4511.19(D)(1)(b) provides that the court may admit evidence as shown by a chemical analysis of a bodily substance “withdrawn within three hours of the time of the alleged violation.” The rationale for this requirement is to have a sample closely related in time as (circumstantial) evidence of the concentration at the time of operation. If the sample is taken within that time, no expert testimony is required to relate back to the time of operation. A later test may still be admissible with expert testimony to calculate, by retrograde extrapolation, the concentration at the time of operation. Newark v. Lucas, 40 Ohio St.3d 100, 532 N.E.2d 130 (1988); State v. Hassler, 115 Ohio St.3d 322, 875 N.E.2d 46 (2007). Thus, the reason for the rule is the relevance and reliability of the chemical test result.
[Ohio Misc.2d 16]{¶ 11} R.C. 4511.19(A)(2)(b), in describing the refusal element of this charge, requires that the arrestee, subsequent to “being asked by a law enforcement officer to submit to a chemical test or tests under section 4511.191 of the Revised Code, and being advised by the officer in accordance with section 4511.192 of the Revised Code of the consequences of the person's refusal or submission to the test or tests, refuse to submit to the test or tests.” The court notes that there is no explicit time requirement within this particular section.
{¶ 12} R.C. 4511.191 contains the implied-consent law of Ohio with an administrative-license-suspension sanction for either a test over the limit or a refusal. There are no explicit time requirements within this section for the test or refusal. Similarly, the appeal criteria of R.C. 4511.197 have no time requirements.
{¶ 13} R.C. 4511.192 contains two types of mandates. Ninety-five percent of that section provides directives for a law-enforcement officer to advise an arrestee of consequences of refusing or testing and further directives as to processing the...
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...322, 875 N.E.2d 46 (2007). Thus, the reason for the rule is the relevance and reliability of the chemical test result.” State v. Crace, 168 Ohio Misc.2d 13, 2012-Ohio-2090, 968 N.E.2d 76, ¶ 10 (M.C.). {¶ 39} “ ‘The state has the burden to establish that the test was done in accordance with ......
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State v. Crace
...facts as determined by the trial court in its decision and entry denying Appellant's motion to suppress, as set forth in State v. Crace, 168 Ohio Misc.2d 13, 2012-Ohio-2090, 968 N.E.2d 76, ¶ 2-7:"Defendant was the driver of a vehicle that crashed during the early evening hours of December 1......