State v. Brand, C-030388.

• Decision Date: 26 March 2004
• Docket Number: No. C-030388.,C-030388.
• Citation: 157 Ohio App.3d 451,811 NE 2d 1156
• Parties: The STATE of Ohio, Appellant, v. BRAND, Appellee.
• Court: Ohio Court of Appeals

157 Ohio App.3d 451

2004-Ohio-1490

811 NE 2d 1156

2004-Ohio-1490

The STATE of Ohio, Appellant, v. BRAND, Appellee.

No. C-030388.

Court of Appeals of Ohio, First District, Hamilton County.

Decided March 26, 2004.

Julia L. McNeil, City Solicitor, Ernest F. McAdams Jr., City Prosecutor, and Keith C. Forman, Assistant City Prosecutor, for appellant.

J.G. Keyes Co., LLC, and James G. Keys Jr., for appellee.

MARK P. PAINTER, Judge.

{¶ 1} After a car accident, defendant-appellee Sharon D. Brand was cited for driving under the influence,¹ failure to stop after an accident,² and failure to control her vehicle.³ Brand moved to suppress certain evidence, and the trial court granted part of her motion, suppressing the results of Brand's blood test, the results of a horizontal gaze nystagmus ("HGN") test, and statements made by her to police prior to her arrest. The state now appeals, and we affirm in part and reverse in part.

I. A One-Car Wreck on I-75

{¶ 2} At Brand's suppression hearing, two Cincinnati police officers testified. Officer Joey Stevens testified that he was dispatched to an accident on I-75 at 11 p.m. on July 27, 2002. Stevens testified that when he arrived on the scene, a wrecked car was facing south on northbound I-75, with Brand alone in the car. Witnesses told Officer Stevens that Brand had been driving erratically, hit the median, and developed a flat front left tire. The witnesses told Stevens that Brand had continued driving on the flat tire and had crashed again, ending up in a ditch off the highway. As Officer Stevens approached Brand, she was still trying to drive her car, but her tires were spinning and the car would not move.

{¶ 3} Officer Stevens testified that he noticed a strong odor of alcohol about Brand and that she was dazed and unresponsive. Brand was taken by ambulance to a hospital. When Stevens arrived at the hospital, he saw that Brand was on a backboard and in a neck brace. Stevens observed that Officer Charles Beebe was talking with Brand.

{¶ 4} According to Stevens, Brand was moody and irritated, and did not want to answer questions. But Stevens acknowledged that he did not closely observe the interactions between Officer Beebe and Brand, and could not recall any specific statements Brand had made. Stevens testified that, in his opinion, Brand was under the influence of alcohol or drugs. He also testified that Brand complained of pain while Officer Beebe talked to her. Stevens stated that Officer Beebe read Brand her Miranda rights and arrested her.

{¶ 5} Officer Beebe testified that he saw Brand for the first time when she was in the hospital, and that he noticed that she smelled of alcohol. Beebe asked Brand whether she was involved in a crash, and she said that she did not know what had happened. Beebe observed that Brand's speech was slurred and that her eyes were watery and bloodshot. Beebe testified that he asked Brand where she had been coming from prior to the crash, and that she stated that she had been out celebrating and "drank some wine." According to Beebe, Brand was at times combative, but at other times cooperative.

{¶ 6} Officer Beebe administered the HGN test on Brand and found six clues based on her performance. He testified that Brand said that she was uncomfortable and in pain during the questioning and HGN test, and that her face was bruised. Beebe testified that he concluded that Brand was intoxicated. He read Brand her rights, read her the implied-consent form, asked for a sample of her blood, which Brand refused, and gave her an arrest citation. Hospital personnel later removed a sample of Brand's blood, more than two hours after the accident.

{¶ 7} In October 2002, the trial court dismissed the charges against Brand for lack of prosecution. In February 2003, Brand was again cited for the same charges. Brand filed a motion to suppress, claiming that the state had committed numerous statutory and constitutional violations. The trial court ruled in Brand's favor on three specific claims, holding that the results of Brand's blood test, the result of the HGN test performed on her, and any statements she had made to the police prior to being read her Miranda rights were inadmissible.

{¶ 8} Appellate review of a motion to suppress presents a mixed question of law and fact.⁴ When considering a motion to suppress, the trial court assumes the role of trier of fact.⁵ An appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence, but it then must independently determine, without deference to the trial court, whether the facts satisfy the applicable legal standard.⁶

II. The State Must Prove Compliance

{¶ 9} In its first assignment of error, the state argues that the trial court erred when it suppressed Brand's blood test results. At the suppression hearing, Brand argued that the blood test was not conducted in accordance with Ohio Department of Health regulations and that the test was not done within two hours of the accident.

{¶ 10} The trial court found that the state had offered "no testimony to support that it the blood was stored according to the Department of Health regulations." The court stated, "The standard is not strict compliance or substantial compliance. The Court will sustain the motion to not admit. The blood test is inadmissible at trial."

{¶ 11} In any criminal prosecution under R.C. 4511.19, "the court may admit evidence on the concentration of alcohol, drugs of abuse, or a combination of them in the defendant's whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within two hours of the time of the alleged violation."⁷ The statute also requires that "the bodily substance withdrawn shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code."⁸

{¶ 12} In Newark v. Lucas,⁹ the Ohio Supreme Court created a distinction between offenses under R.C. 4511.19(A)(1), and the "per se" offenses of R.C. 4511.19(A)(2) through (9). The "per se" offenses define "`the point the legislature has determined an individual cannot drive without posing a substantial danger, not only to himself, but to others.' * * * In determining whether one of the per se offenses was committed by the defendant, the trier of fact is not required to find that the defendant operated a vehicle while under the influence of alcohol or drugs, but only that the defendant operated a vehicle within the state and that the defendant's chemical test reading was at the proscribed level."¹⁰ Because the results of the chemical test of the bodily substance are clearly an element of the proof for the per se offenses, the results of such tests and their accuracy are crucial to a determination of guilt or innocence.¹¹

{¶ 13} But in an R.C. 4511.19(A)(1) prosecution, there is no requirement that alcohol or a drug of abuse be present in a specific concentration. Unlike the per se offenses, where the critical issue is the accuracy of the chemical test measuring the concentration level of alcohol in one's blood, breath, or urine, the focus in a subsection (A)(1) prosecution is on the defendant's ability to perceive, make judgments, coordinate movements, and safely operate a motor vehicle.¹² The test results in a subsection (A)(1) prosecution are merely probative of the issue of impaired driving, not dispositive, and are considered in addition to any other evidence of impaired driving.¹³

{¶ 14} The Newark court then decided that, in a subsection (A)(1) prosecution, because the bodily substance test results are not dispositive of guilt or innocence, test results drawn more than two hours after the time of the alleged violation should not be treated in an exclusionary manner.¹⁴ That is, the Ohio Supreme Court created a limited exception that allows into evidence bodily-substance test results taken beyond the two-hour limit, as long as the state introduces the test results along with expert testimony. Such expert testimony "would be necessary to relate the test results to the defendant and to the time of the alleged violation, as well as to relate the numerical figure representing a percentage of alcohol by weight in the bodily substance, as shown by the results of the chemical test, to the common understanding of what it is to be under the influence of alcohol."¹⁵

{¶ 15} We think Newark created only a limited exception because of footnote 7, in which the court stated, "It also must be established by the prosecution that the test was properly administered and analyzed in accordance with the remainder of R.C. 4511.19(B)." (The current R.C. 4511.19D corresponds to R.C. 4511.19B at the time of Newark.)

{¶ 16} A number of Ohio appellate courts have seized upon the distinction made in Newark between subsection (A)(1) and subsections (A)(2) through (9) and have interpreted the decision as creating more than just a limited exception. Said one court, "The Supreme Court of Ohio has held that in a criminal prosecution for driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1), the results of a properly administered bodily substances test presented with expert testimony may be admitted into evidence despite a lack of literal compliance with the requirements of R.C. 4511.19."¹⁶ The courts have thus expanded the Newark holding to mean that bodily-substances test results in an R.C. 4511.19(A)(1) prosecution can be admitted without the state proving compliance with Department of Health regulations.¹⁷ The courts have reasoned that any variance from the regulations goes to the weight to be assigned to the evidence, not to its admissibility.¹⁸

{¶ 17} We disagree with these interpretations of Newark, based upon footnote 7 in the Newark decision. Though the Supreme Court may not...