State v. Burnside
| Decision Date | 22 October 2003 |
| Docket Number | No. 2002-1440 and 2002-1524.,2002-1440 and 2002-1524. |
| Citation | 100 Ohio St.3d 152,797 NE 2d 71 |
| Parties | THE STATE OF OHIO, APPELLANT, v. BURNSIDE, APPELLEE. |
| Court | Ohio Supreme Court |
Jason M. Griggs, Fairfield County Assistant Prosecuting Attorney, and Terre Lynne Vandervoort, Lancaster Law Director, for appellant.
Dagger, Johnston, Miller, Ogilvie & Hampson and Scott P. Wood, for appellee.
{¶ 1} The issue presented in this case is whether the state substantially complies with the alcohol-testing regulations set forth in the Ohio Administrative Code when it fails to use a solid anticoagulant in a blood test.
{¶ 2} On July 28, 2001, Trooper Donald A. Ward arrested defendant-appellee, Chadd A. Burnside, for driving under the influence of alcohol. In the early hours of that morning, Trooper Ward stopped Burnside's vehicle for a speeding violation. During the stop, Trooper Ward observed that Burnside had glassy eyes and smelled of alcohol. Burnside admitted that he had consumed "a few" alcoholic beverages and consented to a standard field sobriety test. Upon the completion of the field sobriety test, Trooper Ward arrested Burnside and charged him with driving under the influence of alcohol in violation of R.C. 4511.19(A)(1).
{¶ 3} Trooper Ward transported Burnside to the State Highway Patrol Post, where he asked Burnside to submit to a chemical breath test. Burnside refused and requested a blood test. Trooper Ward then transported Burnside to the Fairfield Medical Center, where a phlebotomist drew a blood sample. After properly sealing the blood sample, Trooper Ward mailed the sample to the State Highway Patrol Laboratory in Columbus, Ohio. A criminalist at the laboratory tested the sample and determined that Burnside's blood-alcohol content was 0.169 grams per 100 milliliters. As a result, Trooper Ward additionally charged Burnside with operating a motor vehicle with a prohibited blood-alcohol level in violation of R.C. 4511.19(A)(2).
{¶ 4} On August 1, 2001, Burnside entered pleas of not guilty to charges of speeding, driving under the influence of alcohol, and driving with a prohibited level of alcohol. Burnside thereafter filed a motion to suppress the blood-test results, asserting that the state had failed to substantially comply with the blood-testing procedures in Ohio Adm.Code 3701-53-05. At the suppression hearing, the state presented testimony from the arresting officer, the phlebotomist who drew the blood sample, and the criminalist who tested the blood sample. Burnside presented no evidence. During closing argument, Burnside asserted that the blood-test results should be suppressed because the state had failed to establish that it (1) used a nonvolatile antiseptic on his skin prior to collecting the blood sample and (2) drew the blood into a vacuum container with a solid anticoagulant. The trial court overruled Burnside's motion to suppress, holding that the state had substantially complied with the blood-testing procedures in Ohio Adm.Code 3701-53-05.
{¶ 5} On December 4, 2001, Burnside entered a plea of no contest to operating a motor vehicle with a prohibited level of alcohol in violation of R.C. 4511.19(A)(2). In exchange, the state dismissed the remaining charges. Burnside appealed his conviction to the Fifth District Court of Appeals, alleging that the trial court had erred in denying his motion to suppress the blood-test results. The court of appeals reversed the judgment of the trial court on the basis that the state failed to substantially comply with Ohio Adm.Code 3701-53-05 and certified its judgment to be in conflict with that of the Seventh District Court of Appeals in State v. Zuzga (2001), 141 Ohio App.3d 696, 753 N.E.2d 229.
{¶ 6} This cause is now before this court upon our determination that a conflict exists in case No. 2002-1524 and pursuant to the allowance of a discretionary appeal in case No. 2002-1440.
{¶ 7} The court of appeals certified the following issue for our determination: "When there is no evidence that a solid anticoagulant is used in a blood test to determine alcohol content as required by O.A.C. XXXX-XX-XX(C), dos sic the State still meet its burden of substantial compliance with Department of Health regulations?" Our analysis of the certified issue begins with the appropriate standard of review.
{¶ 8} Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539. We therefore consider whether the facts in the instant case demonstrate substantial compliance with the Department of Health regulations under a de novo standard of review. Resolution of this issue requires an examination of the blood-testing procedures in Ohio Adm.Code 3701-53-05.
{¶ 9} The General Assembly established the threshold criteria for the admissibility of alcohol-test results in prosecutions for driving under the influence and driving with a prohibited concentration of alcohol in R.C. 4511.19(D). That section, which governs the admissibility of alcohol-test results, provides that a defendant's blood, breath, or urine "shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director of health pursuant to section 3701.143 of the Revised Code." R.C. 3701.143 requires the director of health to "determine, or cause to be determined, techniques or methods for chemically analyzing a person's blood."
{¶ 10} In accordance with this statutory mandate, the Director of Health promulgated the following alcohol-testing regulations in Ohio Adm.Code 3701-53-05:
{¶ 11} "(A) All samples shall be collected in accordance with section 4511.19, or section 1547.11 of the Revised Code, as applicable.
{¶ 12} "(B) When collecting a blood sample, an aqueous solution of a nonvolatile antiseptic shall be used on the skin. No alcohols shall be used as a skin antiseptic.
{¶ 13} "(C) Blood shall be drawn with a sterile dry needle into a vacuum container with a solid anticoagulant, or according to the laboratory protocol as written in the laboratory procedure manual based on the type of specimen being tested.
{¶ 14} "(D) The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. Urine shall be deposited into a clean glass or plastic screw top container which shall be capped, or collected according to the laboratory protocol as written in the laboratory procedure manual.
{¶ 15} "(E) Blood and urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information:
{¶ 16} "(1) Name of suspect;
{¶ 17} "(2) Date and time of collection;
{¶ 18} "(3) Name or initials of person collecting the sample; and
{¶ 19} "(4) Name or initials of person sealing the sample.
{¶ 20} "(F) While not in transit or under examination, all blood and urine specimens shall be refrigerated." (Emphasis added.)
{¶ 21} The blood-testing procedure in Ohio Adm.Code 3701-53-05 thus requires the state to (1) use an aqueous solution of a nonvolatile antiseptic on the skin, (2) use a sterile dry needle to draw blood into a vacuum container with a solid anticoagulant, (3) seal the blood container in accordance with the appropriate procedure, and (4) refrigerate the blood specimen when it is not in transit or under examination. The purpose of these regulations is to ensure the accuracy of the alcohol-test results. State v. Dickerson (1986), 25 Ohio St.3d 64, 65-66, 25 OBR 86, 495 N.E.2d 6.
{¶ 22} We first addressed the application of the Department of Health regulations that govern alcohol testing in State v. Steele (1977), 52 Ohio St.2d 187, 6 O.O.3d 418, 370 N.E.2d 740. Steele involved the admissibility of a breath-alcohol test administered by a police officer who failed to continuously observe a subject for the requisite 20-minute observation period prior to administering the test. We concluded that the failure to observe the subject for a "few seconds" while the officer exited and walked around his patrol car did not render the test results inadmissible. Steele thus established that rigid compliance with the alcohol-testing procedures in the Ohio Administrative Code is not a prerequisite to the admissibility of alcohol-test results.
{¶ 23} Nearly a decade later, we again addressed whether the state had complied with the Department of Health regulations relating to alcohol testing in State v. Plummer (1986), 22 Ohio St.3d 292, 22 OBR 461, 490 N.E.2d 902. In Plummer, we considered the consequences of the state's failure to comply with a regulation that required it to refrigerate urine samples that were not in transit or under examination. Concluding that a three-to-four-hour interval without refrigeration did not render the test results inadmissible, we held that "absent a showing of prejudice to a defendant, the results of a urine-alcohol test administered in substantial compliance with Ohio Adm.Code 3701-53-05 are admissible in a prosecution under R.C. 4511.19." Id. at syllabus.
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