State v. Carr , 2013 Ohio 737 ( 2013 )

[Cite as State v. Carr, 2013-Ohio-737.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-L-001
- vs - :
MICHAEL P. CARR, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No.
11CR000109.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel, Assistant Prosecutor, and
Patrick J. Condon, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville,
OH 44077 (For Plaintiff-Appellee).
Michael J. O’Shea, 19300 Detroit Road, Suite 202, Rocky River, OH 44116. (For
Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Michael P. Carr, appeals from the Judgment Entries
of the Lake County Court of Common Pleas, denying his Motion to Suppress and
finding him guilty of two counts of Aggravated Vehicular Assault, one count of Vehicular
Assault, two counts of Operating a Vehicle Under the Influence of Alcohol (OVI), and
one count of Driving Under Suspension (DUS). The issues to be determined by this
court are whether an OVI suspect’s blood can be drawn without his consent; whether an
evidentiary blood sample can be drawn when a defendant is not under arrest; whether a
conviction for OVI is supported by the weight and sufficiency of the evidence when there
was evidence that a defendant was driving erratically, exhibited signs of intoxication,
and his blood alcohol concentration was .202; and whether actual notice of suspension
is required to be convicted of DUS. For the following reasons, we affirm the decision of
the court below.
{¶2} On May 27, 2011, Carr was indicted by the Lake County Grand Jury for
the following: Aggravated Vehicular Assault (Count One), a felony of the second
degree, in violation of R.C. 2903.08(A)(1); Aggravated Vehicular Assault (Count Two), a
felony of the second degree, in violation of R.C. 2903.08(A)(1); Vehicular Assault
(Count Three), a felony of the third degree, in violation of R.C. 2903.08(A)(2); Operating
a Vehicle Under the Influence of Alcohol (Count Four), a misdemeanor of the first
degree, in violation of R.C. 4511.19(A)(1)(a); Operating a Vehicle Under the Influence of
Alcohol (Count Five), a misdemeanor of the first degree, in violation of R.C.
4511.19(A)(1)(f); Driving Under Suspension (Count Six), a misdemeanor of the first
degree, in violation of R.C. 4510.11(A); Reckless Operation (Count Seven), a minor
misdemeanor, in violation of R.C. 4511.20(A); Operating a Vehicle Without Reasonable
Control (Count Eight), a minor misdemeanor, in violation of R.C. 4511.202(A); and
Failure to Maintain Assured Clear Distance (Count Nine), a minor misdemeanor, in
violation of R.C. 4511.21(A).
{¶3} On August 9, 2011, Carr filed a Motion to Suppress the evidence of a
blood draw test conducted to determine his blood alcohol concentration (BAC). Carr
asserted that the evidence should be suppressed because he was not under arrest at
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the time of the blood draw, he did not consent to the blood draw, and certain Ohio
Administrative Code procedures were not followed in drawing and testing his blood.
{¶4} On September 23, 2011, a suppression hearing was held. The following
testimony was presented at that hearing.
{¶5} Officer Matthew Neath, a patrolman for the Willoughby Hills Police
Department, testified that on February 9, 2011, he was dispatched to the scene of a car
accident on Interstate 271 North in Willoughby Hills, Ohio. Upon his arrival at the
scene, he observed one vehicle on the left shoulder of the road, and saw another
vehicle in a ditch off of the right shoulder. At the scene, he encountered Carr, the owner
of the vehicle on the left shoulder of the road, who had blood coming down the side of
his face. Upon inquiring what had occurred, Carr responded that he did not know what
had happened. While speaking with Carr, Officer Neath noted that his speech was
“very slurred” and he seemed “very confused.” Carr was taken into an ambulance and
inside, Officer Neath noticed that Carr had a “very strong odor of alcoholic beverage on
his breath.”
{¶6} Carr was transported to Hillcrest Hospital. After speaking with witnesses
at the scene, Officer Neath went to the police department to retrieve a blood sample kit
before going to the hospital because he had reason to believe Carr was under the
influence of alcohol. Upon arriving at the hospital, Officer Neath had to wait to speak
with Carr because the doctors were attending to him.
{¶7} Officer Neath then spoke to Hillcrest Hospital security, and made
arrangements for security to watch Carr if he remained in the hospital until a Willoughby
Hills officer could be sent to take him into custody. Subsequently, Officer Neath was
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able to speak with Carr and read him his Miranda rights. Carr explained that he had
one glass of wine and denied being in an accident. Officer Neath then read the
BMV2255 ALS form to Carr, which stated that Carr was “under arrest” for operating a
vehicle under the influence and explained that the refusal to take any required chemical
tests would result in a suspension of Carr’s driving privileges. Carr refused to submit to
either a breath or blood test.
{¶8} Officer Neath left the room for a period of time, and then a doctor “came
out and said that he did not believe that Mr. Carr was in the right frame of mind to refuse
or consent at that time” and said that Carr was “not of sound mind.” Officer Neath
determined that “based off of rules of implied consent the hospital staff would be able to
draw blood at that point.” Blood was then drawn from Carr and Officer Neath
transported the blood to the police department.
{¶9} Officer Neath explained that he did have the intention to arrest Carr on
that night. He explained that he was unable to do field sobriety tests at the scene of the
accident and that he did not do them at the hospital because the hospital staff was
working on Carr. He also explained that he did not feel he could remove Carr from the
hospital because he was told Carr was being admitted for the night.
{¶10} Nurse Nicole Berman, a registered nurse at Hillcrest Hospital, treated Carr
on the night of the accident. She initially observed him acting appropriately at around
10 p.m. However, at 11:10 p.m., she made a note on the chart stating that “patient
cannot remember things he just told me. * * * Dr. Marshall okayed blood draw as
patient is not of sound reasoning.” She explained that she drew Carr’s blood, following
the standard medical procedure, and she sealed the blood before giving it to the officer.
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{¶11} Berman testified that according to the ambulance report, Carr did not have
a loss of consciousness and was alert. She explained that he was not diagnosed as
having any neurological problems or as having a concussion.
{¶12} Douglas Rohde, a supervisor of chemistry and toxicology at the Lake
County Crime Lab, testified regarding the tests he performed on the forensic sample of
Carr’s blood. He explained that when he received this sample, there was no evidence
of tampering and he took the sample from a sealed tube. Rohde explained that he
tested Carr’s whole blood sample using the gas chromatography method and the results
indicated that Carr’s BAC was .202.
{¶13} Rohde explained that alcohol begins to metabolize almost instantaneously
once it has entered the body and that time is of the essence when collecting a blood
sample in order to be able to obtain an accurate BAC.
{¶14} Dr. Brian Marshall, an emergency room doctor at Hillcrest Hospital,
treated Carr on the night of the accident. He testified that Carr acted “agitated” when he
was first admitted. Dr. Marshall explained that two separate blood draws were done on
that night, one for medical tests and one evidentiary or forensic sample for the police.
{¶15} Dr. Marshall explained that Carr was found to have a “minor head injury.”
Dr. Marshall stated that he authorized a “medical” blood draw. However, he explained
that he did not mean to authorize a sample taken for any other purpose.
{¶16} On October 7, 2011, the trial court issued a Judgment Entry, denying
Carr’s Motion to Suppress. The trial court found that, under Schmerber v. California,
384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), there was probable cause to take
a blood sample without Carr’s consent. The court also found that Carr had been under
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arrest, since Officer Neath told Carr he was under arrest, intended to arrest Carr, and
Carr was guarded at all times while in the hospital. The court found that Carr was
deemed to have consented to a blood draw, pursuant to R.C. 4511.191(A), since he
gave implied consent due to being incapable of refusing. The court also found that
there was no violation of the Ohio Administrative Code in relation to the blood draw, the
storing of the blood, or the blood testing performed by the Lake County Crime Lab.
{¶17} A trial to the court was held in this matter on October 17, 2011. Prior to
the trial, the parties stipulated that the victim’s injuries in the crash amounted to serious
physical harm. The following testimony was presented.
{¶18} Rohde, the supervisor at the Lake County Crime Lab testified regarding
his testing of Carr’s blood. He presented testimony similar to that presented at the
suppression hearing. He explained that, upon reviewing Carr’s medical records, the
hospital did a test of his blood and arrived at an alcohol serum number of .213. He
performed certain conversions on the serum test to arrive at the BAC, which led to an
approximate .180 result. He explained that conducting his own test of the separate
sample provided by the police, he arrived at a result of a .202 concentration in the whole
blood. He was unaware of exactly what Carr’s blood alcohol content may have been at
the time of the accident and stated that it could have been higher, lower, or the same.
{¶19} He explained that in his expert opinion, to a reasonable degree of
scientific certainty, an individual’s ability to operate a motor vehicle would be
“appreciably impaired” based on the BAC of .202, since he would have a slower
reaction time and difficulty performing “divided attention” tasks.
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{¶20} Sharon Hazen testified as a witness to the accident that occurred on
February 9, 2011. She explained that she was driving on 271 North and saw a gray or
silver Volvo, later identified by police as Carr’s vehicle, “flying behind us” and it “shook
[her] car it was driving so fast.” She saw the car collide with another car and saw the
second car hit the guardrail, flip over, and fall into a ditch. She exited her car,
approached the Volvo, and saw a man in the driver’s seat, who had blood on his
forehead. She did not see anyone else in the car and the man informed her no one was
with him. She saw him get out of the car and start walking around, standing outside of
his vehicle, and she asked him not to move because she thought he might have a head
injury.
{¶21} Bernadette Stark also witnessed the incident on February 9. While driving
on 271 North, she saw that a Volvo “went flying past [her] like a bullet.” She testified
that the vehicle was going “like over a hundred [mph] easily.” She then saw the Volvo
and another car collide and the second car flip over the guardrail.
{¶22} Audrey Kaczmarek, the victim in the accident, testified that while she was
driving on 271 North, she heard an accelerating engine from behind and then was hit on
the back left side of her car. Her car hit the guardrail and rolled over three times. She
did not see the driver of the car that hit her.
{¶23} Brett Adam Wessler testified that on February 9, he witnessed a Volvo on
271 travelling at close to a hundred miles an hour. The car was rapidly and erratically
shifting lanes and “hooking in the tail” like someone “yanking on the wheel too hard.”
Soon thereafter, Wessler saw that the same vehicle was in an accident.
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{¶24} Berman, the Hillcrest Hospital nurse, presented similar testimony to her
testimony at the suppression hearing. She explained further that she drew blood from
Carr on the night of February 9, 2011, on two occasions, both for a medical use and for
the police.
{¶25} Officer Neath also gave testimony consistent with the suppression
hearing. In addition, he explained that on the night of the accident, the roads were dry
and clear. He explained that, at the scene, he noticed Carr was talking with a “thick
tongue.”
{¶26} Officer Neath explained that while he was in the hospital with Carr and
reading Carr his rights, Carr paid attention and seemed to understand what he was
saying. Officer Neath explained that no investigation was done by going to the bar
where Carr was drinking to determine how many drinks he had on the night of the
accident.
{¶27} Darlene Jones, an employee at the Ohio Bureau of Motor Vehicles (BMV)
in Youngstown, testified regarding Carr’s driving record. She explained that according
to Carr’s certified driving record, he had a violator compact suspension on his license,
starting on September 28, 2010, due to his failure to pay a ticket in the state of Indiana.
She testified that a notice of suspension was mailed to Carr’s address, dated
September 1, 2010, stating that he was required to pay a $30 reinstatement fee to Ohio
and provide a receipt for payment to the state of Indiana in order to prevent his license
from being suspended. She explained that these requirements were not met, his
license became suspended on September 28, 2010, and the suspension was not
cleared until March 25, 2011.
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{¶28} At the close of the State’s case, Carr made a Crim.R. 29 Motion. This was
denied by the trial court.
{¶29} Ray Carr, Carr’s father, testified for the defense. He explained that he had
been helping Carr with his financial affairs. Regarding Carr’s suspended license, Ray
sent a cashier’s check to the Indiana court to pay Carr’s fine. He did not get a receipt or
a verification of this payment to submit to the Ohio BMV as required. He explained that
he also sent a check to the Ohio BMV on September 24, 2010. After making these
payments, he informed Carr that his license was no longer suspended. However, Ray
explained that he later found out the license was still suspended, that Indiana had either
not received or made a record of his payment, and thereafter sent another payment to
Indiana.
{¶30} Ray explained that he had seen the September 1, 2010 notice of
suspension, which prompted him to pay the Ohio BMV. He explained that he received
the letter from Carr and that it was in a pile of documents related to various financial
issues that Ray was helping Carr resolve.
{¶31} The State moved to dismiss counts seven through nine. These counts
were dismissed.
{¶32} On October 17, 2011, the trial court found Carr guilty of counts one
through six. This was memorialized in a Judgment Entry filed on October 20, 2011. On
December 19, 2011, Carr was sentenced to a term of two years each for counts one
through three, and for six months each on counts four through six. The trial court, for
the purposes of sentencing, merged counts two and three with count one, and counts
four and five with each other. The court also merged counts one and six, and Carr was
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sentenced to a total term of two years in prison. He was also ordered to pay a $1,000
fine and his driver’s license was suspended for a period of four years.
{¶33} Carr timely appeals and raises the following assignments of error:
{¶34} “[1.] The trial court erred by denying the motion to suppress concerning
the evidentiary blood draw because (1) the defendant was not under arrest at the time
of the blood draw and/or (2) the blood draw was conducted notwithstanding the
defendant unambiguously refus[ing] consent to the blood draw and/or (3) defendant was
not in a condition rendering him incapable of refusal and thus there was no implied
consent.
{¶35} “[2.] There was insufficient evidence of an ‘Under the Influence’ violation
of ‘4511.19(A)(1)(a)’ because of the improper admission of the evidence blood draw, the
conscious disregard of any field sobriety tests and the use of medical blood evidence
that did not comply with the Ohio Administrative Code (or, in the alternative, the
4511.19(A)(1)(a) conviction is against the manifest weight of the evidence).
{¶36} “[3.] As it relates to the DUS count (and the DUS element of the other
counts of the indictment), the State failed to show that the defendant had notice or
knowledge of his suspension at the time of the arrest.”
{¶37} In his first assignment of error, Carr argues that the trial court erred by
denying his Motion to Suppress and by admitting the results of the evidentiary blood
draw collected by the police at the hospital and submitted to the Lake County Crime Lab
for testing. He asserts that since he was not under arrest at the time of the blood draw,
he refused consent, and he was not incapable of denying consent, the blood was
10
improperly drawn and the results of the tests taken on that sample could not be
admitted as evidence.
{¶38} The State argues that Carr was under arrest at the time of the blood draw
and even if he was not, a blood draw was proper under Schmerber because there was
probable cause to arrest Carr and exigent circumstances required to take a blood
sample in the absence of consent.
{¶39} “The trial court acts as trier of fact at a suppression hearing and must
weigh the evidence and judge the credibility of the witnesses.” (Citations omitted.)
State v. Ferry, 11th Dist. No. 2007-L-217, 2008-Ohio-2616, ¶ 11. “[T]he trial court is
best able to decide facts and evaluate the credibility of witnesses.” (Citation omitted.)
State v. Wagner, 11th Dist. No. 2010-P-0014, 2011-Ohio-772, ¶ 12. “The court of
appeals is bound to accept factual determinations of the trial court made during the
suppression hearing so long as they are supported by competent and credible
evidence.” State v. Hines, 11th Dist. No. 2004-L-066, 2005-Ohio-4208, ¶ 14. “Once the
appellate court accepts the trial court’s factual determinations, the appellate court
conducts a de novo review of the trial court’s application of the law to these facts.”
(Citations omitted.) Ferry at ¶ 11.
{¶40} We initially note that the parties do not dispute that Carr refused to
consent to a blood draw. The question before us, instead, is whether Carr’s blood could
be drawn for the purposes of testing without his consent.
{¶41} Carr argues that in order to draw his blood, he must have given consent,
have committed prior OVIs allowing for a forcible blood draw, or the State was required
11
to obtain a search warrant. However, Carr fails to recognize that another basis for a
proper blood draw exists under Schmerber.
{¶42} Pursuant to Schmerber, 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, 123 Ohio St.3d 418, 2009-Ohio-4993,
916 N.E.2d 1056, ¶ 19, citing Schmerber, 384 U.S. at 770-771, 86 S.Ct. 1826, 16
L.Ed.2d 908; State v. Schulte, 11th Dist. No. 94-L-186, 1996 Ohio App. LEXIS 4675,
*22 (Oct. 25, 1996) (“a blood sample may be taken over a defendant’s objection where
there are exigent circumstances and probable cause”).
{¶43} Under Schmerber and the law of this state, we must consider if there were
exigent circumstances, probable cause to arrest Carr for OVI prior to the evidentiary
blood draw, and a reasonable procedure 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 Carr’s consent was unnecessary for the blood draw
results to be admissible.
{¶44} Regarding whether exigent circumstances are present in blood draw
cases, this court has stated that “[i]t is beyond cavil that alcohol in an individual’s
system progressively dissipates over a short period of time. * * * This is why ‘[a]lcohol
in body substances is [considered] evanescent evidence.’” (Citations omitted.)
Willoughby v. Dunham, 11th Dist. No. 2010-L-068, 2011-Ohio-2586, ¶ 37; Schmerber at
770 (“the percentage of alcohol in the blood begins to diminish shortly after drinking
stops, as the body functions to eliminate it from the system”).
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{¶45} This court has held that the exigency exception is applicable to seize a
defendant to prevent the evidence of his blood alcohol content from being lost. Dunham
at ¶ 37. 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.” Schulte, 1996 Ohio
App. LEXIS 4675, at *23; 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).
{¶46} In the present case, police suspected that Carr was under the influence of
alcohol after encountering him at the scene of the accident. Carr had to be transported
to the hospital due to a potential injury while Officer Neath remained at the scene of the
accident to continue his investigation and speak to witnesses. When Officer Neath
arrived at the hospital, he had to wait for a period of time before being able to talk to
Carr and determine that a blood draw was necessary, which occurred over an hour after
the accident occurred. This is the type of case where there was both a risk that the
evidence would be destroyed and there would be difficulty obtaining a warrant due to
the surrounding circumstances, similar to those that existed in Schmerber, and we find
that exigent circumstances existed.
{¶47} The next consideration is whether the trial court properly found that
probable cause existed to arrest Carr for an OVI, such that a blood draw was proper
under Schmerber. Probable cause is defined as “‘a reasonable ground for belief of
guilt.’” State v. Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804 (2000), quoting Carroll v.
13
United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Probable cause
requires “more than bare suspicion: Probable cause exists where ‘the facts and
circumstances within [the officers’] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to warrant a man of reasonable
caution in the belief that’ an offense has been or is being committed.” Brinegar v.
United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), quoting
Carroll at 162. A probable cause determination is based on the “totality” of facts and
circumstances within a police officer’s knowledge. State v. Miller, 117 Ohio App.3d 750,
761, 691 N.E.2d 703 (11th Dist.1997). The odor of alcohol, glassy eyes, slurred
speech, and other indicia of alcohol use by a driver are factors to be considered in
determining the existence of probable cause for an OVI arrest. Kirtland Hills v. Deir,
11th Dist. No. 2004-L-005, 2005-Ohio-1563, ¶ 16. Testimony regarding a defendant’s
erratic driving is also a factor to be considered. State v. Sitko, 11th Dist. No. 2011-P-
0042, 2012-Ohio-2705, ¶ 28.
{¶48} In the present case, as found by the trial court, Officer Neath smelled the
strong odor of alcohol on Carr’s breath and stated that Carr had both slurred speech
and “mush mouth.” In addition, prior to taking the blood, Carr admitted that he had a
glass of wine prior to the accident. Carr was also involved in an accident and several
witnesses informed Officer Neath at the scene that Carr was driving 90 to 100 miles per
hour and was “weaving aggressively in and out of traffic” prior to hitting the victim’s car.
According to Officer Neath’s testimony, Carr also acted confused and did not remember
being in an accident, even though he sustained an injury and vehicle damage.
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{¶49} This court has found probable cause for an arrest in similar
circumstances. In State v. Hummel, 154 Ohio App.3d 123, 2003-Ohio-4602, 796
N.E.2d 558 (11th Dist.), this court found that there was probable cause for an OVI arrest
when there was evidence that an accident appeared to be caused by impaired control,
there was a strong odor of alcohol on the defendant, and the defendant had slurred
speech and glassy eyes. Id. at ¶ 34. The court noted that “[w]hen a police officer
arrives at the scene of an accident, shortly after its occurrence, discerns an odor of
alcohol on a suspect, and the suspect admits to having driven the vehicle, the police
officer has probable cause to arrest that individual for driving under the influence.” Id. at
¶ 31, citing State v. Lyons, 11th Dist. No. 97-P-0122, 1999 Ohio App. LEXIS 2623, *6
(June 11, 1999). In the present case, the facts show that Officer Neath arrived at the
scene of the accident, Carr did not admit that he was in an accident but did state that he
had been driving his car, Neath had been made aware by the witnesses that Carr was
driving the vehicle, and the foregoing signs of intoxication were present. When viewing
this evidence in conjunction with the evidence of Carr’s erratic driving and dangerous
speed at which he was travelling, the trial court did not err by finding that there was
probable cause to conduct a blood test. See State v. Corbissero, 11th Dist. No. 2011-
A-0028, 2012-Ohio-1449, ¶ 30 (probable cause to conduct an arrest existed when the
defendant was excessively speeding, driving erratically, gave “incredible” responses to
questions about his speeding, admitted to having consumed alcohol, and had a strong
odor of alcohol on his person).
{¶50} In addition, although there were no field sobriety tests taken by Officer
Neath, such tests are not necessary for a finding of probable cause to conduct an
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arrest. The “totality of the circumstances can support a finding of probable cause to
arrest, even where no field sobriety tests were administered.” State v. Penix, 11th Dist.
No. 2007-P-0086, 2008-Ohio-4050, ¶ 29.
{¶51} Finally, the Schmerber court also required that, provided exigent
circumstances and probable cause exist, the blood must also be drawn in a reasonable
manner. In this case, the blood was drawn by a nurse who testified to routinely
performing such tests and explained the procedure for doing so. There is no evidence
that this was not done using the typical, reasonable procedures used for extracting
blood and, therefore, this element of Schmerber was met. See Capehart, 2011-Ohio-
2602, at ¶ 13 (“because the blood sample was drawn by 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”).
{¶52} Although Carr disputes whether he was under arrest at the time of the
blood draw and whether he was “of sound mind” for the purposes of determining
whether a blood draw could be done under R.C. 4511.191(A)(4), since we find that the
blood draw was proper under Schmerber, we need not consider these issues.
{¶53} Finally, although Carr discusses various Administrative Code sections that
he argues must be followed in order for a blood sample to be admissible, he discusses
no specific violation that occurred and points to no evidence supporting the suppression
of the evidentiary blood sample based on Administrative Code violations. Therefore, we
find no error in the trial court’s conclusion that there were no grounds for suppressing
the blood sample due to violations of the Administrative Code.
{¶54} The first assignment of error is without merit.
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{¶55} In his second assignment of error, Carr argues that his conviction for
Operating a Vehicle Under the Influence of Alcohol, pursuant to R.C. 4511.19(A)(1)(a),
was against the sufficiency and the weight of the evidence because the evidentiary
blood draw done for the State was improperly admitted, the separate medical blood
draw was not done in compliance with the Ohio Administrative Code, field sobriety tests
were not conducted, and no investigation was done to determine where or how much
Carr was drinking on the night of the accident.
{¶56} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied
to determine whether the case may go to the jury,” i.e. “whether the evidence is legally
sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary (6 Ed.1990),
1433. Essentially, “sufficiency is a test of adequacy,” that challenges whether the
state’s evidence has created an issue for the trier of fact to decide regarding each
element of the offense. Id.{¶57} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In reviewing the sufficiency of the
evidence to support a criminal conviction, “[t]he relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.” Id.17
{¶58} Weight of the evidence, in contrast to its sufficiency, involves “the
inclination of the greater amount of credible evidence.” (Citation omitted.) (Emphasis
deleted.) Thompkins at 387. Whereas the “sufficiency of the evidence is a test of
adequacy as to whether the evidence is legally sufficient to support a verdict as a matter
of law, * * * weight of the evidence addresses the evidence’s effect of inducing belief.”
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25 (citation
omitted). “In other words, a reviewing court asks whose evidence is more persuasive --
the state’s or the defendant’s?” Id. The reviewing court must consider all the evidence
in the record, the reasonable inferences, and the credibility of the witnesses, to
determine whether, “in resolving conflicts in the evidence, the [trier of fact] clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶59} “Since there must be sufficient evidence to take a case to the jury, it
follows that ‘a finding that a conviction is supported by the weight of the evidence
necessarily must include a finding of sufficiency.’” (Emphasis sic.) Willoughby v.
Wutchiett, 11th Dist. No. 2002-L-165, 2004-Ohio-1177, ¶ 8, quoting State v. Roberts,
9th Dist. No. 96CA006462, 1997 Ohio App. LEXIS 4255, *5 (Sept. 17, 1997); State v.
Seijo, 11th Dist. No. 2011-A-0011, 2012-Ohio-645, ¶ 45.
{¶60} In order to convict Carr of Operating a Vehicle Under the Influence of
Alcohol, the State was required to prove, beyond a reasonable doubt, that he was
“operat[ing] any vehicle” while he was “under the influence of alcohol, a drug of abuse,
or a combination of them.” R.C. 4511.19(A)(1)(a).
18
{¶61} Initially, it is important to note that since the trial court properly admitted
the results of the blood sample tested by the Lake County Crime Lab, this evidence will
be considered for the purpose of determining whether Carr’s conviction was supported
by the evidence.
{¶62} Carr does not dispute the element related to whether he was operating a
vehicle but only whether he was “under the influence” of alcohol. We find that the
evidence in the record supports Carr’s conviction for OVI. The evidence showed that
Carr was witnessed by several individuals, including Hazen, Stark, and Wessler, driving
at a very high rate of speed, driving erratically, and causing the car accident. Wessler
explained that Carr was rapidly shifting lanes and causing the tail of the car to “hook.”
In addition to the evidence of Carr’s dangerous driving, Officer Neath testified that there
was the strong smell of alcohol on Carr’s breath, he had slurred speech, he acted
confused, claimed to be unaware of the accident occurring, and admitted to having a
glass of wine.
{¶63} In addition to the testimony of witnesses who observed the foregoing
behaviors of Carr exhibiting signs of intoxication, the testimony of Rohde also
established that Carr’s blood alcohol level from the evidentiary blood draw was .202,
well above the legal limit. Rohde testified that, to a reasonable degree of scientific
certainty, an individual’s ability to operate a motor vehicle would be “appreciably
impaired” based on the BAC of .202, since he would have a slower reaction time. When
considering all of the evidence together, the weight of this evidence supports a finding
that Carr was Operating a Vehicle Under the Influence and, therefore, his conviction is
supported by sufficient evidence to find him guilty beyond a reasonable doubt. See
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State v. Lewis, 11th Dist. No. 2009-L-138, 2010-Ohio-4288, ¶ 62-64 (where appellant
was driving a vehicle that had been observed swerving, crashing into another car, and
police officers testified that the defendant’s breath smelled of alcohol, his speech was
slurred, his eyes were bloodshot, and he seemed confused, the jury could have found
him guilty of OVI beyond a reasonable doubt); State v. Urso, 195 Ohio App.3d 665,
2011-Ohio-4702, 961 N.E.2d 689, ¶ 96-101 (11th Dist.) (where there was evidence of
erratic driving, a strong odor of alcohol in defendant’s vehicle, beer cans in the vehicle,
the defendant had slurred speech, difficulty standing, and a BAC of .286, defendant’s
conviction was supported by the weight of the evidence).
{¶64} Regarding the issue of the lack of field sobriety tests, Carr asserts that the
failure to administer such tests renders the convictions insufficient and against the
weight of the evidence. However, convictions for OVI have been upheld by this court in
the absence of field sobriety tests. See Id. at ¶ 101 (conviction for OVI upheld as
supported by the weight of the evidence in the absence of field sobriety test results
where police did not feel it would be safe to perform such tests due to the defendant’s
intoxicated condition); State v. Fresenko, 11th Dist. No. 92-L-134, 1993 Ohio App.
LEXIS 2975, *8 (June 11, 1993) (where, due to appellant’s request to go to the hospital,
no field sobriety tests were performed, the totality of circumstances still supported the
trial court's finding of guilt). In the present case, since Officer Neath testified that he
was unable to perform the field sobriety tests due to Carr’s hospitalization, and the
totality of circumstances supported a conviction, we cannot find that the lack of such
tests in the present matter renders Carr’s conviction invalid.
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{¶65} While Carr argues that the hospital blood test (not the evidentiary sample
tested by Rohde) was not proven to be in compliance with the Administrative Code
requirements for conducting a blood draw or testing, because the chain of custody,
labeling, and preservation of the sample were not proven, we note that even if it was not
taken in compliance, there is still sufficient evidence, as outlined above, to find Carr
guilty beyond a reasonable doubt. In addition, regardless of the Administrative Code
provisions, the admission of the blood sample was proper under R.C. 4511.19(D)(1)(a).
It states that “[i]n any criminal prosecution * * * for a violation of division (A)(1)(a) of this
section or for an equivalent offense that is vehicle-related, the result of any test of any
blood or urine withdrawn and analyzed at any health care provider * * * may be admitted
with expert testimony to be considered with any other relevant and competent evidence
in determining the guilt or innocence of the defendant.” Courts have noted that this
statute allows admission of blood tested by hospitals, even if such a test does not
comply with the Administrative Code, in similar circumstances, where a defendant was
transported to the hospital after an accident and underwent a non-forensic, medical
blood test. State v. Mendoza, 6th Dist. No. WD-10-008, 2011-Ohio-1971, ¶ 19; State v.
Davenport, 12th Dist. No. CA2008-04-011, 2009-Ohio-557, ¶ 16 (the State’s failure to
prove substantial compliance with the Administrative Code regulations with respect to
an established chain of custody and the preservation and labeling of his blood sample,
is not applicable when a blood draw was conducted by the hospital). Since the present
case involves an offense under R.C. 4511.19(A)(1)(a), the test occurred at a hospital,
and was submitted with the testimony of Nurse Berman and Rohde about the methods
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used to take the sample and used by the hospital to test such a sample, it was
admissible under R.C. 4511.19(D)(1)(a).
{¶66} The second assignment of error is without merit.
{¶67} In his third assignment of error, Carr asserts that the trial court improperly
denied his Crim.R. 29 motion to dismiss the Driving Under Suspension charge, since
Carr did not have knowledge that his license was suspended on the date of the
accident. He asserts that the State failed to show that he was given notice of the
suspension, since the only witness that testified regarding the notice did not have
personal knowledge of its mailing. In addition, Carr argues that his father informed him
that he resolved the suspension, and, therefore, Carr had a “good faith belief” that his
license was not suspended.
{¶68} Pursuant to 4510.11(A), “no person whose driver’s * * * license * * * has
been suspended under any provision of the Revised Code, * * * shall operate any motor
vehicle upon the public roads and highways or upon any public or private property used
by the public for purposes of vehicular travel or parking within this state during the
period of suspension unless the person is granted limited driving privileges.”
{¶69} This court has held that “notice of a suspension is an inferred element of a
driving under suspension charge.” State v. Heiney, 11th Dist. No. 2006-P-0074, 2007-
Ohio-1200, ¶ 15. “This is because ‘it would be fundamentally unfair to convict a
defendant for driving while under suspension when that person has not been given
notice of the suspension.’” Id., citing State v. Roy, 3rd Dist. No. 2-99-27, 2000 Ohio
App. LEXIS 361, *5 (Feb. 4, 2000), citing State v. Gilbo, 96 Ohio App.3d 332, 338, 645
N.E.2d 69 (2nd Dist.1994). “[O]ne should not be convicted of that offense when he or
22
she has no way of knowing that his or her operator’s license has been suspended.”
State v. Peer, 11th Dist. No. 98-T-0179, 1999 Ohio App. LEXIS 5774, *6 (Dec. 3, 1999),
citing Gilbo at 338.
{¶70} “[W]hile notice is required, the state does not have to prove ‘actual
notice.’” Heiney at ¶ 16; Peer at *6. Instead, notice is complete upon deposit of the
notice with the postal service for mailing to the driver’s last known address via regular
mail. Heiney at ¶ 16.
{¶71} In the present case, Carr disputes his personal knowledge of his license
suspension. However, the testimony of Jones shows that the BMV had a copy of the
notice of suspension mailed to Carr. Moreover, Carr’s father, Ray, testified that he
personally saw the notice of suspension, which he received from Carr while helping
Carr take care of financial matters. Ray also paid the reinstatement fee to the state of
Ohio on October 4, 2010, prior to the date of the accident, which would make it likely
that the notice was received by Carr, informing him of the need to pay such a fee. In
fact, Ray testified that he paid the reinstatement fee to the Ohio BMV in response to the
notice of suspension mailed to Carr. From the foregoing evidence, it can be concluded
that the letter was both mailed to Carr and received by him.
{¶72} Even in light of the foregoing, Carr argues that since his father told him the
suspension was taken care of, he did not have actual knowledge that his license was
suspended at the time of the accident. However, as noted above, there is no
requirement that an individual has actual knowledge of suspension but instead just that
notice is mailed to the driver, which occurred in the present case. The fact that Carr
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failed to remain apprised of his own affairs and ensure that his suspension was lifted is
not an excuse and this argument is not supported by the case law.
{¶73} Carr also argues that the BMV failed to comply with Ohio Administrative
Code 4501:1-10-02, by failing to prove the date of mailing of the notice. Ohio
Adm.Code 4501:1-10-02(B) (the BMV must maintain a file of every notice sent, which
contains an identifying number for the notice along with the date of delivery to the
United States Postal Service that can be verified by a “‘round stamp’ or some similar
evidence of the date”). Ohio Adm.Code 4501:1-10-02(E) states that “[i]n any
proceeding challenging the method of written notice or the proof of mailing for any
particular order, the person making the challenge shall establish affirmatively that the
bureau of motor vehicles failed to mail the notice * * * in compliance with this rule and
rule 4501:1-10-01 of the Administrative Code.”
{¶74} While there was some question as to the date of the mailing of the notice,
the copy of the notice provided by the BMV was dated as being sent September 1,
2010. Convictions for DUS have been upheld as compliant with 4501:1-10-01 in similar
circumstances. In Peer, the court found that where the State, through the BMV,
presented a copy of the printout of the notice of suspension asserted to have been
mailed to the appellant’s last known address and there was nothing in the record to
indicate that notice was not sent to appellant, there was no violation of the
administrative code. 1999 Ohio App. LEXIS 5774, at *9. See also State v. Acord, 2nd
Dist. No. 16185, 1997 Ohio App. LEXIS 2176, *10 (May 23, 1997), citing Gilbo, 96 Ohio
App.3d at 339, 645 N.E2d 69 (the conviction for Driving Under Suspension was
supported by the evidence and not in violation of the Administrative Code when “a copy
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of a properly addressed notice of suspension in the defendant’s BMV file, without any
indication that notice was not sent or that it was returned undelivered” was presented by
the State, because it supported a finding that appellant received notice that his license
was suspended). In the present matter, the BMV presented a copy of the dated notice
that was sent to Carr and he failed to present any evidence that he did not receive the
notice. In fact, his own witness, Ray, indicated that Carr did receive the notice mailed
by the BMV. Since all of the evidence presented supported a finding that Carr received
the notice, we cannot find a basis for reversing his conviction due to a lack of notice or
knowledge of the license suspension.
{¶75} The third assignment of error is without merit.
{¶76} Based on the foregoing, the judgment of the Lake County Court of
Common Pleas, denying Carr’s Motion to Suppress and finding him guilty of two counts
of Aggravated Vehicular Assault, one count of Vehicular Assault, two counts of
Operating a Vehicle Under the Influence of Alcohol, and one count of Driving Under
Suspension, is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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