[Cite as State v. Lawrence,
2015-Ohio-3906.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
TERESA L. LAWRENCE : Case No. 15 CAA 01 0010
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 14 CR I 02 0066
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: September 23, 2015
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ANDREW M. BIGLER TODD A. WORKMAN
140 North Sandusky Street P.O. Box 687
3rd Floor Delaware, OH 43015
Delaware, OH 43015
Delaware County, Case No. 15 CAA 01 0010 2
Farmer, J.
{¶1} On September 22, 2013, Ohio State Highway Patrol Trooper Ashley Elliott
was dispatched to a car accident. Upon arrival, Trooper Ashley found a two-vehicle
crash and learned that one of the drivers, appellee, Teresa Lawrence, was being
transported to an emergency care center. While speaking with appellee at the care
center, Trooper Elliott detected a strong odor of alcohol on her person, and observed
glassy, bloodshot eyes. Appellee also admitted to drinking prior to the crash. Trooper
Elliott conducted a field sobriety test, read appellee her Miranda rights, and asked
appellee to submit to a blood test. Appellee signed the consent form.
{¶2} On February 21, 2014, the Delaware County Grand Jury indicted appellee
on one count of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), and
two counts of driving a motor vehicle while under the influence of alcohol in violation of
R.C. 4511.19(A)(1)(a) and (f).
{¶3} On May 16, 2014, appellee filed a motion to suppress, claiming, among
other things, an involuntary consent because she had never been placed under arrest.
Hearings were held on September 26, and October 27, 2014. By judgment entry filed
January 23, 2015, the trial court granted the motion and suppressed the results of the
blood draw, finding no evidence of a lawful arrest.
{¶4} Appellant, the state of Ohio, filed an appeal and this matter is now before
this court for consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S
MOTION TO SUPPRESS."
Delaware County, Case No. 15 CAA 01 0010 3
I
{¶6} Appellant claims the trial court erred in granting appellee's motion to
suppress. We agree.
{¶7} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein,
73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger,
86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
v. Williams,
86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this type of claim, an appellate court must independently determine, without deference
to the trial court's conclusion, whether the facts meet the appropriate legal standard in
any given case. State v. Curry,
95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor,
85
Ohio App.3d 623 (4th Dist.1993); Guysinger.
{¶8} Appellant argues the trial court "applied the incorrect law or, in the
alternative, incorrectly applied the facts to the appropriate law." Appellant's Brief at 6.
{¶9} R.C. 4511.191(A)(2) applies in this case and states the following:
Delaware County, Case No. 15 CAA 01 0010 4
Any person who operates a vehicle, streetcar, or trackless trolley
upon a highway or any public or private property used by the public for
vehicular travel or parking within this state or who is in physical control of
a vehicle, streetcar, or trackless trolley shall be deemed to have given
consent to a chemical test or tests of the person's whole blood, blood
serum or plasma, breath, or urine to determine the alcohol, drug of abuse,
controlled substance, metabolite of a controlled substance, or combination
content of the person's whole blood, blood serum or plasma, breath, or
urine if arrested for a violation of division (A) or (B) of section 4511.19 of
the Revised Code, section 4511.194 of the Revised Code or a
substantially equivalent municipal ordinance, or a municipal OVI
ordinance. (Emphasis added.)
{¶10} In its January 23, 2015 judgment entry denying the motion to suppress,
the trial court found the following facts: Trooper Elliott arrived on the scene of the
accident when EMS was already present; appellee was transported to an emergency
care center; while speaking with appellee at the care center, Trooper Elliott detected a
strong odor of alcohol on her person and observed glassy, bloodshot eyes; appellee
admitted to consuming alcohol prior to the accident; Trooper Elliott administered the
HGN test and found six clues of impairment; Trooper Elliott read appellee her Miranda
rights and the BMV 2255 implied consent form. T. at 76-78, 80-81. The trial court then
concluded the following:
Delaware County, Case No. 15 CAA 01 0010 5
The officer says she placed the Defendant under arrest. However,
there are no facts in this record that the trooper did anymore than read the
2255 form to the Defendant and the Defendant signed the form.
The Trooper had followed the Defendant to Westerville Medical
where the Defendant was in a typical hospital room sitting up on the bed.
That is where the Trooper conducted the HGN test. The officer's report
says the Defendant was not charged. The Trooper admits that the
Defendant had no significant medical issues or injuries and was released
shortly after the blood draw. The Defendant wasn't cited. The Trooper did
nothing to seize the Defendant's body nor restrain her movement.
{¶11} The trial court determined appellant was not lawfully arrested, as there
"was never an intent to arrest, no actual or constructive seizure of the Defendant and no
evidence that the Defendant thought she was under arrest." In coming to this
conclusion, the trial court cited this court's opinion in State v. Kirschner, 5th Dist. Stark
No. 2001CA00107, 2001-Ohio-1915, *2, wherein this court stated: "Arrest occurs when
four elements are present: (1) an intent to arrest, (2) under real or pretended authority,
(3) accompanied by actual or constructive seizure or detention of the person, and (4)
which is so understood by the person arrested." The Kirschner opinion, quoting from
State v. Rice,
129 Ohio App.3d 91, 98 (7th Dist.1998), joined our brethren from the
Seventh District in holding "a valid arrest must precede the seizure of a bodily
substance, including a blood draw, and must precede an implied consent given based
upon Form 2255." Judge William B. Hoffman dissented, stating at *3, "In determining
Delaware County, Case No. 15 CAA 01 0010 6
when a person is arrested, a reviewing court should ask, in view of all the
circumstances surrounding the incident, would a reasonable person believe he or she
was not free to leave." Judge Hoffman continued:
The officer's subjective belief as to the status of appellant’s custody
does not control our decision. The fact Deputy Garrick did not intend to
take actual physical custody of appellant after appellant had been
transported to the hospital, does not negate the constructive seizure/arrest
of appellant which occurred prior to his transport to the hospital. Likewise,
the fact Deputy Garrick elected to issue a summons at the hospital rather
than take actual physical custody of appellant does not negate his
constructive seizure/arrest which occurred prior to his transport.
{¶12} In State v. May, 5th Dist. Morrow No. 2010 CA 1, 2010-Ohio-4594, ¶ 18-
23, this court looked to whether there was an "intent to arrest" and a "constructive
seizure" of the defendant:
The trial court in the case sub judice declined to suppress the blood
draw on the basis that Trooper Holloway had the "intent to arrest"
appellant and that there had been a "constructive seizure" of appellant.
Judgment Entry at 4. The transcript of the suppression reveals that
Holloway himself recalled that he had repeatedly told appellant at the
Delaware County, Case No. 15 CAA 01 0010 7
emergency room that he was "free to go." Ultimately, however, Holloway
recalled the following interaction with appellant:
"A. I asked him if he understood his Miranda rights again. Did you
understand those? He advised he did. I advised him that he was free to
go. I advised him he was under arrest, but he is not going to be under a
custodial arrest. I'm not going to physically place him under arrest at the
hospital and handcuff him and take him out. He's - - I read him the BMV
2255. He advised he understood the consequences of the test and
refusal of it. I asked him to submit to a blood test.
"Q. And did he agree to do so?
"A. Yes, ma'am, he did." Tr. at 53.
In Ohio, the General Assembly has established the statutory
prerequisite of an actual arrest for a warrantless blood draw in OVI cases.
Although the trooper’s complete colloquy with appellant at the hospital fell
short of being unequivocal, we find the State's action in obtaining
appellant's blood sample after the constructive arrest comported with R.C.
4511.191(A)(2) and was reasonable under the Fourth Amendment. The
trial court therefore correctly decided the ultimate issue raised in
appellant's motion to suppress.
We hold the trial court did not err in denying the motion to suppress
under the facts and circumstances of this case.
Delaware County, Case No. 15 CAA 01 0010 8
{¶13} We find the May opinion to be consistent with Judge Hoffman's dissent in
Kirschner.
{¶14} In the case sub judice, Trooper Elliott testified she administered the HGN
test to appellee and found six clues of impairment. T. at 78, 80-81. Trooper Elliott then
read appellee her Miranda rights and the BMV 2255 implied consent form which
specifically states on the first line, " 'You are now under arrest for***operating a vehicle
under the influence***.' " T. at 81, 93; State's Exhibit 4A. Trooper Elliott stated she
placed appellee under arrest. T. at 81. Appellee consented to the blood draw and
signed the form. T. at 81-82. Trooper Elliott explained appellee was under arrest at the
time, but "obviously she couldn't go with me because she was in the hospital." T. at 89.
Trooper Elliott stated aside from reading the form to appellee, she told her "there would
be charges pending later on." T. at 91.
{¶15} The nurse present in appellant's room testified that the trooper spoke to
appellee about her rights and the consent to draw blood. T. at 20. The nurse observed
the trooper hand appellee a form and observed appellee sign it. Id.
{¶16} As for appellant's challenge to the facts found by the trial court, we find the
record supports the trial court's findings. However, in its judgment entry, the trial court
did not consider or discuss the relative impact of the "you are under arrest" language
included in the first line of the BMV 2255 form. Instead, the trial court relied on the lack
of evidence as to why appellee was not physically secured, cited, and placed in jail.
Although the trial court relied on the absence of such evidence, the trial court
disregarded the failure to discuss appellee's condition at the Westerville Emergency
Care Center, other than to note that appellee "was in a typical hospital room sitting up
Delaware County, Case No. 15 CAA 01 0010 9
on the bed" and "the Trooper admits that the Defendant had no significant medical
issues or injuries and was released shortly after the blood draw." At the time of her
interaction with appellee at the care center, Trooper Elliott could not have known the full
extent of appellee's injuries or when she would be released, as she was in the process
of receiving medical care. Without evidence to support it, the trial court concluded
appellee was available to be arrested.
{¶17} Despite the lack of evidence, the trial court granted the motion to suppress
by finding appellee was not lawfully arrested for purposes of R.C. 4511.191(A)(2), cited
above. Therefore, the gravamen of this case is whether the language of the BMV 2255
form, coupled with the facts of this case, is sufficient to fulfill the requirements of R.C.
4511.191(A)(2). Given Trooper Elliott's testimony and the facts cited above, we find an
"intent to arrest" and the "constructive seizure" of appellant. Based upon our decision in
May, supra, we find the language contained in the BMV 2255 form, coupled with the
"intent to arrest" and "constructive seizure" of appellant, to be sufficient to meet the
requirements of being "under arrest" for purposes of the implied consent statute. See
also, State v. Hollis, 5th Dist. Richland No. 12CA34, 2013-Ohio-2586.
{¶18} Upon review, we find the trial court erred in granting the motion to
suppress on the finding that appellee was not lawfully arrested.
{¶19} The sole assignment of error is granted.
Delaware County, Case No. 15 CAA 01 0010 10
{¶20} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby reversed, and the matter is remanded to said court for further proceedings
consistent with this opinion.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
SGF/sg 821
