[Cite as State v. Blair,
2023-Ohio-291.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 22AP0005
TIMOTHY BLAIR :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Morgan County
Court of Common Pleas, Case No.
20CR0034
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 30, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK J. HOWDYSHELL EVAN WAGNER
19 East Main Street 3970 Brown Park Drive, Ste. B
McConnelsville, OH 43756 Hilliard, OH 43026
Morgan County, Case No. 22AP0005 2
Gwin, P.J.
{¶1} Appellant, Timothy Blair [“Blair”] appeals the January 25, 2022 judgment
entry of the Morgan County Court of Common Pleas, Morgan County, Ohio overruling his
motion to suppress.
Facts and Procedural History
{¶2} On November 10, 2020, the Morgan County Grand Jury returned an
Indictment charging Blair with one count of Driving While Under the Influence of Alcohol in
violation of R.C. 4511.19(A)(1)(a), a felony of the third degree as a result of Blair having
been convicted of the same or similar offense as a felony on August 3, 2018 in Noble
County Court of Common Pleas, Case No. 217-2090. [Docket No. 1].
{¶3} On November 23, 2021, trial counsel for Blair filed a motion to suppress
evidence. On December 7, 2021, the trial court began the evidentiary hearing on the
motion. The suppression hearing was concluded on January 24, 2022. The following
evidence was presented during the suppression hearing.
{¶4} On August 22, 2020, Ohio State Highway Patrol Trooper Jared Miller
received a report from dispatch of a blue pickup truck sitting in the traveled portion of the
roadway on the opposite side of a rural county road, Center Bend Road, also known as
Township Road 939, in Center Township, Morgan County, Ohio. It was reported that a
man was passed out behind the wheel of the truck. 1T. at 7.
{¶5} Trooper Miller testified he arrived on the scene at approximately 15:33
hours, or 3:33 p.m. 1T. at 7; 2T. at 60. Trooper Miller initially approached Blair’s truck
from the passenger side and observed the window was down, Blair appeared to be
asleep and breathing normally. Trooper Miller attempted to run the vehicle's plate
Morgan County, Case No. 22AP0005 3
numbers to identify the person behind the wheel. However, at this point, Trooper
Miller was having communication issues with dispatch due to the remoteness of the
area, and therefore, he could not obtain an identification from dispatch.
{¶6} Eventually, dispatch informed Trooper Miller that the license plate did not
belong to the blue pick-up truck. Trooper Miller testified he then approached the vehicle
from the driver's side. Blair woke up, and Miller observed unopened cans of Natural
Light beer in the vehicle. Trooper Miller testified that the cans were wet with
condensation. Trooper Miller further found a bag of groceries with a receipt from Save
A Lot with a time stamp of 13:09 or 1:09 p.m. 2T. at 55; State’s Exhibit 1. Trooper
Miller then asked Blair where he was coming from, and testified, “He said he was just coming
out from out the road.” 1T. at 12. Trooper Miller testified that this was “a little bit” a
satisfactory answer. Id.
{¶7} Trooper Miller asked Blair what he was doing. Blair told Trooper Miller he
was taking a nap. Trooper Miller was able to see a can of alcohol that was open near the
driver's side floorboard that caused the dust on the floorboard to turn into a muddy paste.
Trooper Miller reported he observed Blair to have bloodshot and glassy eyes. He further
testified he could smell the odor of an alcoholic beverage inside the truck. Trooper Miller
had Blair exit the truck. Trooper Miller was able to smell the odor of an alcoholic beverage
emanating from Blair’s person. The encounter was recorded by the trooper’s cruiser
camera.
{¶8} Blair’s driver’s license was under suspension for a prior OVI, so Blair had
only a state identification card on his person. 1T. at 18. After being placed in the trooper’s
Morgan County, Case No. 22AP0005 4
cruiser and being advised of his Miranda rights, Blair refused the trooper’s request to
perform the standardized field sobriety tests. 2T. at 71-72.
{¶9} Although no key to the vehicle was found, Trooper Miller confirmed that the
truck was able to be started without the key.
{¶10} Trooper Miller transported Blair to the Morgan County Sheriff's Office for
chemical testing. Blair submitted to a chemical urinalysis screen at 18:30 hours, or 6:30
p.m.
{¶11} By Judgment Entry filed January 22, 2022, the trial court overruled Blair’s
motion to suppress ruling that Trooper Blair had probable cause to arrest Blair for OVI and
driving under a suspended license.
{¶12} On February 17, 2022, Blair pled no contest to the sole count of the
indictment. The trial court accepted Blair's plea of no contest and found Blair guilty of
violating R.C. 4511.19(A)(1)(a). The trial court deferred sentencing and ordered that
a Pre-sentence Investigation Report be prepared.
{¶13} On April 19, 2022, the trial court sentenced Blair to a twenty-four-month
prison sentence, a two thousand dollar fine, and a three-year operator's license
suspension.
Assignment of Error
{¶14} Blair raises one Assignment of Error,
{¶15} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY WAY OF
OVERRULING THE DEFENDANT-APPELLANT'S MOTION TO SUPPRESS EVIDENCE
IN WHOLE OR IN PART.”
Morgan County, Case No. 22AP0005 5
Law and Analysis
{¶16} In his sole assignment of error, Blair contends that the trial court erred in
finding that Trooper Miller had probable cause to arrest Blair for driving under the influence
of alcohol.
Standard of Appellate Review
{¶17} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155,
2003-Ohio-5372,
797
N.E.2d 71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role
of trier of fact and is in the best position to resolve questions of fact and to evaluate
witness credibility. See State v. Dunlap,
73 Ohio St.3d 308,314,
1995-Ohio-243,
652
N.E.2d 988; State v. Fanning,
1 Ohio St.3d 19, 20,
437 N.E.2d 583 (1982).
Accordingly, a reviewing court must defer to the trial court’s factual findings if
competent, credible evidence exists to support those findings. See
Burnside, supra;
Dunlap, supra; State v. Long,
127 Ohio App.3d 328, 332,
713 N.E.2d 1 (4th Dist.
1998); State v. Medcalf,
111 Ohio App.3d 142,
675 N.E.2d 1268 (4th Dist. 1996).
However, once this Court has accepted those facts as true, it must independently
determine as a matter of law whether the trial court met the applicable legal standard.
See
Burnside, supra, citing State v. McNamara,
124 Ohio App.3d 706,
707 N.E.2d
539 (4th Dist. 1997); See, generally, United States v. Arvizu,
534 U.S. 266,
122 S.Ct.
744,
151 L.Ed.2d 740 (2002); Ornelas v. United States,
517 U.S. 690,
116 S.Ct. 1657,
134 L.Ed.2d 911 (1996). That is, the application of the law to the trial court’s findings
of fact is subject to a de novo standard of review
Ornelas, supra. Moreover, due weight
Morgan County, Case No. 22AP0005 6
should be given “to inferences drawn from those facts by resident judges and local
law enforcement officers.”
Ornelas, supra at 698,
116 S.Ct. at 1663.
Issue for appellate review: Whether the trooper had probable cause to arrest
Blair for driving under the influence of alcohol
Blair admitted that he drove the truck
{¶18} In the case at bar, Blair was indicted for a felony OVI as a violation of R.C.
4511.19(A)(1)(a) [“under the influence”].
{¶19} R.C. 4511.19 provides in relevant part,
(A)(1) No person shall operate any vehicle, streetcar, or trackless
trolley within this state, if, at the time of the operation, any of the following
apply:
(a) The person is under the influence of alcohol, a drug of abuse, or
a combination of them.
Blair admitted to Trooper Miller that he, Blair, had driven the truck to the location
where the trooper found it parked on the traveled portion of the wrong side of the roadway.
1T. at 12.
Warrantless arrest
{¶20} A warrantless arrest is constitutionally valid if: “[a]t the moment the arrest
was made, the officers had probable cause to make it-whether at that moment the facts
and circumstances within their knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man in believing that the … [individual]
had committed or was committing an offense.” State v. Heston, 29 Ohio St.2d 152, 155–
156,
280 N.E.2d 376(1972), quoting Beck v. Ohio,
379 U.S. 89, 91,
85 S.Ct. 223, 13
Morgan County, Case No. 22AP0005
7
L.Ed.2d 142(1964). “The principal components of a determination of reasonable suspicion
or probable cause will be the events which occurred leading up to the stop or search, and
then the decision whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to reasonable suspicion or to probable
cause.” Ornelas v. United States,
517 U.S. 690, 696,
116 S.Ct. 1657, 1661–1162(1996).
A police officer may draw inferences based on his own experience in deciding whether
probable cause exists. See, e.g., United States v. Ortiz,
422 U.S. 891, 897,
95 S.Ct. 2585,
2589(1975).
{¶21} As Justice Cook noted,
[P]robable cause” is a term of art. As early as 1813, the United
States Supreme Court noted that “the term ‘probable cause’ … has a fixed
and well-known meaning.” Locke v. United States (1813), 11 U.S. (7
Cranch) 339, 348,
3 L.Ed. 364, 367. A finding of probable cause requires
more than a mere suspicion of guilt but less evidence than that required to
sustain a conviction. See Brinegar v. United States (1949), 338 U.S. 160,
175,
69 S.Ct. 1302, 1310–1311,
93 L.Ed. 1879, 1890. See, also,
Melanowski v. Judy (1921), 102 Ohio St. 153, 156,
131 N.E. 360, 361, citing
Ash v. Marlow (1851), 20 Ohio 119,
1851 WL 16, paragraph one of the
syllabus (defining probable cause as “[a] reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to warrant a
cautious man in the belief that the person accused is guilty of the offense
with which he is charged”). More recently, we stated that probable cause is
“a term that has been defined as ‘“a reasonable ground for belief of guilt.”’”
Morgan County, Case No. 22AP0005 8
State v. Moore (2000), 90 Ohio St.3d 47, 49,
734 N.E.2d 804, 807, quoting
Carroll v. United States (1925), 267 U.S. 132, 161,
45 S.Ct. 280, 288,
69
L.Ed. 543, 555.
State v. Scott,
92 Ohio St.3d 1, 8,
748 N.E.2d 11(2001) (Cook, J., concurring).
{¶22} The totality of the facts and circumstances can support a finding of probable
cause to arrest even where no field sobriety tests were administered. State v. Homan, 89
Ohio St.3d 421,
732 N.E.2d 952(2000), superseded by statute on other grounds as stated
in State v. Boczar,
113 Ohio St.3d 148,
863 N.E.2d 155, 2007–Ohio–1251. In Homan, the
facts which supported a finding of probable cause were: red and glassy eyes, breath which
smelled of alcohol, erratic driving and an admission that the suspect had consumed
alcohol. In State v. Lominack, 5th Dist. Stark No. 2012CA00213,
2013-Ohio-2678, this
Court observed,
The case law is in agreement that probable cause to arrest may exist,
even without field sobriety tests results, if supported by such factors as:
evidence that the defendant caused an automobile accident; a strong odor
of alcohol emanating from the defendant; an admission by the defendant
that he or she was recently drinking alcohol; and other indicia of intoxication,
such as red eyes, slurred speech, and difficulty walking. Oregon v.
Szakovits, 32 Ohio St.2d 271,
291 N.E.2d 742(1972); Fairfield v. Regner,
23 Ohio App.3d 79, 84,
491 N.E.2d 333(12th Dist. 1985); State v. Bernard,
20 Ohio App.3d 375, 376,
485 N.E.2d 783(9th Dist. 1985); Westlake v.
Vilfroy, 11 Ohio App.3d 26, 27,
462 N.E.2d 1241(8th Dist. 1983); State v.
Judy, 5th Dist. No. 2007–CAC–120069, 2008–Ohio–4520, ¶ 27.
Morgan County, Case No. 22AP0005 9
Lominack, ¶ 33.
{¶23} Furthermore, a police officer does not have to observe poor driving
performance in order to effect an arrest for driving under the influence of alcohol if all the
facts and circumstances lead to the conclusion that the driver was impaired. See State v.
Harrop, 5th Dist. No. CT2000–0026 (July 2, 2001), citing Atwell v. State, 35 Ohio App.2d
221,
301 N.E.2d 709 (8th Dist. 1973); State v. Hollis, 5th Dist. Richland No. 12CA34, 2013-
Ohio-2586, ¶ 28.
{¶24} In the case at bar, the probable cause to arrest Blair for OVI was supported
by the trooper’s observation of glassy eyes, odor of alcohol, open and unopened cans of
beer in the passenger compartment of the truck, Blair being slumped over the steering
wheel at the time of the trooper’s arrival, and the position of the truck in the traveled portion
on the wrong side of the roadway. Blair admitted that he had driven the truck to the location
where it was found. 1T. at 12. Trooper Miller confirmed that the truck could be started
without the key.
Proscribed level of alcohol content in one's blood, breath, or urine
{¶25} Blair next argues that the results of his urine test are inadmissible because
the sample was not collected within three hours of his operation of the truck.
{¶26} At the outset we note that the indictment in the case at bar did not charge
Blair with a per se violation of R.C. 4511.19(A)(1)(e); rather the indictment specified only
“driving under the influence” in violation of R.C. 4511.19(A)(1)(a).
{¶27} As the Ohio Supreme Court stated, “we first noted that in 1983, the General
Assembly had amended R.C. 4511.19 to make ‘it illegal to operate a vehicle not only while
under the influence of alcohol, but also with a proscribed level of alcohol content in one's
Morgan County, Case No. 22AP0005 10
blood, breath, or urine.’ State v. Lucas, 40 Ohio St.3d 100, 103,
532 N.E.2d 130 (1988).
The effect of the General Assembly's amendment was to divide R.C. 4511.19 into two
classification of offenses: the offense of operating a vehicle while under the influence, and
the “per se” offense.” State v. Hassler,
115 Ohio St.3d 322,
2007-Ohio-4947,
875 N.E.2d
46, ¶10 [footnote omitted].
{¶28} Per se offenses make the blood-alcohol content an element of the offense.
The trier of fact must find only “that the defendant operated a vehicle … and that the
defendant's chemical test reading was at the proscribed level.” Newark v. Lucas, 40 Ohio
St.3d 100, 103,
532 N.E.2d 130(1988).
{¶29} In contrast, for “driving under the influence” in violation of R.C.
4511.19(A)(1)(a),
The amount of alcohol found as a result of the chemical testing of
bodily substances is only of secondary interest. See Taylor, Drunk Driving
Defense (2 Ed. 1986) 394, Section 6.0.1. The defendant's ability to
perceive, make judgments, coordinate movements, and safely operate a
vehicle is at issue in the prosecution of a defendant under such section. It
is the behavior of the defendant which is the crucial issue... The test results,
if probative, are merely considered in addition to all other evidence of
impaired driving in a prosecution for this offense.
Lucas, 40 Ohio St.3d at 104,
532 N.E.2d 130.
{¶30} In Lucas, the Ohio Supreme Court noted that a “per se” violation is
committed where the amount of alcohol in an individual's bodily substances exceeds the
proscribed statutory amount. Id. at 103,
532 N.E.2d 130. The court stressed that accuracy
Morgan County, Case No. 22AP0005 11
is critical and that allowing admission of chemical analyses of substances withdrawn after
the [three]-hour limit would cause “confusing, unreliable, and inconsistent verdicts.”
Id. at
104,
532 N.E.2d 130. Accordingly, the court held that in such situations, the results may
be admitted in evidence “only if the bodily substance is withdrawn within two [currently
three] hours of the time of the alleged violation.”
Id.
{¶31} However, test results derived from blood or urine that was withdrawn more
than three hours after an alleged violation of R.C. 4511.19(A) are not categorically
inadmissible. As one court has explained,
However, “a blood sample taken outside the time frame set out in
R.C. 4511.19(D) is admissible to prove that a person is under the influence
of alcohol as proscribed by R.C. 4511.19(A)(1)(a) …, provided that the
administrative requirements of R.C. 4511.19(D) are substantially complied
with and expert testimony is offered.” State v. Hassler, 115 Ohio St.3d 322,
2007-Ohio-4947, ¶19; see Lucas at paragraph two of the syllabus.
Therefore, the admissibility of test results of belatedly drawn blood depends
on the type of OVI that the results are being offered to prove, i.e., whether
the results are being offered to prove an under-the-influence OVI or a per
se OVI, the particular circumstances of the blood draw and subsequent
testing, and the availability of expert testimony.
State v. Robinson, 3rd Dist. Allen No. 1-19-79, 2020-Ohio-4880, ¶11; State v. Hollis, 5th
Dist. Richland No. 12CA34,
2013-Ohio-2586, ¶38. We find the same analysis would
apply to a urine draw.
Morgan County, Case No. 22AP0005 12
{¶32} In the case at bar, Blair did not allege either in his written motion to suppress
filed November 23, 2021 nor during the suppression hearing that the administrative
requirements of R.C. 4511.19(D) were not substantially complied with concerning the
collection or testing of his urine sample. Therefore, even if Blair’s urine was collected more
than three hours after the incident, it does not bar the admission of the evidence assuming
the state can offer expert testimony at trial. State v. Hassler, 115 Ohio St.3d 322, 2007-
Ohio-4947,
875 N.E.2d 46, ¶ 19.
{¶33} In any event, because Blair was not charged or convicted of a “per se”
offense, the test results are not necessary in order to find Blair guilty of “driving under the
influence” in violation of R.C. 4511.19(A)(1)(a).
Conclusion
{¶34} The evidence produced at the evidentiary hearing on Blair’s motion to
suppress supports the inference that Blair’s consumption of alcohol on the night in
question adversely affected his actions, reactions, conduct, movement or mental
processes or impaired his reactions to an appreciable degree, thereby lessening his ability
to operate his car on the night in question. Further, it was undisputed that Blair’s driver’s
license was suspended at the time he operated the truck.
{¶35} Trooper Miller’s testimony represents competent, credible evidence that
Blair was operating his vehicle while under the influence of alcohol. Therefore, Trooper
Miller had probable cause to arrest Blair for driving under the influence in violation of R.C.
4511.19(A)(1)(a), in addition to arresting Blair for driving under a suspended driver’s
license. Accordingly, the trial court did not err when it denied Blair’s motion to suppress
on the basis that Trooper Miller had probable cause to arrest Blair for driving under a
Morgan County, Case No. 22AP0005 13
suspended driver’s license and driving under the influence in violation of R.C.
4511.19(A)(1)(a).
{¶36} Blair did not challenge whether the administrative requirements of R.C.
4511.19(D) were substantially complied with concerning the collection or testing of his
urine sample. Therefore, the urine test results admissibility at trial will depend on whether
the state can offer expert testimony. Accordingly, the trial court correctly overruled Blair’s
motion to suppress the urine test results.
{¶37} Because Blair was not charged or convicted of a “per se” offense, the test
results are not necessary in order to find Blair guilty of “driving under the influence” in
violation of R.C. 4511.19(A)(1)(a).
{¶38} Blair’s sole Assignment of Error is overruled.
{¶39} The judgment of the Morgan County Court of Common pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur
