State v. Hawkins ( 2020 )

[Cite as State v. Hawkins, 2020-Ohio-3266.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 19 CA 43
JENNIFER HAWKINS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. 19 TRC 1284
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 8, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH M. SABO ANDREW T. SANDERSON
CITY of LANCASTER LAW DIRECTOR BURKETT & SANDERSON, INC.
MITCH HARDEN 738 East Main Street
ASSISTANT PROSECUTOR Lancaster, Ohio 43130
136 West Main Street, P.O. Box 1008
Lancaster, Ohio 43130
Fairfield County, Case No. 19 CA 43 2
Wise, J.
{¶1} Appellant Jennifer Hawkins appeals her conviction on one count of
Operating a Motor Vehicle While under the Influence of Alcohol, entered in the Fairfield
County Municipal Court following a plea of no contest.
{¶2} Appellee is State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On February 17, 2019, in Fairfield County, Ohio, Trooper Angle with the
Ohio State Highway Patrol conducted a traffic stop on a vehicle for failing to use its turn
signal prior to turning, as well as for having expired license plate tags. (Supp. T. at 8).
Upon making contact with the driver of the vehicle, Appellant Jennifer Hawkins, Trooper
Angle observed Appellant to have glassy and bloodshot eyes, slurred speech, and the
odor of an alcoholic beverage. Id. Appellant also admitted to consuming alcohol. Id.{¶4} Based on his initial observations, Trooper Angle had Appellant exit the
vehicle to perform standardized field sobriety tests. Id. Due to Appellant’s poor
performance on these field sobriety tests, as well as his other observations of impairment,
Trooper Angle placed Appellant under arrest for operating a motor vehicle while under
the influence of alcohol (hereinafter "OVI"). Id.{¶5} Trooper Angle then read Appellant the BMV 2255 Form, and, after being
explained the consequences for taking or refusing a chemical test, Appellant submitted
to a breath test. Id. After Appellant’s first breath test resulted in an invalid sample,
Appellant submitted to a second test, which resulted in a blood alcohol content
(hereinafter "BAC") of .132 grams of weight of alcohol per 210 liters of breath. Id.Fairfield County, Case No. 19 CA 43 3
{¶6} Appellant was ultimately charged with OVI under R.C. § 4511.19(A)(1)(a)
and R.C. § 4511.19(A)(1)(d), as well as a turn signal violation under R.C. § 4511.39.
{¶7} On February 26, 2019, Appellant appeared before the Fairfield County
Municipal Court, where she entered a plea of Not Guilty to the charges of OVI under
§4511.19(A)(1)(a), OVI Breath under §4511.19(A)(1)(d), and a turn signal violation under
§4511.39.
{¶8} On August 6, 2019, Appellant filed a Motion in Limine and Motion to
Suppress Evidence, arguing that her breath sample was not collected in accordance with
the applicable rules and regulations. Specifically, Appellant argued that law enforcement
did not substantially comply with approved methods when, after her first breath test
produced an invalid sample, an additional twenty-minute observation period was not
performed prior to conducting the second breath test. Id.
{¶9} On August 20, 2019, the State of Ohio filed its Reply to Defendant's
Supplemental Memorandum.
{¶10} Appellant and the State waived an oral hearing on the matter and asked the
trial court to issue its ruling based upon the briefs submitted by the parties, as well as the
following stipulated facts :
1. On or about, February 17, 2019, at 2:36 AM Jennifer Hawkins,
the defendant herein, did operate a motor vehicle in Fairfield County,
Ohio.
2. That officers of the Ohio Highway Patrol observed Ms. Hawkins
commit turn signal violations while operating the vehicle.
Fairfield County, Case No. 19 CA 43 4
3. That the officers were operating a marked police cruiser, were duly
appointed members of law enforcement with all the necessary training and
experience to hold their positions and were wearing the uniform on the day
when they encountered Ms. Hawkins.
4. That the officers properly effectuated a traffic stop of Ms. Hawkins
and, in the course of the same, developed probable cause to believe that
she was operating a motor vehicle under the influence of alcohol.
5. As a result, Ms. Hawkins was placed under arrest, transported
from the scene and asked to submit a sample of her breath for chemical
testing.
6. That the attached exhibit A shows the results of the chemical
testing of Ms. Hawkins related to this case.
7. All of this behavior occurred in Fairfield County, Ohio.
{¶11} By Judgment Entry filed August 22, 2019, the trial court denied Appellant’s
motion to suppress.
{¶12} On September 5, 2019, Appellant entered a plea of No Contest to the
charges.
{¶13} Appellant now appeals to this Court, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶14} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN ALLOWING
EVIDENCE OF THE DEFENDANT-APPELLANT’S PURPORTED BREATH ALCOHOL
CONTENT TO BE DEEMED ADMISSIBLE HEREIN.”
Fairfield County, Case No. 19 CA 43 5
I.
{¶15} In her sole assignment of error, Appellant argues the trial court erred in
denying her motion to suppress. We disagree.
Standard of Review
{¶16} 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 finding of fact.
Second, an appellant may argue the trial court failed to apply the appropriate test or
correct law to the findings of fact. Finally, 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d
1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v.
Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726.
{¶17} In the instant appeal, appellant's challenge of the trial court's ruling on her
motion to suppress is based on the third method. Accordingly, this Court must
independently determine, without deference to the trial court's conclusion, whether the
facts meet the appropriate legal standard in this case.
{¶18} Appellant's argument herein is predicated upon the BAC Verified Test
Report Form, issued by the Department of Health, which requires that a subject be
observed for twenty (20) minutes, prior to administration of the test, to prevent oral intake
of any materiel.
Fairfield County, Case No. 19 CA 43 6
{¶19} The sole purpose of the twenty minute observation period is to prevent the
oral intake of any material. Bolivar v. Dick, 76 Ohio St.3d 216, 218, 1996-Ohio-409; State
v. Steele (1977), 52 Ohio St.2d 187, 370 N.E.2d 740.
{¶20} Here, the initial testing of Appellant’s BAC returned an “invalid sample”
message.
{¶21} The BAC Datamaster Basic Operation Guide defines “invalid sample” as:
Invalid Sample. This message is seen only during a subject or
simulating test if conducted during the subject test mode. The instrument
has detected a negative going value during the test that is inconsistent with
the expected test progression. This can be caused by a subject blowing too
hard as saliva droplets can be forced through the mouthpiece and into the
sample chamber causing a somewhat unstable reading. It can also be
caused by the presence of mouth alcohol. See Section entitled ‘Datamaster
Sampling Systems.’ usually a retest of the subject after a short period will
result in a valid test.
{¶22} This Court has previously considered and rejected a suggestion that the
observation period restarts after an invalid sample. State v. Reiger, 5th Dist. Fairfield No.
02CA30, 2002-Ohio-6673; See also State v. Hagans, 5th Dist. Knox No. 02CA38, 2003-
Ohio-2703.
{¶23} In Reiger, supra, this Court held that an officer's failure to wait 20 minutes
before administering a second breath analysis test to a defendant who was arrested for
driving under the influence (DUI) did not invalidate second test's results, although both
Bureau of Alcohol and Drug Testing memorandum and test device guide recommended
Fairfield County, Case No. 19 CA 43 7
20-minute waiting period; state administrative code did not require a waiting period, and
first test's failure was caused by defendant's failure to blow into the machine rather than
by mouth alcohol. R.C. §4511.19(A)(1),(6).
{¶24} This Court noted that “the above language found in the memorandum and
operating guide is not found in the regulations promulgated by the Ohio Director of Health
and set forth in the Ohio Administrative Code relative to the use of the BAC Datamaster.
In the event of possible conflict or ambiguity between them, we believe the regulations as
embodied in the Ohio Administrative Code control. Though there may not have been strict
compliance with the memorandum or guide, we find there was strict compliance with the
regulations.” Id.
{¶25} By so finding, we note our decision is in accord with our colleagues from
the Twelfth District in State v. Bosier (Jul. 24, 2000), Clinton App. No. CA99-11-036,
unreported; the Fourth District in State v. Matlack (Nov. 2, 1995), Athens County App. No.
95CA1658, unreported (1995WL646355); the Sixth District in State v. Gigliotti (Dec. 22,
2000), Erie County App. No. E-99-081, unreported (2000WL1867265); and the Eighth
District in City of Rocky River v. Papandreas (Mar. 23, 2000), 2000WL 301080.
{¶26} Appellee introduced nothing to suggest that she did, in fact, ingest some
material during the 20 minute period. A mere assertion that ingestion during the 20 minute
period was hypothetically possible, without more, did not render the test results
inadmissible. State v. Raleigh, Licking App. No. 2007–CA–31, 2007-Ohio-5515, 2007 WL
2994237, at ¶ 51.
Fairfield County, Case No. 19 CA 43 8
{¶27} Appellant’s sole assignment of error is overruled.
{¶28} Accordingly the judgment of the Municipal Court of Fairfield County, Ohio,
is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/kw