State v. Schuster ( 2017 )

[Cite as State v. Schuster, 2017-Ohio-4115.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-05-097
: OPINION
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:
MICHELLE SCHUSTER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2015-07-1098
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Schreyer Thomas, LLP, H. Michele Thomas, 100 West Main Street, Eaton, Ohio 45320, for
defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Michelle Schuster, appeals a decision of the Butler
County Court of Common Pleas denying her motion to suppress. For the reasons detailed
below, we affirm the decision of the trial court.
{¶ 2} On April 22, 2015, electrical work was being conducted near the intersection of
Cox Road and Liberty Way in West Chester Township, Butler County, Ohio. At
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approximately 3:23 p.m., a motor vehicle operated by appellant crossed multiple lanes of
traffic and struck four electrical workers before crashing into an electrical truck. Appellant
and the four electrical workers were transported to a nearby hospital. One of the electrical
workers died from her injuries and the other three suffered serious physical harm. While at
the hospital, a law enforcement officer had a registered nurse withdraw a blood sample from
appellant. Testing of appellant's blood indicated that at the time of the accident she had
alprazolam, or Xanax, and marijuana in her system.
{¶ 3} Appellant was indicted on one count of aggravated vehicular homicide in
violation of R.C. 2903.06(A)(1), a felony of the second degree, one count of aggravated
vehicular homicide in violation of R.C. 2903.06(A)(2), a felony of the third degree, three
counts of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), felonies of the
third degree, three counts of vehicular assault in violation of R.C. 2903.08(A)(2)(b), felonies
of the fourth degree, and one count of operating a vehicle while under the influence of a drug
of abuse in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree.
{¶ 4} Appellant pled not guilty to the charges. Appellant then moved to suppress,
among other things, the blood-test results on the basis that the blood sample had not been
taken voluntarily or in compliance with R.C. 4511.191 or Ohio Adm.Code 3701-53-01 through
3701-53-10.1 A two-day hearing was held on appellant's motion, at which time the state
presented testimony from three law enforcement officers employed by the West Chester
Township Police Department, the nurse who withdrew appellant's blood sample, and two
forensic toxicologists who tested appellant's blood sample.
{¶ 5} Officer Jeff Newman testified that at the time of the accident, he was working a
1. Appellant's motion also sought to suppress from evidence statements she made to law enforcement, physical
evidence obtained by law enforcement, and "any observations and opinions of law enforcement" regarding her
sobriety and alcohol level. As appellant's arguments on appeal only raise issues involving the blood sample
taken at the hospital and the subsequent testing of the sample, we limit our discussion to the facts pertinent to
such issues.
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traffic detail at the intersection of Cox Road and Liberty Way. Newman had his back towards
Cox Road when he heard a "loud boom." He turned and saw four electrical workers "moving
in different direction through the air," one of the electrical trucks "shaking and moving," and
the black car that had struck the side of the electrical truck spin around. Newman explained
that although the black car had come to a stop, its engine was "racing at a real high speed"
as if it was "being revved up by somebody."
{¶ 6} Upon approaching the black car, Newman saw appellant, the driver, slumped
over "with her head off to the side." Newman attempted to talk to appellant, but she was
incoherent and was fading "in and out of consciousness." While trying to speak with
appellant, Newman noticed the smell of an alcoholic beverage coming from appellant's
vehicle. Newman did not place appellant under arrest at this time.
{¶ 7} Officer Steven Seitzman testified that he arrived at the scene of the accident
around 4:00 p.m. Upon his arrival, he was advised that appellant and the injured electrical
workers had been transported to a nearby hospital. He was also advised that there was "an
odor of an alcoholic beverage on the * * * at-fault driver."
{¶ 8} When Seitzman first arrived at West Chester Hospital's emergency room, the
first thing he heard was "screaming and yelling" coming from appellant's room. According to
Seitzman, the noise coming from appellant was "just incoherent screaming just as – as loud
as you can imagine." Seitzman did not consider appellant's screaming and yelling to be
speaking as "she wasn't speaking any sort of language [he] recognized."
{¶ 9} After checking on the electrical workers injured in the accident, Seitzman
entered appellant's room and was advised by a nurse that appellant had needle marks on her
hand. After observing appellant for a brief period of time, Seitzman requested that another
officer bring a urine and blood collection kit to the hospital. Seitzman testified he requested
the kit "based on a few factors," including "the air of alcohol [that] was described to [him] by
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the officer that was at the scene," "the yelling and screaming" coming from appellant, which
was "inconsistent with anybody else in the ER and highly unusual behavior," and the
suspected needle marks on appellant's hand.
{¶ 10} Around 6:12 p.m., prior to appellant's blood being taken, Seitzman read
appellant a BMV 2255 form, informing her of the consequences of refusing to submit to a
blood test. Appellant was not placed under arrest at this time and she did not sign the form.
Seitzman asked appellant if she wanted to comply with the blood test, and she responded
with "incoherent yelling and screaming." Believing that appellant was unable, or incapable, of
refusing to give consent, Seitzman opened the blood collection kit and handed two collection
tubes to nurse Amanda Burton. Seitzman observed Burton open the tubes and draw
appellant's blood before both he and Burton immediately sealed the tubes, signed the
collected evidence, and sealed the evidence inside the collection kit. Within 15 minutes of
the blood sample being drawn, Seitzman left the hospital with the sample and transported it
to evidence-room refrigerator at the police station. Seitzman explained that the refrigerator is
under the care and custody of the police department and is kept locked.
{¶ 11} Burton testified she was the emergency room registered nurse who helped
treat appellant on the day of the accident. Burton testified appellant's words were "slurred"
and "not comprehensible." According to Burton, appellant "never could answer any
questions appropriately." Burton described appellant as "very combative and uncooperative,"
and noted that the hospital had to administer medication to calm her down. Although Burton
could not specifically recall the name of the medication or medications provided to appellant,
she knew the medication had been given to appellant prior to appellant's blood being drawn.
{¶ 12} Burton explained that at the request of law enforcement, she did a blood draw
from appellant using "the material that [was] provided" in law enforcement's collection kit.
Burton used the "site prep," tubes, specimen labels, and the nonalcoholic Betadine antiseptic
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swab that came with the kit. She also used a sealed, dry, and sterile butterfly needle from
the hospital in withdrawing appellant's blood. Burton testified that after filling both tubes from
the kit with appellant's blood, she sealed and initialed the tubes before giving the collection kit
containing the samples to Officer Seitzman.
{¶ 13} Officer Keith Staton testified he is the property room officer responsible for the
safekeeping of evidence, including blood samples taken from a suspect. He explained that
the refrigerators that store the collection kits containing blood samples are kept between the
"high 30-degree range * * * up to about 41 degrees." If the refrigerator malfunctions and the
temperature rises, an alarm goes off notifying him that the refrigerator needs repair. He
stated that the refrigerator had not malfunctioned around the time that he received
appellant's blood sample.
{¶ 14} Staton explained that on April 24, 2015, he transported appellant's blood
collection kit to the Miami Valley Regional Crime Lab ("MVRCL"). The kit was stored in a
cooler placed inside the trunk of Staton's vehicle. It took Staton approximately 45 minutes to
get to MVRCL, and upon his arrival, he gave custody of the kit to Lori Chenoweth, an MVRCL
employee.
{¶ 15} Phillip Carter and Elizabeth Kiely, forensic toxicologists employed by MVRCL,
testified about various tests they ran on appellant's blood sample. Carter explained that he
retrieved appellant's blood collection kit frim the lab's main refrigerator and transported it
upstairs to the toxicology section's refrigerator, where appellant's blood sample was stored
until testing was completed. Carter conducted a blood alcohol test on appellant's blood
sample using gas chromatography on May 4, 2015. On May 5, 2015, he conducted an
ELISA drug screen, or an immunoassay screening technique, that tests for different classes
of drugs. Based on the results of the ELISA testing, Carter also performed a confirmation
test for the presence of marijuana.
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{¶ 16} Kiely testified that on May 8, 2015, she conducted a gas chromatograph mass
spectrometer ("GCS") basic drug screening of appellant's blood after obtaining the sample
from the lab's refrigerator. Kiely stated she believed the blood sample contained
anticoagulant as the red blood cells had not separated from the plasma and clumped
together in the collection tubes. Kiely explained the GCS drug test "looks for a wider variety
of drugs than [the] ELISA screen," such as prescription medications. After performing the
GCS testing, Kiely also conducted an opiate confirmation test and a benzodiazepine
confirmation test. Kiely's testing revealed the presence of alprazolam, commonly known as
Xanax, in appellant's blood.
{¶ 17} Following Kiely's testimony, the trial court accepted into evidence the following
exhibits introduced by the state: the BMV 2255 form read to appellant, photographs of the
blood collection kit, appellant's signed waiver of her Miranda rights, the police department's
property room report for appellant's blood collection kit, Carter's and Kiely's curricula vitae,
and permits issued by the Ohio Department of Health to Carter and Kiely authorizing them to
perform alcohol and drug testing. Appellant did not present any testimony or exhibits in
support of her motion to suppress.
{¶ 18} The trial court denied appellant's motion after concluding that appellant's blood
had been taken in accordance with R.C. 4511.191(A)(4) and that the state had substantially
complied with Ohio Adm.Code 3701-53-01 through 3701-53-10 in collecting, transporting,
and testing appellant's blood. The court found that Officer Seitzman "had probable cause to
believe that the [appellant] may have been operating a motor vehicle while under the
influence of alcohol o[r] drugs of abuse" in violation of R.C. 4511.19, and he had "reasonable
cause and probable cause to request and demand a blood sample from the [appellant]." The
court further found that appellant "impliedly consented under the circumstances of this case
to a blood draw" as she was "incapable of refusal by virtue of the fact she was unresponsive
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* * * [and] was yelling and not responding to questions or commands. * * * [Appellant] was
incapable of communication – incapable from all the testimony * * * of hearing, receiving,
processing * * * information and therefore, incapable of refusal."
{¶ 19} A five-day jury trial commenced on April 4, 2016. The jury found appellant
guilty of one count of aggravated vehicular homicide, one count of negligent homicide, three
counts of aggravated vehicular assault, and one count of operating a motor vehicle under the
influence. The negligent homicide conviction was merged with the aggravated vehicular
homicide conviction, and appellant was sentenced to an aggregate prison term of 16 years.
{¶ 20} Appellant timely appealed, raising the following as her sole assignment of
error:
{¶ 21} THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO
SUPPRESS.
{¶ 22} Appellant contends the trial court erred by denying her motion to suppress for
two reasons. First, appellant argues that the blood sample was taken "contrary to the
requirements set forth in ORC 4511.19, and the tests to determine [her] alcohol or drug level
were not taken voluntarily and were unconstitutional." Second, she argues the "collection,
transport, and testing of [her] blood * * * was not done in substantial compliance with the
Ohio Administrative Code."
{¶ 23} Our review of a trial court's denial of a motion to suppress presents a mixed
question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-
Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve
factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial
of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if
they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.
CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently
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reviews the trial court's legal conclusions based on those facts and determines, without
deference to the trial court's decision, whether as a matter of law, the facts satisfy the
appropriate legal standard." Cochran at ¶ 12.
{¶ 24} "The Fourth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 14, prohibit unreasonable searches and seizures." State v.
Emerson, 134 Ohio St. 3d 191, 2012-Ohio-5047, ¶ 15. "[A] warrantless search of the person
is reasonable only if it falls within a recognized exception." Missouri v. McNeely, __ U.S. __,
133 S. Ct. 1552, 1558 (2013). The burden is on the state to establish that the warrantless
search was constitutionally permissible. State v. Roberts, 110 Ohio St. 3d 71, 2006-Ohio-
3665, ¶ 98.
{¶ 25} R.C. 4511.19(D)(1)(b) provides that "[i]n any criminal prosecution * * * for a
violation of division (A) or (B) of this section or for an equivalent offense that is vehicle-
related, * * * [t]he court may admit evidence on the concentration of alcohol, drugs of abuse,
or a combination of them * * * when a person submits to a blood * * * test at the request of a
law enforcement officer under section 4511.191 of the Revised Code or a blood * * * sample
is obtained pursuant to a search warrant."2
{¶ 26} Pursuant to Ohio's implied-consent statute, R.C. 4511.191, "[a]ny person who
operates a vehicle * * * upon a highway or any public or private property used by the public
for vehicular travel * * * shall be deemed to have given consent to a chemical test or tests of
the person's whole blood, blood serum or plasma * * * 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 * * * if arrested for a violation of division (A)
2. In addition to facing criminal prosecution for driving under the influence in violation of R.C. 4511.19(A)(1)(a),
appellant also faced prosecution for the vehicle-related "equivalent offenses" of aggravated vehicular homicide
and aggravated vehicular assault, as defined in R.C. 4511.181(A)(4) and (5).
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or (B) of section 4511.19 of the Revised Code." R.C. 4511.191(A)(2). The statute further
provides that "[a]ny person who is dead or unconscious, or who otherwise is in a condition
rendering the person incapable of refusal, shall be deemed to have consented as provided in
division (A)(2) of this section, and the test or tests may be administered, subject to sections
313.12 to 313.16 of the Revised Code." (Emphasis added.) R.C. 4511.191(A)(4).
{¶ 27} Appellant argues the implied consent statute does not apply as she had not
been arrested at the time the blood sample was taken. She further argues that because she
was not "dead or unconscious," the implied consent statute had not been "triggered."
{¶ 28} This court previously considered the implied consent statute as it pertained to
a blood sample taken from an unconscious individual who was not under arrest at the time
the sample was taken. See State v. Taylor, 2 Ohio App. 3d 394 (12th Dist.1982). There, we
read the implied consent statute "to authorize the withdrawal of blood from an unconscious
individual by an officer who has reasonable grounds to believe the person * * * ha[d] been
driving a motor vehicle upon the public highways of this state while under the influence of
alcohol, whether or not the unconscious person [was] actually placed under arrest." Id. at
395. In arriving at this decision, we noted that
[a] police officer in such a case as this is in a difficult position.
Certainly he is concerned that the unconscious individual receive
prompt medical attention. On the other hand, he has an
obligation to enforce the law prohibiting driving while intoxicated.
Therefore, the officer must get a blood test quickly while leaving
the unconscious individual in the control of the hospital authorities
in order to accomplish both goals. We do not think that the
legislature intended to prohibit this procedure by requiring an
arrest of an unconscious person.
Id.
{¶ 29} The same rationale applies to a person who is in a condition rendering her
incapable of refusal. We therefore hold that at the request of law enforcement, R.C.
4511.191(A)(4) authorizes the withdrawal of a blood sample from an individual in a condition
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rendering her incapable of refusal if the officer has reasonable grounds to believe the
individual has been driving a motor vehicle upon the public highways of this state while under
the influence of alcohol or drugs of abuse, regardless of whether the person is actually
placed under arrest. Accord State v. Hayes, 2d Dist. Montgomery No. 26379, 2016-Ohio-
7241, ¶ 47 ("R.C. 4511.191[A][4] specifically deems an unconscious or incapacitated person
to have consented to a blood test if there is probable cause to believe the person has been
operating a motor vehicle while intoxicated").
{¶ 30} In the present case, Officer Seitzman had reasonable grounds and probable
cause to believe that appellant had been operating a motor vehicle while under the influence.
Probable cause, within the context of arrests for driving under the influence, is determined by
looking at whether the officer "had sufficient information, derived from a reasonably
trustworthy source of facts and circumstances, to cause a prudent person to believe the
accused was driving under the influence." State v. Henriksson, 12th Dist. Butler No.
CA2010-08-197, 2011-Ohio-1632, ¶ 11. Probable cause is determined by looking at the
totality of the surrounding circumstances." Id.; Hayes at ¶ 51.
{¶ 31} At the time Seitzman had appellant's blood sample taken, the totality of the
circumstances was sufficient to warrant a prudent person to believe that appellant had been
driving under the influence. Seitzman had observed the scene of the accident and had been
advised that appellant had crossed over multiple lanes of traffic before striking the electrical
truck. He had been informed that there had been an odor of an alcoholic beverage either
about appellant's person or coming from her vehicle. Upon arriving at the hospital, Seitzman
observed appellant's "highly unusual behavior" of incomprehensibly yelling and screaming,
and was advised that appellant had needle marks on her hand. Taking all of these facts into
consideration, the totality of the circumstances supports the trial court's finding that probable
cause existed to believe that appellant had been driving under the influence at the time of the
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accident.
{¶ 32} The record also supports the trial court's finding that appellant impliedly
consented to the blood draw pursuant to R.C. 4511.191(A)(4) by being in a condition
rendering her incapable of refusal. Officer Newman testified that immediately after the
accident appellant was going in and out of consciousness and was incoherent. Officer
Seitzman testified appellant was not "speaking any sort of language" at the hospital but was
"incoherent[ly] yelling and screaming." Nurse Burton corroborated Seitzman's observations,
testifying that appellant's words were "not comprehensible" and that appellant "never could
answer any questions appropriately." As there was competent, credible evidence to support
the trial court's finding that appellant was "incapable of communication – incapable * * * of
hearing, receiving, and processing information and therefore, incapable of refusal," we find
no error in the trial court's decision not to suppress the blood-test results on the basis that
there was probable cause and implied consent pursuant to R.C. 4511.191(A)(4) for the blood
sample to be taken.
{¶ 33} Appellant also contends the state failed to demonstrate it substantially
complied with the Ohio Administrative Code in collecting, transporting, and testing her blood
sample. Appellant does not identify any specific regulation or regulations the state allegedly
failed to comply with, but rather argues that the "test results were contaminated by the
medications [she] was administered in the emergency room during treatment."
{¶ 34} The Director of Health promulgated certain regulations in Ohio Adm.Code
3701-53-01 through 3701-53-10 for testing the concentration of alcohol or drugs of abuse
found in an individual's blood, breath, or urine. State v. Burnside, 100 Ohio St. 3d 152, 2003-
Ohio-5372, ¶ 9-10; State v. Zink, 9th Dist. Summit No. 17484, 1996 Ohio App. LEXIS 3836, *
5, fn. 1 (Sept. 4, 1996). When a defendant challenges the validity of a blood test by way of a
pretrial motion to suppress, "the state has the burden to show that the test was administered
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in substantial compliance with the regulations prescribed by the Director of Health" to trigger
the presumption of admissibility. Burnside at ¶ 24, 27. The substantial-compliance standard
excuses "only errors that are clearly de minimis" or are "'minor procedural deviations.'" Id. at
¶ 34, quoting State v. Homan, 89 Ohio St. 3d 421, 426 (2000). "Once the state has satisfied
this burden and created a presumption of admissibility, the burden then shifts to the
defendant to rebut that presumption by demonstrating that [s]he was prejudiced by anything
less than strict compliance." Id. at ¶ 24.
{¶ 35} In the present case, the state demonstrated substantial compliance with Ohio
Adm.Code 3701-53-01 through 3701-53-10 through the testimony of officers Seitzman and
Staton, nurse Burton, and toxicologists Carter and Kiely. Burton and Seitzman's testimony
indicated that a nonalcoholic Betadine antiseptic swab had been used on appellant's skin
before a sterile, dry needle was used to withdraw blood into two tubes, which according to
Kiely, contained an anticoagulant. The tubes contained labels with the date and time of
collection, appellant's name, and the initials of Seitzman and Burton. Seitzman and Staton's
testimony demonstrated that the blood samples were kept refrigerated and secured in police
custody until such time as they were transported to MVRCL. Carter and Kiely testified about
MVRCL's facility requirements as well as their individual training and experience. Permits
issued to Carter and Kiely by the Ohio Department of Health were introduced into evidence,
demonstrating that they had been authorized to perform alcohol and drug testing using
certain analytical techniques or methods, including gas chromatography, mass spectroscopy,
and immunoassay screening techniques. They explained that they tested appellant's blood
sample using these specific techniques and methods.
{¶ 36} Despite the evidence demonstrating the state complied with the requirements
of Ohio Adm.Code 3701-53-01 through 3701-53-10, appellant nonetheless maintains that the
test results from her blood sample should have been suppressed because the sample was
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"contaminated" by medications administered at the hospital. She argues that the "[f]ailure to
consider blood contamination through no fault of [her own] * * * prior to collection [is] an
egregious mistake, holding [her] potentially criminally responsible for substances in her blood
over which she had no control." However, nothing in Ohio Adm.Code 3701-53-01 through
3701-53-10 prohibits a blood sample from being taken or tested merely because medication
has been administered to treat a suspect who is receiving medical care in an emergency
situation. While the type and amount of medication a hospital has administered would
certainly be admissible and relevant evidence in determining a defendant's guilt, it has no
bearing on the collection, transporting, or testing of the sample as regulated by Ohio
Adm.Code 3701-53-01 through 3701-53-10.
{¶ 37} Moreover, in the present case, appellant did not preserve the issue of whether
the medication given to her at the hospital contaminated the sample or affected the state's
compliance with the regulations set forth in Ohio Adm.Code 3701-53-01 through 3701-53-10.
Appellant's November 18, 2015 motion to suppress did not raise this specific issue. At the
hearing on the motion to suppress, Burton did testify that medication was given to appellant
prior to the blood sample being taken in order to calm appellant. However, Burton could not
recall what medications were administered. During arguments on the motion, defense
counsel initially attempted to argue that the blood sample was contaminated and should be
suppressed, but ultimately conceded that "there's not evidence as to what was given to
[appellant]." Defense counsel requested that the court "leave the matter open, [as] obviously
the implied consent aspect doesn't address that – or the warrant issue doesn't address that
specifically." The trial court complied with defense counsel's request, stating that with
respect to the possible contamination of the sample by medications administered at the
hospital, it would "allow the Defendant to preserve that aspect of the motion to suppress to
refile that. * * * [The court] will allow you to preserve or refile that motion to suppress based
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on that argument. * * * [T]he Court is giving opportunities to full[y] vet that issue; to make
that motion."
{¶ 38} However, defense counsel did not file with the trial court a supplemental
motion to suppress raising this issue. The issue, therefore, was not preserved and has been
waived for purposes of appeal. See State v. Davis, 12th Dist. Clinton No. CA2015-12-022,
2017-Oho-495, ¶ 75.
{¶ 39} Accordingly, as there was probable cause for the blood sample to be taken,
appellant impliedly consented to withdrawal of the sample in accordance with R.C.
4511.191(A)(4), and the state substantially complied with the regulations set forth in Ohio
Adm.Code 3701-53-01 through 3701-53-10 in collecting, transporting, and testing appellant's
blood sample, we find that the trial court did not err in denying appellant's motion to
suppress. Appellant's sole assignment of error is overruled.
{¶ 40} Judgment affirmed.
RINGLAND and PIPER, JJ., concur.
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