State v. Ruby

[Cite as State v. Ruby, 2012-Ohio-6077.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2012 CA 00006
:
:
TARREN RUBY : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from the Perry
County Court Case No. TRC 11
00858
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 17, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
NANCY NASH RIDENOUR J. MATTHEW DAWSON
Assistant Prosecuting Attorney 35 S. Park Place, Suite 10
P.O. Box 569 Newark, Ohio 43055
New Lexington, Ohio 43764
[Cite as State v. Ruby, 2012-Ohio-6077.]
Edwards, J.
{¶1} Appellant, Tarren Ruby, appeals a judgment of the Perry County Court
convicting him of Driving Under the Influence (R.C. 4511.19(A)(1)(a)) upon a plea of no
contest. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On June 30, 2011, Trooper Daniel Moran was dispatched to the scene of
a traffic accident at 1:08 a.m. Appellant, the driver of the vehicle involved in the crash,
had already been transported to Licking Memorial Hospital. Trooper Moran went to the
hospital to question appellant. He noted a moderate odor of alcohol about appellant’s
person, and his eyes were red and glassy. Appellant admitted to consuming one beer
at 8:30 p.m. and one at 12:30 a.m. At 2:32 a.m. the trooper read appellant a BMV2255
form, and a nurse drew a blood sample at 2:44 a.m. The test showed 0.100 grams of
weight of alcohol per one hundred milliliters of whole blood. Appellant was charged with
operating a motor vehicle while intoxicated in violation of R.C. 4511.19(A)(1)(a) and
driving with a prohibited blood alcohol content in violation of R.C. 4511.19(A)(1)(b). He
was also charged with failure to control (R.C. 4511.202) and driving while wearing
earphones (R.C. 4511.84).
{¶3} Appellant filed a motion to suppress the blood test results on the basis that
the trooper did not read appellant the BMV2255 form within a two hour limit and did not
request a blood sample within a three hour limit in violation of R.C. 4511.19(D)(1). The
court overruled the motion to suppress.
{¶4} Appellant then entered a plea of no contest to operating a motor vehicle
while intoxicated in violation of R.C. 4511.19(A)(1)(a). At the plea hearing, the results of
Perry County App. Case No. 2012 CA 00006 3
the blood alcohol test were not discussed in the recitation of the facts or the court’s
finding of guilt. All other charges were dismissed. Appellant was fined $550.00 and
sentenced to sixty days incarceration with fifty-seven days suspended. He was ordered
to serve three days in a driving intervention program in lieu of incarceration, placed on
probation for one year and his driver’s license was suspended for six months. He
assigns a single error on appeal:
{¶5} “WHETHER OR NOT THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT’S MOTION TO SUPPRESS THE RESULTS OF A BLOOD ALCOHOL
TEST WHERE THE OFFICER EXCEEDED HIS AUTHORITY PURSUANT TO ORC
4511.192(A) AND ORC 4511.19(D).”
{¶6} Appellant pleaded no contest to OVI. The trial court found appellant guilty
of R.C. 4511.19(A)(1)(a) and sentenced appellant under that charge. The results of the
blood test are not necessary to establish a violation of R.C. 4511.19(A)(1)(a). State v.
Arenz, 5th Dist. No. 06CA111, 2007-Ohio-4283, ¶18; State v. Kee, 5th Dist. No. 04 CAC
09 064, 2005-Ohio-4707, at ¶ 29; State v. Stack (Dec. 17, 1999), 5th Dist. No.
99CA00085. Appellant has not raised a manifest weight of the evidence assignment
relative to the evidence supporting his conviction for a violation of R.C.
4511.19(A)(1)(a). Further, the trial court does not refer to the blood test results in
finding appellant guilty of violating R.C. 4511.19(A)(1)(a).
Perry County App. Case No. 2012 CA 00006 4
{¶7} Appellant’s assignment of error is overruled.
{¶8} The judgment of the Perry County Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r1018
[Cite as State v. Ruby, 2012-Ohio-6077.]
IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TARREN RUBY :
:
Defendant-Appellant : CASE NO. 2012 CA 00006
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Perry County court is affirmed. Costs assessed to appellant.
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JUDGES