State v. McLeod

[Cite as State v. McLeod, 2012-Ohio-1797.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2011-CA-22
MATTHEW MCLEOD :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Mount Vernon
Municipal Court, Case No. 10TRC5894
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: April 19, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
P. ROBERT BROEREN, JR. TIMOTHY HUEY
5 North Gay Street, Ste. 222 1985 West Henderson Road, #204
Mount Vernon, OH 43050 Upper Arlington, OH 43220
SARAH M. SCHREGARDUS
492 City Park Avenue
Columbus, OH 43215
[Cite as State v. McLeod, 2012-Ohio-1797.]
Gwin, P.J.
{¶ 1} Appellant, Matthew McLeod, appeals the April 22, 2011 judgment entry of
the Mount Vernon Municipal Court overruling his motion to suppress evidence.
{¶ 2} Appellee, the State of Ohio did not file a brief in this matter. Pursuant to
App.R. 18(C), in determining the appeal, we may accept appellant’s statement of the
facts and issues as correct, and reverse the judgment if appellant’s brief reasonably
appears to sustain such action. See State v. Rohrig, 5th Dist. No. 00 CA 39, 2001
WL336315 (Apr. 2, 2001), and Chowdhury v. Fitzgerald, 5th Dist. No. 96 CA 43,
1997WL219172 (Mar. 27, 1997). Therefore, we presume the validity of appellant’s
statement of facts and issues.
{¶ 3} At the evidentiary hearing on appellant's motion to suppress held April 12,
2011, the following facts were established.
{¶ 4} Trooper Samuel Criswell was traveling southbound on South Main Street
in Mount Vernon. He observed appellant's vehicle around 1:20 a.m. Trooper Criswell
stopped appellant’s vehicle, conducted an OVI investigation and arrested appellant.
Appellant was charged with Operating a Vehicle with a prohibited concentration of
alcohol in his breath in violation of R.C. 4511,19(A)(1)(d), as well as Operating a Vehicle
while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a). Trooper
Criswell, handcuffed appellant and placed him in the back of the cruiser at
approximately 1:31 a.m. The trooper left appellant unattended while the trooper talked
to the passenger in appellant’s car until approximately 1:34 a.m. Trooper Criswell then
transported appellant to the Knox County Sheriff's Office.
Knox County, Case No. 2011-CA-22 3
{¶ 5} At the Sheriff's Office, after reviewing the BMV 2255 Form, appellant
agreed to submit to a breath test. He took the test at 1:51 a.m. and the results indicated
.120. According to Trooper Criswell, he testified that he began observing Mr. McLeod at
1:20 a.m. No testimony was presented that appellant was asked if he had placed
anything in his mouth before the initiation of the breath test.
{¶ 6} Appellant testified that after he was arrested and placed in the back of the
cruiser, he found a penny in his back pocket while the trooper was talking to the
passenger. Appellant placed the penny in his mouth by getting it out of his back pocket
with his hand that was handcuffed behind his back and placing the penny on the seat,
leaning over and picking up the penny with his mouth. He kept the penny in his mouth
until they arrived at the police station, at which time he spit the penny onto the floor of
the cruiser. The defense then submitted the BAC DataMaster Operator Guide and
rested.
{¶ 7} After the hearing, the trial court denied appellant’s motion. In its entry, the
court concluded that the penny appellant placed in his mouth would not have affected
the breath alcohol test.
{¶ 8} On October 3, 2011, appellant entered a plea of no contest to Operating a
Vehicle with a prohibited concentration of alcohol in violation of R.C. 4511.19(A)(1)(d).
The trial court found appellant guilty and imposed the following sentence: a fine of $500,
a three-year driver's license suspension to be terminated once he served a total of 180
days of the suspension, five years of community control, and he was required to
complete a 3-day Driver Intervention Program. The charge for violating R.C.
4511.19(A)(1)(a) was dismissed by the court.
Knox County, Case No. 2011-CA-22 4
{¶ 9} It is from the trial court’s April 22, 2011 Journal Entry denying his motion to
suppress that appellant has appealed raising as his sole Assignment of Error,
{¶ 10} “I. WHERE, IN AN OVI PROSECUTION UNDER O.R.C. §
4511.19(A)(1)(D), THE TRIAL COURT FOUND THAT THE APPELLANT PLACED A
PENNY IN HIS MOUTH WITHIN TWENTY (20) MINUTES OF A BREATH TEST BEING
CONDUCTED, THE TRIAL COURT ERRED IN FINDING SUBSTANTIAL
COMPLIANCE WITH THE OHIO DEPARTMENT OF HEALTH REGULATIONS AND IN
NOT SUPPRESSING THE BREATH TEST RESULTS. O.R.C. § 4511.19 (D)(1)(A),
O.R.C. § 3701.143, O.A.C. 3701-53- 01, O.A.C. 3701-53-02, FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”
I.
{¶ 11} 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
Knox County, Case No. 2011-CA-22 5
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 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.
{¶ 12} We therefore consider whether the facts in the instant case demonstrate
substantial compliance with the Department of Health regulations under a de novo
standard of review. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71 at 118.
{¶ 13} R.C. 4511.19(D) requires that the analysis of bodily substances be
conducted in accordance with methods approved by the Ohio Director of Health, as
prescribed in Ohio Administrative Code regulations. The Ohio Supreme Court has held
that absent a showing of prejudice by the defendant, rigid compliance with ODH
regulations is not required as such compliance is not always humanly or realistically
possible. State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986); State v.
Morton, 12th Dist. No. CA98-10-131, 1999 WL 296700 (May 10, 1999). Rather, if the
state shows substantial compliance with the regulations, absent prejudice to the
defendant, alcohol tests results can be admitted in a prosecution under 4511.19. Id. In
determining whether the state substantially complied with ODH regulations, the trial
Knox County, Case No. 2011-CA-22 6
court is in the best position to resolve questions of fact and evaluate the credibility of the
witnesses. State v. Williams, 82 Ohio App.3d 39, 610 N.E .2d 1188 (1982).
{¶ 14} In Bolivar v. Dick, 76 Ohio St.3d 216, 218, 667 N.E.2d 18, 1996-Ohio-409,
the Supreme Court noted,
R.C. 4511.19(D) states that any bodily substance collected for the
purpose of determining whether a person is in violation of the statute ‘shall
be analyzed in accordance with the methods approved by the director of
health * * *.’ Regulations promulgated by the Director of Health in Ohio
Adm.Code 3701-53-02(B) state in pertinent part that ‘[b]reath samples
shall be analyzed according to the operational checklist for the instrument
being used.’ Thus, the operational checklist, which is part of the BAC
Verifier Test Report Form (see Appendix A), provides the ‘methods
approved by the director of health’ for the operation of the BAC Verifier.
The first item on the operational checklist, which is part of the BAC
Verifier Test Report Form, states ‘Observe subject for twenty minutes prior
to testing to prevent oral intake of any material.” The Health regulations
require that a test subject not ingest anything for 20 minutes prior to
submitting to a Breathalyzer test. See Ohio Adm.Code 3701-53-02.
Id. at 218. State v. Raleigh, Licking App. No. 2007–CA–31, 2007-Ohio-5515, 2007 WL
2994237, at ¶ 47-48.
{¶ 15} In the case at bar, the DataMaster Basic Operator Guide, admitted as
Defendant’s Exhibit A, does not limit “foreign substance” to “food, gum or tobacco”;
rather the manual states, in relevant part,
Knox County, Case No. 2011-CA-22 7
a. Check mouth of subject for food, gum tobacco, or any other
foreign substance.
b. Observe subject for at least 15 minutes to be sure no food
or drink is ingested.
c. Record observation start time on Evidence Ticket if your
procedure requires same.
***
Id. at 5 (Emphasis added).
{¶ 16} This Court in State v. Karns 5th Dist. No. 97CA0002, 1998 WL 550708(July 21, 1998) previously held that the substantial compliance standard is not
applicable to the instant situation. In Karns, we held that the regulation is a bright line
rule-either the subject did or did not have something in his mouth during the twenty (20)
minute observation period. In that case, we held that because appellant had the
chewing gum in her mouth during the twenty (20) minute observation period, there had
not been compliance with the regulation. Therefore, appellant was not required to show
prejudice before the results were inadmissible. In Karns, we held that the determination
that such case scenario does not yield itself to a substantial compliance test is
buttressed by the fact that the language of the regulation itself prohibits the intake of
any material, not just material which may contain alcohol or otherwise may affect the
test results. Our holding comports with our previous decision in State v. Kirkpatrick 5th
Dist. No. 43-CA-87, 1998 WL 59437 (June 1, 1988), in which we concluded “that the
twenty-minute observation period is mandatory and that there be no oral ingestion of
Knox County, Case No. 2011-CA-22 8
any material during that observation period.” Id. at 8. Accord State v. Baldridge, 5th Dist.
No. 01-COA-01412, 2001-Ohio-7029; State v. Raleigh, supra.
{¶ 17} In State v. Steele, 52 Ohio St.2d 187, 370 N.E.2d 740(1977), the Ohio
Supreme Court explained the reason for the twenty-minute observational period before
testing. It explained that the observational period is used to eliminate the possibility that
the test result is a product of anything other than the suspect's deep lung breath. Id. at
190, 370 N.E.2d 740. The Court explained that since the “accuracy of the test results
can be adversely affected if the suspect either ingests material internally, by belching or
vomiting, the suspect must be observed” for twenty minutes to verify that no external or
internal material causes a false reading. State v. Douglas, 1st Dist. No. C-030897,
2004-Ohio-5726, at ¶ 9, citing Steele, 52 Ohio St.2d at 190, 370 N.E.2d 740; State v.
Camden, 7th Dist. No. 04 MO 12, 2005-Ohio-2718 at ¶ 15. In Steele, the court
reasoned that once the trooper demonstrated it was highly improbable that the subject
ingested any item during the twenty-minute period, it was up to the defendant to
“overcome that inference” with proof that she had ingested some substance. Moreover,
ingestion has to be more than just “hypothetically possible.” Steele, supra at 192, 370
N.E.2d 740; see, accord, State v. Faykosh, 6th Dist. No. L-01-1244, 2002-Ohio-6241;
State v. Embry, 12th Dist. No. CA2003-11-110, 2004-Ohio-6324 at ¶ 25; State v.
Rennick, 7th Dist. No. 02 BA 19, 2003-Ohio-2560 at ¶ 25; State v. Siegel, 138 Ohio
App.3d 562, 568-569, 741 N.E.2d 938, 942-943(2000).
{¶ 18} In the case at bar, the trial court found,
that "foreign substances" as used in the DataMaster Basic
Operator's Guide means thing like "food, gum or tobacco,” i.e. things that
Knox County, Case No. 2011-CA-22 9
are easily malleable or broken or cracked or crushed by the teeth, or that
dissolve in the mouth or otherwise breakdown or interact with saliva. It
does not include things like dentures, partial plates, caps crowns, gold
fillings, silver amalgam filling, coins, rocks, nails or marbles. Food can and
does breakdown into a multitude of minute particles that could interfere
with the operation of the BAC machine. Likewise, use of gum and or
tobacco increases the production of saliva which could result in a droplet
of saliva entering the BAC machine and interfering with its operation. The
Defendant has presented no expert testimony that presence of the penny
in the Defendant's mouth during the twenty-minute observation period, but
not during the time the test was being performed, had any effect on the
machine's operation.
{¶ 19} Under the facts of the case at bar, the determination of whether appellant
placed anything in his mouth during the twenty-minute observation period is a credibility
determination. We note also that prior to administering the test, there is no testimony
that appellant was asked if he had placed anything in his mouth during the twenty-
minute observational period. Appellant did testify that he had put a coin into his mouth
during this period.
{¶ 20} An appellate court's role in reviewing a trial court's ruling on a motion to
suppress is not to re-evaluate the evidence or the credibility of the witnesses, State v.
Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 981-982(1992), but to determine
whether the trial court's application of the law to the facts, as the trial court found them
to be, is appropriate. State v. Williams, 86 Ohio App.3d 37, 41, 619 N.E.2d 1141, 1143-
Knox County, Case No. 2011-CA-22 10
1144(1993). Here, the Court believed the testimony of appellant as the presence of the
coin in his mouth before the administration of the BAC test. Once appellant articulated
this objection to the BAC test, the burden shifted to the state to demonstrate the
presence of the coin had no effect on the test results. See State v. Siegel, 138 Ohio
App.3d 562, 2000-Ohio-1747, 741 N.E.2d 938; State v. Baldridge, 5th Dist. No. 01-
COA-01412, 2001-Ohio-7029; Defiance v. Stafford, 3rd Dist. No. 4-88-01, 1992 WL
24864 (Feb. 7, 1992), State v. Adams, 73 Ohio App.3d 735, 598 N.E.2d 176(1992). A
review of the record reveals that the state failed to present any evidence that the BAC
results were not prejudiced by the presence of the coin in appellant’s mouth during the
twenty-minute observation period. Based on the foregoing, we find as a matter of law
that the facts presented on appeal fail to meet the applicable legal standard and that the
trial court erred in not suppressing the BAC results.
Knox County, Case No. 2011-CA-22 11
{¶ 21} Appellant’s sole assignment of error is sustained. We hereby vacate
appellant's conviction, reverse and remand this matter to the trial court for proceedings
not inconsistent with this opinion.
By Gwin, P.J., and
Hoffman, J., concur;
Farmer, J., dissents
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0308
Knox County, Case No. 2011-CA-22 12
Farmer, J., dissents
Although I acknowledge our previous decisions in Karns and Baldridge cited
supra, I respectfully dissent from the majority's view. As noted by the majority in citing
the trial court's finding, the DataMaster Basic Operator's Guide excludes a "coin" as a
foreign substance. Because the Director of Health specifically adopts and approves the
DataMaster test, I would find such an approval specifically includes the definition of
"foreign substances" in the manual.
I would find a "coin" is not a foreign substance that would invalid the test and I
would deny the assignment of error.
________________________________
HON. SHEILA G. FARMER
[Cite as State v. McLeod, 2012-Ohio-1797.]
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
MATTHEW MCLEOD :
:
:
Defendant-Appellant : CASE NO. 2011-CA-22
For the reasons stated in our accompanying Memorandum-Opinion, Appellant’s sole
assignment of error is sustained. We hereby vacate appellant's conviction, reverse and
remand this matter to the trial court for proceedings not inconsistent with this opinion.
Costs to appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER