State v. Hamrick

[Cite as State v. Hamrick, 2017-Ohio-4211.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 16CA010935
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARK HAMRICK ELYRIA MUNICIPAL COURT
COUNTY OF LORAIN, OHIO
Appellant CASE No. 2015 TRC 08297
DECISION AND JOURNAL ENTRY
Dated: June 12, 2017
CALLAHAN, Judge.
{¶1} Appellant, Mark Hamrick, appeals from his conviction in the Elyria Municipal
Court. For the reasons set forth below, this Court affirms.
I.
{¶2} Mr. Hamrick was indicted for operating a vehicle under the influence of alcohol
and/or drugs (“OVI”) and a marked lane violation. He filed a motion to suppress the results of
the BAC DataMaster blood alcohol reading. A hearing was held and the motion to suppress was
denied.
{¶3} Mr. Hamrick timely appeals his conviction and raises one assignment of error.
II.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [MR.
HAMRICK’S] MOTION TO SUPPRESS BLOOD ALCOHOL CONTENT
TEST RESULTS WHERE [MR. HAMRICK’S] CONSENT WAS BASED ON
FALSE INFORMATION GIVEN [TO MR. HAMRICK] TO INDUCE
CONSENT.
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{¶4} Mr. Hamrick argues the trial court erred in denying his motion to suppress. This
Court disagrees.
{¶5} A motion to suppress evidence presents a mixed question of law and fact. State v.
Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. A reviewing court “must accept the trial
court’s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8,
citing State v. Fanning, 1 Ohio St. 3d 19, 20 (1982). “Accepting these facts as true, the appellate
court must then independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.” Burnside at ¶ 8, citing State v.
McNamara, 124 Ohio App. 3d 706, 710 (4th Dist.1997). Therefore, this Court grants deference
to the trial court’s findings of fact, but conducts a de novo review of whether the trial court
applied the appropriate legal standard to those facts. State v. Booth, 151 Ohio App. 3d 635, 2003-
Ohio-829, ¶ 12 (9th Dist).
{¶6} Mr. Hamrick contends his consent to take the breathalyzer test was involuntary
because it was induced by Officer Sabo’s misleading summation of the penalties under R.C.
4511.191, the administrative license suspension statute (“ALS”). The State responds that consent
to take a breathalyzer test is satisfied by an officer reading the BMV Form 2255 to the arrestee.
Mr. Hamrick only challenges the trial court’s application of the law to the facts.
{¶7} Based on Ohio’s implied consent statute, “an OVI suspect is already deemed to
have consented to the breath test.” Middleburg Hts. v. Henniger, 8th Dist. Cuyahoga No. 86882,
2006-Ohio-3715, ¶ 19. Accord R.C. 4511.191(A)(2). However, prior to requesting a person
under arrest for OVI to submit to a chemical test, such as a breathalyzer, the arresting officer
must read BMV Form 2255 to the person. See R.C. 4511.192(B). BMV Form 2255 contains the
statutory requirements prescribed in R.C. 4511.192(B). State v. White, 3d Dist. Allen No. 1-13-
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27, 2014-Ohio-555, ¶ 36; State v. Henriksson, 12th Dist. Butler No. CA2010-08-197, 2011-
Ohio-1632, ¶ 13.
{¶8} The Ohio Supreme Court has held that there is “valid consent or refusal to take a
breath-alcohol-concentration test in the context of an administrative license suspension” when
BMV Form 2255 is read to the arrestee. Bryan v. Hudson, 77 Ohio St. 3d 376 (1997), syllabus.
Ohio appellate courts have consistently rejected arguments that extraneous statements,
misinformation, or lack of additional information from an officer renders the arrestee’s consent
to submit to a chemical test involuntary. See, e.g., Twinsburg v. Lisch, 9th Dist Summit Nos.
19627, 19628, 2000 WL 150755, *6 (Feb. 9, 2000) (officer’s minor misstatements regarding
driving privileges did not impact the defendant’s implied consent when the officer fully
complied with R.C. 4511.192(B) (formerly R.C. 4511.191(C)(1)); State v. Tino, 1st Dist.
Hamilton Nos. C-960393, C-960394, C-960395, 1997 WL 106339, *2 (Mar. 5, 1997) (“[t]he
results of the [chemical] test * * * were admissible in the disposition of appellant’s criminal case
regardless of whether the ALS provisions were properly communicated”); White at ¶ 38 (“[s]ince
there were no irregularities in * * * the implied consent warnings read to him, the implied
consent was valid”); Henriksson at ¶ 13 (trial court denied motion to suppress because the “the
arresting officer [] was only required to advise appellant as to the information contained in R.C.
4511.192(B), the same information as found on BMV Form 2255”); Wickliffe v. Hromulak, 11th
Dist. Lake No. 2000-L-069, 2001 WL 409523, *5 (Apr. 20, 2001) (“[t]he fact that appellant * *
* failed to recognize that he would be subject to penalties beyond the ninety-day administrative
suspension * * * does not call into question the validity of his consent in submitting to the BAC
test”); State v. Poynter, 78 Ohio App. 3d 483, 486 (3d Dist.1992) (“failure by the refusal form
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and [the] [o]fficer * * * to mention the possibility of petitioning the court for driving privileges is
not an indication of involuntary consent”).
{¶9} In this case, the parties stipulated to the recording of Mr. Hamrick and Officer
Sabo in the booking room at the North Ridgeville Police Department. The stipulation also
included Officer Sabo having correctly read BMV Form 2255 to Mr. Hamrick. Based on the
stipulation, there were no irregularities in the reading of BMV Form 2255, thereby rendering Mr.
Hamrick’s consent to the take the breathalyzer test valid and the results of the BAC test
admissible. See Hudson at syllabus; see also White at ¶ 38. Any extraneous information
provided by Officer Sabo to Mr. Hamrick after the officer read BMV Form 2255 aloud to Mr.
Hamrick was immaterial and has no bearing upon the voluntariness of Mr. Hamrick’s consent.
See Lisch at *5-6; see Tino at *1-2.
{¶10} The State also argues this is not a constitutional issue and thus not subject to a
motion to suppress. In light of the above analysis, this Court need not consider the merits of the
State’s alternative argument.
{¶11} Mr. Hamrick’s assignment of error is overruled.
III.
{¶12} Mr. Hamrick’s assignment of error is overruled. The judgment of the Elyria
Municipal Court is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Elyria Municipal
Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
DAVID M. LYNCH, Attorney at Law, for Appellant.
TONY L. MORGAN, Prosecuting Attorney, for Appellee.