Findlay v. Frenzel

[Cite as Findlay v. Frenzel, 2020-Ohio-4621.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
CITY OF FINDLAY,
CASE NO. 5-20-01
PLAINTIFF-APPELLEE,
v.
JOSHUA A. FRENZEL, OPINION
DEFENDANT-APPELLANT.
CITY OF FINDLAY,
CASE NO. 5-20-02
PLAINTIFF-APPELLEE,
v.
JOSHUA A. FRENZEL, OPINION
DEFENDANT-APPELLANT.
Appeals from Findlay Municipal Court
Trial Court Nos. 18-TRC-6376 and 18-TRD-9528
Judgments Affirmed
Date of Decision: September 28, 2020
APPEARANCES:
Jessica Borsani Powell for Appellant
Marshall Wm. Finelli for Appellee
Case Nos. 5-20-01 and 5-20-02
WILLAMOWSKI, J.
{¶1} Defendant-appellant Joshua A. Frenzel (“Frenzel”) brings appeal from
the judgments of the Findlay Municipal Court denying his motions to suppress. For
the reasons set forth below, the judgments are affirmed.
Appellate Case No. 5-20-01
{¶2} On July 10, 2018, Officer Jakob Sigler (“Sigler”) of the Findlay Police
Department arrested Frenzel for suspicion of an OVI in violation of local ordinance
333.01(A)(1)(b). ADoc. 1.1 When taken to the police station, Sigler advised Frenzel
of his Miranda rights and read BMV form 2255 to Frenzel. Tr. 42. Frenzel
consented to taking the breath test to determine his blood alcohol content (“BAC”).
Tr. 43. Frenzel made two attempts to provide a sufficient breath sample, but was
unable to do so. Tr. 45. Sigler testified that he then asked Frenzel if he wished to
attempt a third breath test or if he wanted to go to the hospital for a blood draw. Tr.
45. Frenzel consented to having his blood drawn to determine the BAC. Tr. 45.
Sigler then took Frenzel to the hospital to have the blood taken. Tr. 45. Once they
arrived at the hospital, Frenzel laid down on the bed and went to sleep until the
phlebotomist came into the room to take the blood sample. Tr. 46. According to
Sigler, Frenzel was cooperative at all times and voluntarily walked where asked.
Tr. 46. At no time did Frenzel indicate he did not want to take the test after initially
1
The docket for trial court case number 18 TRC06376 will be identified as “ADoc.” The docket for trial
court case number 18 TRD09528 will be identified as “BDoc.”
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Case Nos. 5-20-01 and 5-20-02
consenting. Tr. 47. When asked for consent by the phlebotomist to have blood
drawn, Frenzel consented. Tr. 53. The blood test showed a BAC level of .13. Tr.
49.
{¶3} On July 12, 2018, a complaint was filed charging Frenzel with an OVI
in violation of local ordinance 333.01(A)(1)(b). ADoc. 1. On September 12, 2018,
Frenzel filed a motion to suppress the blood draw due to a warrantless search.
ADoc. 12. A hearing was held on this motion on January 16, 2019. ADoc. 59. The
testimony discussed above was presented at the hearing. On May 20, 2019, the trial
court overruled the motion to suppress on the grounds that Frenzel consented to the
blood draw. ADoc. 24 at 10. On November 21, 2019, Frenzel withdrew his plea of
not guilty and entered a plea of no contest. Doc. 63. After discussing the matter
with Frenzel, the trial court accepted the no contest plea and found Frenzel guilty.
Id. The trial court subsequently sentenced Frenzel to a jail sentence of 365 days
ADoc. 68. Frenzel filed a timely notice of appeal. ADoc. 74.
Appellate Case No. 5-20-02
{¶4} On October 4, 2018, Frenzel was charged with driving with a suspended
license in violation of local ordinance 335.071(A). BDoc. 1. On November 29,
2018, Frenzel filed a motion to suppress alleging that the officer lacked a reasonable
articulable suspicion to stop his vehicle. BDoc. 9. The hearing was held on April
24, 2019. BDoc. 59. Officer Sam Smith (“Smith”) testified that he observed a
vehicle stopped at a stop sign with a clearly painted stop line with the front tires on
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Case Nos. 5-20-01 and 5-20-02
top of the stop bar. Tr. 9. Smith believed that to be a violation of the city ordinance
and proceeded to stop the vehicle and learned that it was driven by Frenzel. Tr. 10-
12. Frenzel told Smith that his license was suspended. Tr. 12. Smith verified this
was the case and issued the citation. Tr. 12. On May 20, 2019, the trial court
overruled the motion to suppress in this case finding there was reasonable,
articulable suspicion for the stop. BDoc. 24. Frenzel later changed his plea from
not guilty to no contest. BDoc. 63. The trial court found Frenzel guilty of driving
under suspension and sentenced him to 30 days in jail. BDoc. 66. A timely notice
of appeal was filed in this case. BDoc. 70.
{¶5} The two cases were consolidated for the purpose of appeal. On appeal,
Frenzel raises the following assignments of error
First Assignment of Error
The trial court in Case No. [5-20-01] erred in denying [Frenzel’s]
motion to suppress as no warrant was obtained for the blood test
and [Frenzel] did not consent to the blood test.
Second Assignment of Error
The trial court in Case No. [5-20-02] erred in denying [Frenzel’s]
motion to suppress as the officer did not have reasonable
suspicion based on specific and articulable facts to initiate a
traffic stop when the tires of [Frenzel’s] vehicle stopped on the
stop line without going over the stop line.
{¶6} The assignments of error allege that the trial court erred in denying both
motions to suppress.
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Case Nos. 5-20-01 and 5-20-02
An appellate review of the trial court’s decision on a motion to
suppress involves a mixed question of law and fact. State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶
8; State v. Norman, 136 Ohio App.3d 46, 51, 735 N.E.2d 953 (3d
Dist. 1999). We will accept the trial court’s factual findings if they
are supported by competent, credible evidence, because the
“evaluation of evidence and the credibility of witnesses” at the
suppression hearing are issues for the trier of fact. State v. Mills,
62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992); Norman at 51, 735
N.E.2d 953; Burnside at ¶ 8. But we must independently
determine, without deference to the trial court, whether these
factual findings satisfy the legal standard as a matter of law
because “the application of the law to the trial court’s findings of
fact is subject to a de novo standard of review.” Norman at 52,
735 N.E.2d 953; Burnside at ¶ 8.
State v. Urdiales, 3d Dist. Henry No. 7-15-03, 2015 -Ohio- 3632, ¶ 12, 38 N.E.3d
907.
Case No. 5-20-01
{¶7} In the first assignment of error, Frenzel claims that the trial court erred
in denying his motion to suppress because the blood draw constituted a warrantless
search. Generally, a blood draw is considered to be a search pursuant to the Fourth
Amendment and a warrant is required unless it falls within a recognized exception.
Missouri v. McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). One
such exception is if the person consents to the search. Schneckloth v. Bustamonte,
412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). That consent need not be
express if it may fairly be inferred from the context. Birchfield v. North Dakota,
136 S.Ct. 2160, 195 L.Ed.2d 560 (2016).
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Case Nos. 5-20-01 and 5-20-02
{¶8} Here, the undisputed testimony was that Frenzel consented to the blood
draw while at the police station. He then walked to the police car for transportation
to the hospital without any indication of refusal. At the hospital, he walked into the
examination room of his own accord. When the phlebotomist asked if he consented
to the blood draw, he consented. At all times, his words and actions indicated that
he was consenting to the blood draw. The trial court found, based upon this
testimony, that Frenzel had consented to the search. All of the evidence supports
this conclusion. Thus, the trial court did not err in finding consent was given and
the first assignment of error is overruled.
Case No. 5-20-02
{¶9} In the second assignment of error, Frenzel alleges that the trial court
erred by finding the officer had a reasonable, articulable suspicion for stopping his
vehicle. “[A] traffic stop is constitutionally valid if an officer has a reasonable and
articulable suspicion that a motorist has committed, is committing, or is about to
commit a crime.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7, 894
N.E.2d 1204. “Therefore, if an officer’s decision to stop a motorist for a criminal
violation, including a traffic violation, is prompted by a reasonable and articulable
suspicion considering all the circumstances, then the stop is constitutionally valid.”
Id. at ¶ 8.
{¶10} In this case, Smith testified that he stopped Frenzel’s vehicle because
he observed the tires of the vehicle on top of the stop line. This Court has addressed
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Case Nos. 5-20-01 and 5-20-02
whether this action is a traffic violation in State v. Miller, 3d Dist. Marion No. 9-
14-50, 2015-Ohio-3529. In Miller, the vehicle in question was straddling the stop
line with the front portion of the vehicle beyond the stop line edge nearest to the
intersecting roadway and the rear portion behind the stop line edge furthest from the
intersecting roadway. R.C. 4511.43 requires a driver to stop at a clearly marked
stop line “at the point nearest the intersecting roadway”. R.C. 4511.43. This Court
held that “it is unlawful to stop astride a clearly marked stop line, and that a motorist
must stop his or her vehicle prior to the point at which the front-most portion of his
or her vehicle will break the plane of the outermost edge of that clearly marked stop
line.” Miller at ¶ 24. In other words, the front-most portion of the vehicle, usually
the bumper, cannot cross the plane of the stop line edge nearest to the intersecting
roadway, although the front-most portion can be atop the stop line. The fact that the
driver in Miller straddled the stop line was found to be sufficient to justify the stop.
{¶11} Here, Smith testified that he observed Frenzel’s tires on top of the stop
line at the stop sign. This testimony raises a reasonable, articulable suspicion that
the front-most portion of the vehicle had broken the plane of the edge of the stop
line that was nearest to the intersecting roadway. Thus, Smith could reasonably stop
the vehicle due to his suspicion that a traffic violation had occurred. Once the
vehicle was stopped, Frenzel provided probable cause for the citation by admitting
that he was driving while his license was suspended, a fact that was confirmed by
Smith prior to the issuance of the citation. Given these facts, the trial court did not
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Case Nos. 5-20-01 and 5-20-02
err in finding Smith had reasonable, articulable suspicion to stop the vehicle and the
second assignment of error is overruled.
{¶12} Having found no prejudicial error in particulars assigned and argued,
the judgments of the Findlay Municipal Court are affirmed.
Judgments Affirmed.
PRESTON and ZIMMERMAN, J.J., concur.
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