State v. Faulkner

[Cite as State v. Faulkner, 2021-Ohio-733.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-20
:
v. : Trial Court Case No. 2020-TRC-280
:
PAUL FAULKNER : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 12th day of March, 2021.
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MARK M. FEINSTEIN, Atty. Reg. No. 0065183, Municipal Court Prosecutor’s Office, 205
South Main Street, 2nd Floor, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio
45409
Attorney for Defendant-Appellant
.............
EPLEY, J.
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{¶ 1} Defendant-Appellant Paul Faulkner pled no contest to and was found guilty
of operating a vehicle while under the influence of alcohol or drugs (OVI), in violation of
R.C. 4511.19(A)(1)(a) (second violation in ten years), a first-degree misdemeanor. Prior
to entering his plea, the trial court overruled his motion to suppress evidence after a
hearing. Faulkner appeals his conviction, claiming that the trial court erred in denying
his motion to suppress the results of his urine test. For the following reasons, the trial
court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} At approximately 1:15 a.m. on February 16, 2020, Champaign County
Sheriff’s Deputy Christopher Culler initiated a traffic stop after observing a 2002 Chevy
truck cross the marked white line several times and drive 10 to 20 mph below the speed
limit on northbound South U.S. Highway 68 in Urbana. Deputy Culler approached the
truck and spoke with Faulkner, the driver of the vehicle. The deputy believed that
Faulkner was under the influence of “something” after speaking with and observing him.
The deputy then conducted field sobriety tests, which Faulkner failed. Faulkner admitted
to taking several medications around 10:00 p.m. and drinking two beers about five hours
before the stop.
{¶ 3} After another deputy arrived on the scene, Deputy Culler placed Faulkner
under arrest for OVI and informed Faulkner of his Miranda rights. Deputy Culler read
BMV Form 2255 to Faulkner, and Faulkner agreed to provide a urine sample. (The
deputy’s court statement filed with the complaints indicated that Deputy Culler read Form
2255 at the scene, but Culler testified that he read it to Faulkner at the patrol office.)
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{¶ 4} At 1:50 a.m., Faulkner provided a urine sample for Deputy Culler at the
Urbana patrol station. Faulkner urinated into a screw top plastic container, which Deputy
Culler sealed. The deputy wrote his name, Faulkner’s name, and the date and time of
collection on the seal. The sample was sent to the Ohio State Highway Patrol Lab for
analysis.
{¶ 5} Faulkner was charged with OVI, in violation of R.C. 4511.19(A)(1)(a) (second
violation in ten years); slow speed, in violation of R.C. 4511.22; and failure to drive in
marked lanes, in violation of R.C. 4511.33(A). On February 18, 2020, Faulkner pled not
guilty to the charges in the Champaign County Municipal Court.
{¶ 6} Emily McAnulty, a criminalist in the toxicology section of the Ohio State
Highway Patrol Lab, tested Faulkner’s urine sample for drugs. She reported that the
sample contained 46.51 ng/ml (plus or minus 4.65 ng/ml) of a THC metabolite.
{¶ 7} On May 7, 2020, Faulkner moved to suppress “any and all evidence garnered
from his urine screen.” He asserted that the deputy had failed to comply with the Ohio
Department of Health’s approved methods for collection, storage, and testing of the urine.
On May 21, the trial court held a suppression hearing, during which the State presented
the testimony of Deputy Culler and McAnulty, as well as four exhibits. McAnulty brought
the urine sample to the suppression hearing, and she indicated that the white label on it
had been prepared by the deputy. The sample was not offered into evidence. Faulkner
testified on his own behalf at the hearing.
{¶ 8} The parties submitted post-hearing memoranda. Faulkner’s memorandum
argued that Ohio Department of Health (ODH) regulations had not been followed properly,
because the information required by Ohio Adm.Code 3701-53-05(E) was not on the
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container itself. Faulkner asserted that “said information was only included on a label
later placed upon the container and outside the view of the Defendant.”
{¶ 9} The trial court overruled the motion to suppress, concluding that there was
substantial compliance with Ohio Adm.Code 3701-53-05, the regulation concerning the
collection of blood and urine samples.
{¶ 10} On August 6, 2020, Faulkner pled no contest to OVI (second violation in ten
years). In exchange for the plea, the State dismissed the slow speed and marked lanes
charges. The trial court sentenced Faulkner to 180 days in jail, with 160 days suspended
and credit for 8 days already served. The court also imposed a $900 fine plus court
costs, for a total of $1,246. The court suspended Faulkner’s driver’s license for five years
and placed him on community control for 36 months.
{¶ 11} Faulkner appeals from the trial court’s judgment.
II. Compliance with ODH Labeling Requirements
{¶ 12} In his sole assignment of error, Faulkner claims that the trial court erred in
overruling his motion to suppress. He argues that the deputy failed to substantially
comply with the labeling requirements of Ohio Adm.Code 3701-53-05 when collecting
Faulkner’s urine sample. Faulkner does not challenge the validity of the traffic stop or
his arrest, nor does he claim on appeal that the deputy failed to comply with other
requirements of Ohio Adm.Code 3701-53-05.
{¶ 13} In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639
N.E.2d 498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-
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116, ¶ 30. Accordingly, when we review suppression decisions, we must accept the trial
court’s findings of fact if they are supported by competent, credible evidence. Retherford
at 592. “Accepting those facts as true, we must independently determine as a matter of
law, without deference to the trial court’s conclusion, whether they meet the applicable
legal standard.” Id.{¶ 14} R.C. 4511.19(D)(1)(b) and R.C. 3701.143 authorize the director of health to
promulgate regulations for analyzing bodily substances for purposes of R.C. 4511.19(A).
See State v. Baker, 146 Ohio St.3d 456, 2016-Ohio-451, 58 N.E.3d 1114, ¶ 25. Ohio
Adm.Code 3701-53-05, which was promulgated by the director of health, concerns the
collection of blood and urine samples. With respect to urine samples, that section
provides:
(D) The collection of a urine specimen must be witnessed to assure that the
sample can be authenticated. Urine shall be deposited into a clean glass
or plastic screw top container which shall be capped, or collected according
to the laboratory protocol as written in the laboratory procedure manual[.]
(E) Blood and urine containers shall be sealed in a manner such that
tampering can be detected and have a label which contains at least the
following information:
(1) Name of suspect;
(2) Date and time of collection;
(3) Name or initials of person collecting the sample; and
(4) Name or initials of person sealing the sample.
(F) While not in transit or under examination, all blood and urine specimens
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shall be refrigerated.
Ohio Adm.Code 3701-53-05(D)-(F).
{¶ 15} When the admissibility of the result of a blood or urine test is challenged in
a motion to suppress, the State bears the burden of showing substantial compliance with
R.C. 4511.19(D)(1) and Ohio Adm.Code Chapter 3701-53. See, e.g., State v. Burnside,
100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 24, ¶ 27; State v. Aicher, 2018-
Ohio-1866, 112 N.E.3d 85, ¶ 31 (2d Dist.). Substantial compliance is met when there
are only “minor procedural deviations” from the proscribed standards. Burnside at ¶ 34.
{¶ 16} If the State meets its burden of going forward with evidence demonstrating
substantial compliance, the test result is presumed admissible. E.g., Aicher at ¶ 31;
State v. Tenney, 2d Dist. Montgomery No. 24999, 2012-Ohio-3290, ¶ 5; State v. Hardesty,
5th Dist. Stark No. 2018CA00178, 2020-Ohio-246, ¶ 23, citing Baker at ¶ 23. The burden
then shifts to the defendant to rebut the presumption by demonstrating prejudice from the
State’s failure to strictly comply with the applicable regulations in the Ohio Administrative
Code. Burnside at ¶ 24; Tenney at ¶ 5.
{¶ 17} Deputy Culler testified at the suppression hearing about the procedures he
used to obtain a urine sample from Faulkner. The deputy said that he retrieved a test kit
provided by the Ohio State Highway Patrol Lab, opened the box in front of Faulkner, and
examined the plastic container to ensure that it was not damaged. Deputy Culler testified
that he wrote his name, Faulkner’s name, the date, and the time on the seal prior to
obtaining a sample from Faulkner. (Supp. Tr. 11, 13.) Deputy Culler stated on cross-
examination that Faulkner’s name, the deputy’s name, and the time and date of collection
were not written on the plastic container itself. (Supp. Tr. 11-12.)
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{¶ 18} Deputy Culler testified that he escorted Faulkner to a bathroom, where
Faulkner provided a urine sample with the deputy watching. Deputy Culler indicated that
he added a stabilizer to the urine sample and “immediately” placed the seal over the top
of the screw cap to seal the container. (Supp. Tr. 5, 11.) The deputy testified that the
seal was placed in such a manner that it covered both the screw top and the container
itself and the seal would be broken if someone tampered with it; he stated that the crime
lab “would know immediately.” (Supp. Tr. 13.)
{¶ 19} The deputy then placed the urine sample back into the original box. He
completed a crime lab submission form, placed the form in the box, and sealed the box
with two evidence labels on both sides. (Supp. Tr. 5.) The box was sent “right off” to
the State Highway Patrol Crime Lab. Culler identified a Property Control/Crime Lab
Submission Form (State’s Exhibit A) as the form he completed and placed inside the box.
The form requested examination for alcohol and all available drugs.
{¶ 20} The Ohio State Highway Patrol Crime Lab received Faulkner’s sealed urine
sample on February 19, 2020. (State’s Exhibit B.) Edward Yingling performed an
alcohol test on the sample. Emily McAnulty subsequently tested the sample for any
types of drugs.
{¶ 21} McAnulty testified at the suppression hearing about the chain of custody at
the crime lab. On review of the accompanying paperwork, McAnulty stated that she saw
no indication of any break in the chain of custody for the sample. McAnulty testified that
the lab’s chain of custody report (State’s Exhibit C) indicated that the urine sample was
sealed upon receipt, and there was no indication on the additional internal paperwork
(State’s Exhibit B) that there were issues with tampering or other abnormalities.
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McAnulty further stated that the paperwork indicated that the sample had been properly
refrigerated and packaged. Based on her experience of having conducted 7,000 to
8,000 tests, McAnulty stated her opinion that the collection, storage, and testing of the
sample complied with ODH regulations.
{¶ 22} On cross-examination, defense counsel questioned McAnulty about the
sample’s movement through the lab and when the sample was taken in and out of
refrigeration. During defense counsel’s questioning, McAnulty stated that samples are
not resealed, because the lab had found that “the types of seals that we would have to
add would obscure the original seal to where you wouldn’t be able to read the other
identifying information.” (Supp. Tr. 33.) McAnulty stated that the refrigerators are
secured and only limited individuals have access. She indicated that once testing is
complete, the sample is placed in a plastic heat-sealed bag and then placed in the lab’s
freezer.
{¶ 23} Testifying on his own behalf, Faulkner stated that he had driven a tractor
trailer for 25 years and had submitted to at least 150 urine tests related to that
employment. As to the events of February 16, Faulkner testified that Deputy Culler took
him to a room (not a restroom) where Faulkner urinated into a plastic cup. Faulkner
stated that the deputy put the cap on the container, but did not seal it, and then walked
out of the room. Faulkner had not seen the sample since. Faulkner testified that, based
on his past experience, the sample “was supposed to go into a chain of evidence bag,
and they seal it; and I’m to initial that bag too.” (Supp. Tr. 39-40.) Faulkner further
stated that “the sample that we just saw” at the suppression hearing was not the “vial”
that he had urinated into and that he had never seen that seal before. On cross-
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examination, Faulkner acknowledged that he had not previously provided a urine sample
at a patrol office under the circumstances in this case. (Supp. Tr. 40.) Faulkner further
stated that he could not prove that the deputy tampered with the sample.
{¶ 24} In denying the motion to suppress, the trial court credited Deputy Culler’s
testimony, stating that the deputy’s testimony established substantial compliance with
ODH regulations.
{¶ 25} On appeal, Faulkner argues that Deputy Culler “totally failed to label the
urine specimen container” and, consequently, the deputy failed to substantially comply
with ODH regulations. Faulkner states: “Here, the crime lab received an unmarked
container and its reliance on labeling placed on the outside of the box containing the
container is woefully inadequate in satisfying chain of custody requirements of law.”
Faulkner relies on State v. Butt, 2d Dist. Montgomery No. 16215, 1997 WL 568013 (Aug.
27, 1997), to support his contention.
{¶ 26} The evidence at the suppression hearing refutes Faulkner’s assertion that
the label was only placed on the outside of the box containing Faulkner’s urine sample.
Rather, Detective Culler’s testimony established that Faulkner urinated into a plastic
screw top container and that the deputy placed a seal on the screw top and container that
included Faulkner’s name, the deputy’s name, and the date and time of collection.
Moreover, Ohio Adm.Code 3701-53-05(E) expressly provides for the information to be
written on “a label”; the information need not be written directly onto the plastic container,
as Faulkner asserted in the trial court. Based on the State’s evidence, which the trial
court credited, we conclude that the deputy substantially, if not strictly, complied with the
requirements of Ohio Adm.Code 3701-53-05(D)-(E). Accord Hardesty, 5th Dist. Stark
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No. 2018CA00178, 2020-Ohio-246, at ¶ 28 (finding the officer substantially complied with
collection and labeling requirements of Ohio Adm.Code 3701-53-05(E) when he “capped
the urine specimen and sealed the cup with evidence tape which was labeled with
Appellant’s name, date, time of collection and the officer’s initials”).
{¶ 27} At the suppression hearing, Faulkner asserted that the deputy’s collection
procedure was defective, because he (Faulkner) did not initial the container. Ohio
Adm.Code 3701-53-05(E) contains no requirement that a suspect initial the container or
label.
{¶ 28} We further find Butt to be distinguishable. In that case, the record
demonstrated that a sample of Butt’s blood was drawn and placed in a stoppered vial to
which a sticker was affixed containing the information required by Ohio Adm.Code 3701-
53-05(E). Butt, 2d Dist. Montgomery No. 16215, 1997 WL 568013, at *4. However, the
sticker did not seal the vial, and the vial itself was not otherwise sealed. The vial was
placed for shipment in a small box that was sealed with “evidence tape.” Id. On review
of the trial court’s denial of Butt’s motion to suppress, we held that the procedure did not
substantially comply with the sealing requirements of Ohio Adm.Code 3701-53-05(E).
We noted that “[t]he procedure that was followed here could allow the blood sample to be
contaminated before the unsealed vial was placed in the box, or afterward if the box was
opened then taped closed again.” Id.{¶ 29} The defendant in Butt did not claim that the label on the blood sample did
not comply with ODH regulations, and Faulkner does not claim on appeal that Deputy
Culler failed to comply with the regulations regarding the sealing of the container. Even
if Faulkner had, Deputy Culler testified that he placed the seal in such a manner that it
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covered both the screw top and the container itself and that the seal would be broken if it
were tampered with. McAnulty further testified that Faulkner’s urine specimen container
was sealed and labeled appropriately when it arrived at the lab. Accordingly, there was
substantial compliance with the sealing requirements of Ohio Adm.Code 3701-53-05(E).
{¶ 30} Faulkner’s assignment of error is overruled.
III. Conclusion
{¶ 31} The trial court’s judgment will be affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mark M. Feinstein
Gary C. Schaengold
Hon. Gil S. Weithman