State v. Hale

[Cite as State v. Hale, 2023-Ohio-980.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 10-22-01
v.
TEDDY E. HALE, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 21-CRM-008
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: March 27, 2023
APPEARANCES:
Chima R. Ekeh for Appellant
Anthony J. Miller for Appellee
Case No. 10-22-01
MILLER, P.J.
{¶1} Defendant-appellant, Teddy E. Hale, appeals the decision of the Mercer
County Court of Common Pleas denying his motion to suppress the results of blood
and urine testing. Hale also attacks the evidentiary basis for his convictions for
driving under a 12-point suspension, driving under a financial responsibility law
suspension, and aggravated vehicular homicide. For the reasons that follow, we
affirm in part and reverse in part.
I. Facts & Procedural History
{¶2} On the afternoon of September 27, 2020, Hale was driving his 2013
Chevrolet Impala in Celina, Ohio when he slammed into the back of a 2006 Honda
motorcycle driven by Yvonne Noel. Noel was ejected from her motorcycle and
ultimately died as a result of the collision. Patrolman Nathan Miller of the Celina
Police Department responded to the scene of the crash and established contact with
Hale. Patrolman Miller collected Hale’s information and relayed it to his dispatcher,
who advised, “His status is suspended.” (State’s Trial Ex. 1). Patrolman Miller
then asked Hale whether he would be willing to provide blood and urine samples
for testing. Hale agreed and, sometime later, blood and urine samples were collected
from Hale at a local hospital. Subsequent testing of Hale’s blood and urine revealed
the presence of methamphetamine, amphetamine, tramadol, and a THC metabolite.
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{¶3} On January 21, 2021, the Mercer County Grand Jury returned a 14-
count indictment against Hale. As relevant to this case, Hale was indicted on one
count of aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a). The
indictment alleged that, at the time of the offense, Hale “was driving under a
suspension or cancellation imposed under Chapter 4510. or any other provision of
the Revised Code,” thereby elevating the aggravated-vehicular-homicide offense to
a first-degree felony. In addition, Hale was charged with one count of driving under
a 12-point suspension in violation of R.C. 4510.037(J), a first-degree misdemeanor,
and one count of driving under a financial responsibility law (“FRA”)1 suspension
or cancellation in violation of R.C. 4510.16(A), an unclassified misdemeanor. On
February 3, 2021, Hale appeared for arraignment and pleaded not guilty to the
counts of the indictment.
{¶4} On January 26, 2021, Hale filed a motion to suppress the results of the
blood and urine testing. In support of his motion, Hale argued that the test results
should be suppressed because his consent was obtained by deceptive or coercive
means. Following briefing between the parties, a suppression hearing was held on
May 13, 2021. On June 11, 2021, the trial court denied Hale’s suppression motion.
Among other things, the trial court found:
[T]he facts establish that [Hale] voluntarily submitted to being present
at the hospital with the officer for the purpose of submitting to the
1
Although R.C. 4510.16 refers to “financial responsibility law” suspensions, suspensions of this type are
customarily referred to as “financial responsibility act” or “FRA” suspensions.
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blood and urine tests; that the officer used no coercive procedures in
order to obtain [Hale’s] consent to provide the blood and urine
sample; that [Hale] was extremely cooperative with not only law
enforcement, but the hospital representatives * * *; that [Hale] was
completely lucid and aware of his right to refuse to consent; that
[Hale] acted as an educated and intelligent person in consenting to the
blood and urine draws; and that [Hale] believed that the [blood and
urine samples] would provide evidence of the presence of some
residual drug and alcohol content.
(Doc. No. 62). The trial court concluded that notwithstanding Hale’s claims of
involuntariness, “the evidence clearly establishes that the draws of blood and urine
* * * were not performed in violation of his Fourth and Fourteenth Amendment
protections against warrantless searches of his body for those substances because he
voluntarily * * * consent[ed] to provide those samples.” (Doc. No. 62).
{¶5} At a September 13, 2021 pre-trial hearing, Hale moved to bifurcate the
12-point-suspension and FRA-suspension charges from the remaining charges in
the indictment and have them resolved with a bench trial. The trial court granted
Hale’s motion and ordered that the 12-point-suspension and FRA-suspension
charges would be tried before the court on September 30, 2021. At trial, Hale
defended against the suspension charges by arguing that he was not actually under
a 12-point suspension at the time of the September 27, 2020 incident, and that even
if he was under an FRA suspension, he did not have legally sufficient notice of the
suspension. Nevertheless, on November 22, 2021, the trial court found Hale guilty
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both of driving under a 12-point suspension and of driving under an FRA
suspension.
{¶6} As to the remaining charges, a change-of-plea hearing was held on
December 6, 2021. At the hearing, Hale withdrew his previous plea of not guilty to
the aggravated-vehicular-homicide charge and tendered a no-contest plea. The
prosecutor entered a nolle prosequi with respect to the remaining eleven counts of
the indictment. The trial court accepted Hale’s no-contest plea and found him
guilty. The trial court continued sentencing pending completion of a presentence
investigation report.
{¶7} A sentencing hearing was held on January 12, 2022. At the hearing, the
trial court sentenced Hale to 6-9 years in prison for aggravated vehicular homicide
and 180 days in jail for driving under a 12-point suspension. The trial court ordered
that those terms of incarceration be served concurrently. The trial court also fined
Hale $100 for driving under an FRA suspension. Finally, the trial court suspended
Hale’s driver’s license for 15 years. The trial court filed its judgment entry of
sentence on January 14, 2022.
II. Assignments of Error
{¶8} On February 11, 2022, Hale timely filed a notice of appeal. He raises
the following two assignments of error for our review:
1. The trial court violated the Fourth Amendment to the United
States Constitution and Section 14, Article I of the Ohio
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Constitution’s prohibition against unreasonable searches and
seizures when it denied Hale’s motion to suppress the blood and
urine test results.
2. The trial court erred as a matter of law in convicting
defendant for driving under a 12-point suspension under R.C.
4510.037(J), and FRA suspension under R.C. 4510.16(A),
4510.16(D)(1) because the evidence was insufficient to sustain a
finding of guilt.
III. Discussion
A. First Assignment of Error: Did the trial court err by denying Hale’s motion
to suppress evidence?
{¶9} In his first assignment of error, Hale contends that the trial court erred
by denying his suppression motion. Hale maintains that he did not voluntarily
consent to provide blood and urine samples because he was misinformed regarding
the consequences of withholding consent and because other coercive measures were
used to obtain his consent.
i. Suppression Motion Standard of Review
{¶10} “Appellate review of a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At
a suppression hearing, the trial court assumes the role of trier of fact and, as such, is
in the best position to evaluate the evidence and the credibility of witnesses. Id.See State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a
motion to suppress, “an appellate court must accept the trial court’s findings of fact
if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State
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v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of
law, however, our standard of review is de novo, and we must independently
determine whether the facts satisfy the applicable legal standard. Id., citing State v.
McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
ii. The Constitutionality of Consent Searches
{¶11} Generally, warrantless searches are unreasonable, and therefore
impermissible, under both the Fourth Amendment to the United States Constitution
and Article I, Section 14 of the Ohio Constitution. State v. Ward, 1st Dist. Hamilton
No. C-160560, 2017-Ohio-8141, ¶ 13; State v. Smith, 73 Ohio App.3d 471, 474-475
(6th Dist.1991). However, the warrant requirement is subject to a handful of
“specifically established and well-delineated exceptions.” Katz v. United States,
389 U.S. 347, 357, 88 S.Ct. 507 (1967); State v. Nickelson, 7th Dist. Belmont No.
16 BE 0039, 2017-Ohio-7503, ¶ 15, quoting Xenia v. Wallace, 37 Ohio St.3d 216,
218 (1988). “One specifically established exception to the warrant requirement is
‘a search that is conducted with consent.’” State v. Hawkins, 10th Dist. Franklin
No. 15AP-35, 2016-Ohio-1404, ¶ 98, quoting State v. Portman, 2d Dist. Clark No.
2013-CA-68, 2014-Ohio-4343, ¶ 11. “‘“[W]here the validity of a search rests on
consent, the State has the burden of proving that the necessary consent was obtained
and that it was freely and voluntarily given, a burden that is not satisfied by showing
a mere submission to a claim of lawful authority.”’” State v. Nwachukwa, 3d Dist.
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Marion No. 9-15-03, 2015-Ohio-3282, ¶ 28, quoting State v. Aguirre, 3d Dist.
Seneca Nos. 13-11-19 and 13-11-20, 2012-Ohio-2014, ¶ 12, quoting Florida v.
Royer, 460 U.S. 491, 497, 103 S.Ct. 1319 (1983).
{¶12} Whether consent was freely and voluntarily given, or whether it was
the product of duress, coercion, or deception, is a question of fact to be determined
from the totality of the circumstances. See State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, ¶ 99, citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93
S.Ct. 2041 (1973).
Factors to be considered in determining whether consent is voluntarily
given include: (1) the suspect’s custodial status and the length of the
detention; (2) whether consent was given in public or at a police
station; (3) the presence of threats, promises, or coercive police
procedures; (4) the words and conduct of the suspect; (5) the suspect’s
awareness of his right to refuse consent and his status as a “newcomer
to the law”; and (6) the suspect’s education and intelligence.
State v. Barnes, 3d Dist. Marion No. 9-16-58, 2017-Ohio-7284, ¶ 10, quoting State
v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 23. Also relevant are
“the extent and level of the defendant’s cooperation” and “the defendant’s belief
that no incriminating evidence would be found.” State v. Morris, 2d Dist. Clark No.
2021-CA-31, 2022-Ohio-94, ¶ 22. As the question of the voluntariness of the
defendant’s consent is ultimately one of fact, it is “a determination best left to the
trier of fact, i.e. the court, and will not be reversed unless it is not supported by
competent credible evidence.” State v. Carothers, 5th Dist. Tuscarawas No. 2015
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AP 04 0017, 2015-Ohio-4569, ¶ 30; see State v. Gomez, 5th Dist. Muskingum No.
CT2018-0025, 2019-Ohio-481, ¶ 45 (stating that a trial court’s determination of the
voluntariness of a defendant’s consent “will not be reversed on appeal unless clearly
erroneous”).
iii. The trial court did not err by denying Hale’s motion to suppress evidence.
{¶13} We begin with a review of the testimony and other evidence presented
at the May 13, 2021 suppression hearing. The evidence established that Patrolman
Miller responded to the scene of the crash at approximately 4:20 p.m. on September
27, 2020, not long after the collision. Patrolman Miller testified that he spoke to
Hale and determined he was the at-fault driver. (May 13, 2021 Tr. at 25, 30).
Patrolman Miller stated that, given the seriousness of the collision, he wanted to
preserve samples of Hale’s blood and urine for potential testing. (May 13, 2021 Tr.
at 31-32). According to Patrolman Miller, when he was speaking with Hale at the
scene of the crash, Hale did not exhibit any signs of impairment. (May 13, 2021 Tr.
at 32). Patrolman Miller did not believe that he had probable cause to arrest Hale
for operating his vehicle under the influence of alcohol or drugs, and he did not
think he then had probable cause to obtain a search warrant for Hale’s blood and
urine. (May 13, 2021 Tr. at 32-33). Therefore, Patrolman Miller testified, he asked
Hale whether he would accompany him to the local hospital to provide blood and
urine samples. (May 13, 2021 Tr. at 30, 32-33). Patrolman Miller stated that
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although Hale admitted he had smoked marijuana several days earlier, he consented
to the blood draw and urine collection. (May 13, 2021 Tr. at 30-31, 33).
{¶14} Patrolman Miller testified that Hale was not under arrest when he
initially consented to provide blood and urine samples. (May 13, 2021 Tr. at 34).
From the time Hale first gave his consent through the time the blood and urine
samples were obtained, Hale was neither placed in handcuffs nor threatened with
being handcuffed. (May 13, 2021 Tr. at 34, 40, 50); (State’s Suppression Hearing
Ex. 6). In addition, Hale was permitted to retain his cellphone and was in contact
with his father and girlfriend throughout the relevant time period. (May 13, 2021
Tr. at 34, 50); (State’s Suppression Hearing Ex. 6). According to Patrolman Miller,
as he and Hale were driving to pick up the blood and urine test kit before proceeding
to the hospital, he and Hale did not discuss the matter of Hale’s consent or whether
Hale might withdraw his consent. (May 13, 2021 Tr. at 39).
{¶15} The footage from Patrolman Miller’s body-worn camera, which was
submitted as Exhibit 6 at the suppression hearing, reflects that Patrolman Miller and
Hale approached the hospital doors at approximately 5:32 p.m. (State’s Suppression
Hearing Ex. 6). As Patrolman Miller and Hale walked toward the hospital doors,
Hale told Patrolman Miller that he had received a text message from his girlfriend
informing him that he “might have taken an Adderall last night,” but that neither he
nor his girlfriend could remember with certainty. (State’s Suppression Hearing Ex.
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6). Hale also stated that he “drank too,” indicating that he “only drank a couple”
and that it only took him three drinks to become intoxicated because he “never
drink[s].” (State’s Suppression Hearing Ex. 6). Hale asked Patrolman Miller
whether the blood and urine testing would detect alcohol and Adderall, to which
Patrolman Miller responded that he believed “alcohol comes out of your system
pretty quickly.” (State’s Suppression Hearing Ex. 6).
{¶16} Upon entering the hospital, Patrolman Miller and Hale were escorted
to the hospital’s laboratory. There, Patrolman Miller informed Lauren Osterholt, a
hospital employee assigned to conduct the blood draw, that he “has a gentleman
here, he’s consenting to a blood and urine.” (State’s Suppression Hearing Ex. 6).
Hale said nothing in response to Patrolman Miller’s statement. (State’s Suppression
Hearing Ex. 6). Osterholt then directed Patrolman Miller and Hale to a waiting area
outside of the laboratory. While they were waiting, Patrolman Miller thanked Hale
for “being cool about everything and consenting and helping us out and being
honest.” (State’s Suppression Hearing Ex. 6). Hale responded genially, expressing
no reservation or hesitation about consenting. (State’s Suppression Hearing Ex. 6).
During the approximately nine-minute period that Patrolman Miller and Hale were
in the waiting area before going back to the blood-draw room, and indeed during
the entirety of their time inside of the hospital, Patrolman Miller and Hale’s
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conversation was relaxed, friendly, and unreserved. (State’s Suppression Hearing
Ex. 6).
{¶17} Patrolman Miller and Hale were then directed to the blood-draw room.
As they entered the room and took their seats, Hale’s hands were free, and he was
looking at something on his cellphone. (State’s Suppression Hearing Ex. 6).
Osterholt, who followed Patrolman Miller and Hale into the blood-draw room,
asked Patrolman Miller for confirmation that he did not have a search warrant.
Patrolman Miller confirmed that he did not have a search warrant and stated that
Hale “said he’s going to consent to everything, he’s been absolutely fantastic.”
(State’s Suppression Hearing Ex. 6). Hale, who continued to look at something on
his cellphone, said nothing in response to this statement. (State’s Suppression
Hearing Ex. 6). Osterholt then presented Hale with a consent form utilized by the
hospital and said, “I just need you to sign here, so this is your consent to drug/alcohol
testing. * * * I just need you to sign there, ok, if you’re consenting and then if you’re
refusing, there. * * * Consenting is the top part.” (State’s Suppression Hearing Ex.
6). Osterholt physically indicated where Hale would affix his signature if he was
consenting and where he would affix his signature if he was refusing. (State’s
Suppression Hearing Ex. 6).
{¶18} The form given to Hale, which was submitted as Exhibit 1 at the
suppression hearing, provided as follows:
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CONSENT TO DRUG/ALCOHOL TESTING
I ______________________ consent to have blood, urine, or other
body fluid collected for the purpose of testing for alcohol/drug
content.
***
REFUSAL FOR DRUG/ALCOHOL TESTING
I ______________________ refuse to have blood, urine, or other
body fluid collected for the purpose of testing for alcohol/drug
content. I understand that refusing to consent subjects me to a
suspension of my driving privileges.2
(Capitalization, underlining, and boldface sic.) (State’s Suppression Hearing Ex. 1).
Beneath each of these sections were spaces provided for patient and hospital
employee signatures. (State’s Suppression Hearing Ex. 1). After the consent and
refusal sections, the form contained a section that was titled “ATTESTATION OF
LAW ENFORCEMENT OFFICER FOR INVOLUNTARY
DRUG/ALCOHOL TEST WITHOUT WARRANT OR COURT ORDER.”
(Capitalization and boldface sic.) (State’s Suppression Hearing Ex. 1). This section,
which could be completed in the event the patient refused drug and alcohol testing,
provided that upon a law enforcement officer’s certification that they had the lawful
authority to authorize a warrantless, involuntary drug or alcohol test, the hospital
would cooperate “provided that the testing complie[d] with Ohio law and d[id] not
2
It is unclear why this language is contained in the hospital’s consent form, especially considering that it is
both an incomplete and inaccurate statement of the law.
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pose an undue risk to the safety of Hospital personnel.” (State’s Suppression Ex.
1). This section further required the certifying law enforcement officer to
acknowledge that “the Hospital is not responsible for restraining or use of force
necessary to restrain and control the Patient.” (State’s Suppression Ex. 1).
{¶19} While Osterholt finished explaining the consent form to Hale, Hale
began filling the form out in the spaces provided for consent to drug or alcohol
testing. (State’s Suppression Hearing Exs. 1, 6). The form remained in front of
Hale as Osterholt went to sign her name to the form. (State’s Suppression Hearing
Ex. 6). As Osterholt was signing the consent form, Hale pulled out his cellphone
and placed a phone call. (State’s Suppression Hearing Ex. 6). As the phone call
was going through, Osterholt directed Hale’s attention back to the form so that he
could sign beneath the consent section. (State’s Suppression Hearing Ex. 6). Hale
did not sign immediately but instead fixed his eyes on the form for approximately
20 seconds while talking on the phone. (State’s Suppression Hearing Ex. 6).
{¶20} At the end of that 20-second period, Hale put his cellphone down and
asked Patrolman Miller, “What happens if I refuse this?” (State’s Suppression
Hearing Ex. 6). Hale also asked, “Are they are going to like, I don’t know, put me
in jail or something?” (State’s Suppression Hearing Ex. 6). Patrolman Miller
responded that the results of the blood and urine testing would not be known for “a
long time,” thus indicating there would not be an immediate arrest if the results were
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not favorable to him. (State’s Suppression Hearing Ex. 6). Hale then asked
Patrolman Miller, “What happens if I do refuse this? Are you just going to get it
anyway?” (State’s Suppression Hearing Ex. 6). Patrolman Miller replied, “I’m
going to get a search warrant.” (State’s Suppression Hearing Ex. 6). In response,
Hale shook his head, placed his pen to the form to begin signing, and said, “I don’t
want to deal with this shit.” (State’s Suppression Hearing Ex. 6).
{¶21} As Hale was signing the form, Patrolman Miller advised him, “If you
want to refuse, you can refuse.” (State’s Suppression Hearing Ex. 6). Hale then
pulled his pen back from the consent form and said, “I would like to talk to my
lawyer, but I don’t know how to get ahold of him.” (State’s Suppression Hearing
Ex. 6). Shaking his head, Hale then stated, “It is what it is, right? I guess.” (State’s
Suppression Hearing Ex. 6). In reply, Patrolman Miller reminded Hale, “It’s up to
you, buddy.” (State’s Suppression Hearing Ex. 6). Hale then asked Patrolman
Miller, “What happens if I refuse, then you release me? Or?” (State’s Suppression
Hearing Ex. 6). Patrolman Miller responded, “I’m getting a search warrant. I’m for
sure getting a search warrant.” (State’s Suppression Hearing Ex. 6). Hale asked
whether that meant that he could leave the hospital and that Patrolman Miller would
then come and get him. (State’s Suppression Hearing Ex. 6). Patrolman Miller
replied, “No, you’re going to stay with me.” (State’s Suppression Hearing Ex. 6).
Hale then shook and nodded his head and finished signing the consent form. (State’s
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Suppression Hearing Ex. 6). As he was signing, Hale stated that he was “not guilty
or anything” but that he might have taken something, though neither he nor his
girlfriend could recall whether he had. (State’s Suppression Hearing Ex. 6). Hale
then sat back and expressed that he expected that “weed and Adderall” would appear
in his blood and urine. (State’s Suppression Hearing Ex. 6).
{¶22} After he finished signing the consent form, Patrolman Miller and Hale
conversed amicably for several minutes. Osterholt, who had left the blood-draw
room in the interim, returned and reviewed the consent form. Osterholt observed
that Hale had not noted the time of his signature. Hale remedied his oversight by
writing the then-present time, 5:52 p.m., on the consent form. (State’s Suppression
Hearing Exs. 1, 6). Osterholt then collected the consent form from Hale and
proceeded to withdraw Hale’s blood. (State’s Suppression Hearing Ex. 6).
Thereafter, Patrolman Miller collected a urine sample from Hale without revisiting
the issue of his consent. (State’s Suppression Hearing Ex. 6).
{¶23} Regarding Hale’s custodial status, Patrolman Miller testified that
although Hale was eventually arrested for driving under a 12-point suspension after
the blood and urine samples were collected, he was never placed under arrest for
operating his vehicle under the influence of alcohol or drugs. (May 13, 2021 Tr. at
82); (See State’s Suppression Hearing Ex. 6). However, Patrolman Miller agreed
that at the moment Hale was inquiring about the consequences of refusal, Hale was
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not free to leave without providing blood and urine samples. (May 13, 2021 Tr. at
79-80). Additionally, Patrolman Miller stated that he never asked Hale to submit to
field sobriety testing because Hale did not display any indicators of intoxication in
spite of his admissions to smoking marijuana, drinking alcohol, and possibly
ingesting Adderall. (May 13, 2021 Tr. at 59-60, 81). With respect to the consent
form, Patrolman Miller testified that he did not provide the consent form to the
hospital, look at the form before it was handed to Hale, or review the consent form
with Hale. (May 13, 2021 Tr. at 48, 78, 83). According to Patrolman Miller, he
had no idea what Hale was looking at when he asked about the consequences of
refusal, and Hale did not ask him or Osterholt any questions about the consent form.
(May 13, 2021 Tr. at 84).
{¶24} Having reviewed the evidence submitted at the suppression hearing,
we agree with the trial court that Hale’s consent bore many of the hallmarks of
voluntariness. Hale first gave his consent in public at the scene of the crash, rather
than inside the confines of a police station interrogation room, and after willingly
accompanying Patrolman Miller to the hospital, Hale reaffirmed his consent in the
similarly unoppressive environment of a hospital examination room. Hale was not
handcuffed at any point before the blood and urine samples were obtained, and he
was allowed unrestricted use of his cellphone. Furthermore, Hale was exceedingly
and persistently cooperative with both Patrolman Miller and Osterholt. He did not
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repeatedly decline to consent, relenting only in the face of continued badgering on
the part of Patrolman Miller. Instead, Hale initially consented at a very early stage
of the investigation and never objected during any of the later occasions when
Patrolman Miller mentioned that he was consenting. In addition, and related to
Hale’s cooperativeness, the discourse between Hale and Patrolman Miller, and
between Hale and Osterholt, was at all times casual and cordial. See Fry, 2004-
Ohio-5747, at ¶ 25 (observing that “polite and courteous” conversations between a
law enforcement officer and the consenting party support a finding of
voluntariness). Moreover, Hale was aware that he had the ability to withhold his
consent and his statement that he wished he could contact his lawyer suggests that
he was not a “newcomer to the law.” And although there was no direct evidence of
Hale’s education and intelligence, Hale appeared to be lucid and engaged, asking
meaningful questions of Patrolman Miller relevant to understanding and protecting
his rights. Finally, while Hale believed that the blood and urine tests would likely
reveal the presence of “weed and Adderall” in his system, by representing that he
was “not guilty,” Hale evidently did not expect that the test results would be
incriminating.
{¶25} But notwithstanding these indicia of voluntariness, Hale argues that
his consent was not freely given because he was misled or coerced into consenting.
Hale points first to the hospital consent form he signed before his blood and urine
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were collected. Hale alleges that his consent was tainted by the form because the
form erroneously advised him that his driver’s license would be suspended if he
refused to consent and because it suggested that his bodily substances would be
taken involuntarily and, if necessary, by force if he refused. To support his
argument, Hale relies mainly on this court’s opinion in State v. Sweinhagen, 3d Dist.
Defiance No. 4-88-3, 1989 WL 138136 (Nov. 7, 1989), and on the opinion of the
Eleventh District Court of Appeals in State v. Brunty, 11th Dist. Ashtabula No.
2014-A-0007, 2014-Ohio-4307.
{¶26} In Sweinhagen, Sweinhagen was taken to a local hospital for treatment
after crashing his vehicle. Patrolman James Thill of the Ohio State Highway Patrol
(“OSHP”) proceeded to the hospital to secure statements from Sweinhagen and
other witnesses. Sweinhagen at *1. When questioned by Patrolman Thill,
Sweinhagen discussed his recollections of the accident and admitted
to having had two beers. Thill then asked Sweinhagen if he would
consent to a blood test. At the time, he was not in custody nor under
arrest in any way. Rather, he was resting on a treatment bed with his
wife standing at the bedside. Sweinhagen’s wife asked Thill what her
husband’s options were. Thill instructed them that his license could
be suspended for one year if the implied consent form was read to
him. Sweinhagen then consented to the withdrawl [sic] of his blood
for alcohol and drug testing.
Id. Sweinhagen moved to suppress the results of the blood test, which the trial
court denied, and subsequently pleaded no contest to driving while under the
influence of alcohol and failure to control. Id. In reversing the trial court’s denial
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of Sweinhagen’s suppression motion, we suggested that since Sweinhagen was not
under arrest at the time his consent was requested, Patrolman Thill did not have
grounds under the implied-consent statute to advise Sweinhagen that his license
could be suspended if he refused to consent.3 Id. at *2, quoting Fairfield v. Regner,
23 Ohio App.3d 79, 84 (12th Dist.1985), State v. Risner, 55 Ohio App.2d 77, 80
(3d Dist.1977) and State v. Szalai, 13 Ohio Misc.2d 6 (C.C.1983), paragraph three
of the syllabus. We concluded that “the giving of the consent in this case was not
voluntary” because “[a]lthough the implied consent form was not read * * * the
threat of license revocation was nevertheless introduced by the statements of the
trooper.” Id.{¶27} In Brunty, Brunty was involved in a collision that ultimately claimed
the life of one of the involved drivers. At the scene of the crash, OSHP Trooper
Daniel Jesse asked Brunty whether he would voluntarily provide a blood sample.
Brunty at ¶ 5. Brunty advised Trooper Jesse “that he would not, and he would not
3
Under R.C. 4511.191(A)(2), “[a]ny person who operates a vehicle * * * shall be deemed to have given
consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to
determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or
combination content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a
violation of [R.C. 4511.19(A) or (B)], [R.C. 4511.194] or a substantially equivalent municipal ordinance, or
a municipal OVI ordinance.” When a person is placed under arrest for one of the offenses listed in R.C.
4511.191(A)(2), they must generally be advised both orally and in writing of the following before they may
be requested to submit to chemical testing of their bodily substances: “If you refuse to take any chemical
test required by law, your Ohio driving privileges will be suspended immediately, and you will have to pay
a fee to have the privileges reinstated.” R.C. 4511.192(A) and (B). “[A] valid arrest supported by probable
cause to believe a defendant to have been operating a motor vehicle while under the influence * * * is a
condition precedent to obtaining a defendant’s consent to take a blood-alcohol test after reading the implied
consent form.” State v. Harris, 12th Dist. Warren No. CA2019-03-024, 2019-Ohio-4402, ¶ 14. “In the
absence of a valid arrest, consent obtained after a reading of the implied consent form is considered
involuntary * * *.” Id.-20-
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submit to any testing at all.” Id. Although Trooper Jesse had no suspicion that
Brunty was under the influence of drugs or alcohol, he then advised Brunty that his
blood sample would be obtained by force, if necessary. Id. at ¶ 5, 7 and 11. Brunty
“responded he did not wish to give a sample, but he would accompany the trooper
and submit to the test.” Id. at ¶ 5. Brunty was subsequently taken to a local hospital,
where his blood was withdrawn after he signed a hospital consent form. Id. The
trial court suppressed the blood test results, concluding that Brunty’s consent was
not voluntary. Id. at ¶ 8. In affirming the trial court’s grant of Brunty’s suppression
motion, the appellate court observed that because Trooper Jesse did not believe that
Brunty was under the influence of alcohol or drugs, the involuntary-withdrawal
provisions of the implied-consent statute did not apply.4 Id. at ¶ 11. The court
concluded that because the implied-consent statute did not apply, Trooper Jesse’s
advisement that Brunty’s refusal would result in an involuntary and potentially
forcible withdrawal of his blood had a coercive effect, thereby rendering Brunty’s
consent involuntary. Id. at ¶ 14, 17, 20 and 23.
4
In certain cases, law enforcement officers may obtain a sample of a person’s blood involuntarily. R.C.
4511.191(A)(5)(a). In such cases, when a law enforcement officer requests that the person submit to chemical
testing, the officer “shall advise the person at the time of the arrest that if the person refuses to take a chemical
test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a
chemical test of the person’s whole blood or blood serum or plasma.” Id. However, the availability of this
procedure is predicated on a valid arrest for one of the qualifying offenses listed in R.C. 4511.191(A)(5)(a).
Thus, R.C. 4511.191(A)(5)(a) can be invoked only where the law enforcement officer had an objectively
reasonable basis to conclude that the person was under the influence of alcohol or drugs at the time they
operated or physically controlled their vehicle. See Brunty, 2014-Ohio-4307, at ¶ 11, citing R.C.
4511.191(A)(3).
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{¶28} Here, as in Sweinhagen and Brunty, the implied-consent statute did not
apply. At the time his consent was requested and obtained, Hale was not under
arrest for operating his vehicle while under the influence of alcohol or drugs.
Therefore, Hale’s refusal could not have resulted in the suspension of his driver’s
license or the involuntary withdrawal of his blood. But the instant case is otherwise
distinguishable from Sweinhagen and Brunty. The defendants in Sweinhagen and
Brunty were specifically, albeit erroneously, admonished by law enforcement
officers regarding the consequences of their refusal to submit to chemical testing.
By contrast, Patrolman Miller made no such statements to Hale. The fact Hale
reviewed the hospital’s consent form with erroneous information is of no
consequence. Hale’s signature on this form was requested by hospital staff, not law
enforcement. Importantly, Patrolman Miller stated he was unaware of the content
of the consent form. Furthermore, Hale did not ask Patrolman Miller or Osterholt
any questions about the form and neither individual read the form to Hale or
reviewed it with him. Accordingly, we conclude that the hospital’s use of this form
did not impact the voluntariness of Hale’s consent.
{¶29} Hale further argues that his consent was involuntary because it was
premised on his understanding that if he refused to provide blood and urine samples,
“he would be detained * * * and a warrant would be obtained anyway.” (Appellant’s
Brief at 10). Consent is not necessarily the product of duress or coercion simply
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Case No. 10-22-01
because it follows a law enforcement officer’s statement regarding the prospects for
a search warrant should consent be refused. See State v. Marland, 3d Dist. Logan
No. 8-16-15, 2017-Ohio-4353, ¶ 27. Nor, as a corollary, is a party’s consent
automatically vitiated just because it was given in the wake of an officer’s statement
that, absent consent, the party would be detained pending the outcome of an
application to obtain a search warrant. However, “threats” to apply for or obtain a
search warrant, or to detain pending issuance of the warrant, are not invariably
uncoercive. To differentiate tolerable search-warrant/detention threats from those
that coerce consent, courts focus on the particular language employed by the law
enforcement officer and on what the officer knew or believed at the time the
consenting party was advised about the potential consequences of their refusal.
{¶30} “Courts have drawn distinctions where, on one hand, an officer merely
says that he will attempt to obtain a search warrant or whether, on the other hand,
he says he can obtain the search warrant, as if it were a foregone conclusion.”
United States v. Kaplan, 895 F.2d 618, 622 (9th Cir.1990). A threat to apply for or
to attempt to obtain a search warrant—at least where genuine and made with a good-
faith belief that a warrant could issue— “is in no sense a false or overstated claim
of authority * * * and might be said fairly to state the legal position of the person
from whom the consent is sought.” 4 Wayne R. LaFave, Search and Seizure,
Section 8.2(c) (6th Ed.). Such statements are not coercive because they accurately
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Case No. 10-22-01
“describe what will occur in the event of a refusal.” State v. Pitts, 186 Vt. 71, 88,
978 A.2d 14 (Vt.2009); see People v. Gurtenstein, 69 Cal.App.3d 441, 450
(Cal.App.1977) (statement that officer would apply for search warrant if consent
refused “cannot be considered coercive since the officer was merely telling the
defendant what he had a legal right to do”).
{¶31} However, a statement that a search warrant will be obtained if consent
is refused “may be an overstatement of authority ‘by suggesting that a search is
inevitable and that the withholding of consent will be futile.’” Pitts at 88-89,
quoting Commonwealth v. Mack, 568 Pa. 329, 796 A.2d 967, 973 (Pa.2002) (Saylor,
J., concurring); see Dotson v. Somers, 175 Conn. 614, 621, 402 A.2d 790(Conn.1978) (“[T]he intimation that a warrant will automatically issue is as
inherently coercive as the announcement of an invalid warrant.”). “It may generally
be said that a threat to obtain a search warrant is likely to be held to invalidate a
subsequent consent if there were not then grounds upon which a warrant could issue,
and likely not to affect the validity of the consent if the police then had probable
cause upon which a warrant could issue.” (Emphasis sic.) 4 LaFave at Section
8.2(c). With regard to the latter scenario, “[i]f in fact there were grounds for the
issuance of a search warrant, then the well founded advice of a law enforcement
agent that absent a consent to search a warrant can be obtained does not constitute
coercion.” State v. Dunwoody, 5th Dist. Licking No. 2004CA49, 2005-Ohio-219, ¶
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Case No. 10-22-01
19; see United States v. Faruolo, 506 F.2d 490, 494-495 (2d Cir.1974). “This
proposition rests upon the conclusion that the ‘threat’ does not involve any deceit
or trickery; but instead accurately informs the individual of his precise legal
situation.” State v. Berg, 2d Dist. Montgomery No. 15313, 1996 WL 562799, *3
(Oct. 4, 1996), citing Wayne R. LaFave, Search and Seizure (3d Ed.). But as the
Second District Court of Appeals has explained,
this requires the officer to be confident in his assessment that probable
cause exists to issue a search warrant. Even if the officer has a good
faith expectation that a warrant will issue, if he is wrong, he has
thereby misinformed the suspect of a key fact that he relied on in
giving his consent. For this reason, if an officer advises a suspect he
will obtain a search warrant if consent is not given, probable cause
must exist to obtain that warrant.
State v. Clark, 2d Dist. Montgomery No. 18314, 2000 WL 1643789, *7 (Nov. 3,
2000), citing Berg at *3; see 4 LaFave at Section 8.2(c). Hence, “[a]n officer’s
threat to obtain a warrant may invalidate the suspect’s eventual consent if the
officers lack the probable cause necessary for a search warrant.” Eidson v. Owens,
515 F.3d 1139, 1146 (10th Cir.2008).
{¶32} As for threats of detention, “[a] suspect’s consent to search may be
tainted by a threat of detention that essentially amounts to an arrest if consent is
refused.” Id. If consent follows upon a “threat that unreasonable detention,
amounting to arrest, would result if consent were denied,” the consent cannot be
considered voluntary even if the consenting party was ultimately not subjected to
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an unlawful arrest. United States v. Ocheltree, 622 F.2d 992, 994 (9th Cir.1980),
citing Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979). Conversely, if
law enforcement officers have sufficient grounds to lawfully seize the person and
they do not “misrepresent[] in some way the scope or extent of the[ir] authority * *
* preliminary to * * * issuance” of a search warrant, a detention threat will have a
negligible or null effect on the voluntariness of the consent. 4 LaFave at Section
8.2(c); see Eidson at 1146-1147 (where officer threatened to hold consenting party
“for as long as three days while a warrant was obtained” but had probable cause to
arrest, court “deem[ed] the coercion minimal”).
{¶33} In this case, as Hale was considering whether to reaffirm or repudiate
his earlier consent, he was instructed by Patrolman Miller that, if he withdrew his
consent, a search warrant would “for sure” be issued and he would not be permitted
to leave until the warrant was obtained and samples of his blood and urine were
collected. Patrolman Miller’s statements thus put Hale to a choice: he could consent
and go about his business after blood and urine samples were collected or he could
refuse and remain with Patrolman Miller until such time as the warrant was issued
and his blood and urine were obtained. Patrolman Miller’s statements “tend[ed] to
undermine any salutary effect that advice of the right to refuse consent might have
had” and made it appear as though the collection of Hale’s blood and urine was a
fait accompli. United States v. Maez, 872 F.2d 1444, 1456 (10th Cir.1989). Under
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Case No. 10-22-01
these circumstances—where Patrolman Miller unambiguously asserted that he was
going to obtain a search warrant and Hale was faced with the prospect of a detention
of indeterminate length—the voluntariness of Hale’s consent turns on whether
Patrolman Miller had probable cause to obtain a search warrant. See State v. Lovato,
478 P.3d 927, 933-934 (N.M.2020).
{¶34} “Probable cause ‘means less than evidence which would justify
condemnation,’ so that only the ‘probability, and not a prima facie showing of
criminal activity is the standard of probable cause.” State v. Gonzales, 3d Dist.
Seneca Nos. 13-13-31 and 13-13-32, 2014-Ohio-557, ¶ 18, quoting State v. George,
45 Ohio St.3d 325, 329 (1989). “The probable-cause standard is incapable of
precise definition or quantification into percentages because it deals with
probabilities and depends on the totality of the circumstances.” Maryland v.
Pringle, 540 U.S. 366, 370-371, 124 S.Ct. 795 (2003). Reduced to its simplest
expression, “probable cause exists when a reasonably prudent person would believe
that there is a fair probability that the place to be searched contains evidence of a
crime.” State v. Voorhis, 3d Dist. Logan No. 8-07-23, 2008-Ohio-3224, ¶ 79, citing
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). “To search for evidence of
a crime there must ‘be a nexus * * * between the item to be seized and criminal
behavior’ as well as ‘cause to believe that the evidence sought will aid in a particular
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Case No. 10-22-01
apprehension or conviction.’” Gonzales at ¶ 18, quoting Warden, Maryland
Penitentiary v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642 (1967).
{¶35} Although the trial court was never actually called upon to consider
issuing a warrant for Hale’s blood and urine, in connection with denying Hale’s
suppression motion, the trial court suggested that it would have. Specifically, the
trial court concluded that “[t]hough the officer did not have sufficient evidence to
establish probable cause to arrest [Hale] for impaired driving when he arrived at the
scene of the collision, during the course of his conversations with [Hale] both at the
scene and at the hospital, he developed probable cause to seek such a warrant to
order [Hale] to produce blood and urine samples.” (Doc. No. 62). We find no error
in the trial court’s conclusion.
{¶36} To begin, the fact that Hale caused a collision could be used as a
relevant factor suggesting impairment. See State v. Smith, 3d Dist. Defiance No. 4-
21-10, 2022-Ohio-4687, ¶ 35. Additionally, as the interaction between Patrolman
Miller and Hale progressed, Hale identified more and more substances that he had
ingested in the previous days. When it came to the Adderall, Hale did not indicate
when exactly he might have consumed it the previous evening or at what dosage.
Thus, it would have been difficult to even approximate how much of the Adderall
had been eliminated from Hale’s body in the intervening hours. Finally, Hale’s
inability to remember whether he had taken an Adderall, after professing to drinking
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Case No. 10-22-01
a relatively small quantity of alcoholic beverages, was curious and introduced
questions whether Hale was being entirely forthcoming or whether he had consumed
Adderall or other substances in such large quantities as to impair his memory. On
these facts, a reasonably prudent person could conclude that there was a fair chance
that analysis of Hale’s blood and urine would still reveal prohibited concentrations
of at least Adderall in Hale’s system or uncover other evidence supporting that he
had been driving while intoxicated.
{¶37} Because we conclude that Patrolman Miller had probable cause for a
search warrant, his statement to Hale that he would get a warrant if Hale refused
consent was neither coercive nor misleading. Likewise, Patrolman Miller’s
statement that Hale would not be allowed to leave was not coercive because, to
prevent Hale from absconding with the evanescent evidence believed to be in his
blood and urine, Patrolman Miller would have been permitted to detain Hale for a
reasonable period of time pending issuance of the search warrant. See Illinois v.
McArthur, 531 U.S. 326, 334, 121 S.Ct. 946 (2001) (“We have found no case in
which this Court has held unlawful a temporary seizure that was supported by
probable cause and was designed to prevent the loss of evidence while the police
diligently obtained a warrant in a reasonable period of time.”); United States v. Yett,
85 Fed.Appx. 471, 474 (6th Cir.2004) (concluding that a “seizure prior to the
warrant’s issuance [that] was calculated to prevent the loss of evidence and freeze
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Case No. 10-22-01
the status quo” was supported by probable cause and thus lawful). Finding no
coercion or deception in Patrolman Miller’s statements to Hale and considering the
rest of the factors suggesting that Hale’s consent was voluntary, we conclude that
competent, credible evidence supports the trial court’s finding that Hale freely and
voluntarily consented to provide blood and urine samples. As the trial court’s
voluntariness finding is not clearly erroneous, we conclude that the trial court did
not err by denying Hale’s suppression motion.
{¶38} Hale’s first assignment of error is overruled.
B. Second Assignment of Error: Does sufficient evidence support Hale’s
convictions for driving under suspension, and must his conviction for first-
degree felony aggravated vehicular homicide be vacated?
{¶39} In his second assignment of error, Hale argues that insufficient
evidence supports his convictions for driving under a 12-point suspension and for
driving under an FRA suspension. He further claims that his conviction for first-
degree felony aggravated vehicular homicide must be vacated because the
prerequisite for enhancing the offense to a first-degree felony—a showing that he
was driving under a suspended license at the time of the offense—is lacking.
i. Sufficiency of the Evidence Standard of Review
{¶40} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
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mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).
Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.” Id. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-
4775, ¶ 33.
ii. Insufficient evidence supports Hale’s conviction for driving under a 12-
point suspension, but his other convictions are supported by sufficient
evidence.
{¶41} The evidence at the September 30, 2021 bench trial established that
Hale was placed under a 12-point license suspension that ended on December 19,
2017. (Sept. 30, 2021 Tr. at 47-48); (State’s Trial Exhibit 3). In order to reinstate
his license upon completion of the suspension period, Hale was required to pay a
reinstatement fee, successfully complete a remedial driving course, pass an
examination administered under R.C. 4507.20, and give and maintain proof of
financial responsibility (e.g., an SR-22 certificate of financial responsibility) for
three years in accordance with R.C. 4509.45. (Sept. 30, 2021 Tr. at 49-50); (State’s
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Case No. 10-22-01
Trial Ex. 3). See R.C. 4510.038(A)(1)-(3); R.C. 4509.45(D). By March 21, 2018,
Hale had satisfied each of these requirements. (Sept. 30, 2021 Tr. at 49-50); (State’s
Trial Ex. 3). Although Hale’s license was reinstated, he remained under a
continuing obligation to maintain proof of financial responsibility until December
19, 2020. (Sept. 30, 2021 Tr. at 48-49); (State’s Trial Ex. 3).
{¶42} However, on August 13, 2020, the Ohio Bureau of Motor Vehicles
(“BMV”) received notice that Hale’s insurer had canceled his insurance. (Sept. 30,
2021 Tr. at 64); (State’s Trial Ex. 3). The cancellation was not processed and made
effective until 10 days later on August 23, 2020, at which time the BMV claimed
Hale’s “license went back under suspension.” (Sept. 30, 2021 Tr. at 65); (State’s
Trial Ex. 3). Diane Hayward, Assistant Chief with Field Services for BMV District
Four, testified that although the BMV “normally” sends a driver notice when their
license goes “back under suspension” for failing to maintain proof of financial
responsibility, she could find no record of any such notice being sent to Hale. (Sept.
30, 2021 Tr. at 65-66). She stated that the law does not require the BMV to issue
such notices but that the BMV typically does so as a courtesy. (Sept. 30, 2021 Tr.
at 66). Hayward testified that, as of September 27, 2020, Hale’s license was
suspended and that the suspension was an “FRA suspension, due to insurance
cancellation,” which was “also part of the 12 point.” (Sept. 30, 2021 Tr. at 67).
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Hayward agreed that Hale was “really under both, the 12 point and the FRA, and
they’re together.” (Sept. 30, 2021 Tr. at 43).
{¶43} Patrolman Miller testified that while speaking to Hale at the scene of
the crash, his dispatcher advised him that BMV records showed Hale’s license was
suspended. (Sept. 30, 2021 Tr. at 17). This moment was captured on Patrolman
Miller’s body-worn camera. In the recording, Hale overhears the dispatcher say that
his license is suspended, which prompts Hale to say, “That’s actually in the works,
that’s taken care of.” (State’s Trial Ex. 1). Patrolman Miller responds that it “was
not taken care of yet.” (State’s Trial Ex. 1). Hale replies that “they said it takes 72
hours to get back on there or whatever,” and he asks Patrolman Miller whether it
“still counts as suspended.” (State’s Trial Ex. 1). Patrolman Miller responds that it
did still count as suspended. (State’s Trial Ex. 1).
{¶44} On this evidence, Hale was convicted of driving under a 12-point
suspension and driving under an FRA suspension. These convictions were also used
to enhance his aggravated-vehicular-homicide conviction to a first-degree felony.
We address the sufficiency of the evidence supporting each of these convictions in
turn.
{¶45} Hale was convicted of driving under a 12-point suspension in violation
of R.C. 4510.037(J), which provides that “[a]ny person whose driver’s * * * license
* * * [is] suspended as a repeat traffic offender under [R.C. 4510.037] and who,
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during the suspension, operates any motor vehicle upon any public roads and
highways is guilty of driving under a twelve-point suspension * * *.” When Hale
received his 12-point suspension from the BMV in 2017, his license was required
to be suspended for a definite period of six months pursuant to R.C. 4510.037 and
R.C. 4510.02(B)(4). A six-month driver’s license suspension imposed under these
statutes is terminated by operation of law upon the completion of that six-month
period. State v. Roberts, 62 Ohio St.2d 94 (1980), syllabus.5 Compliance with the
reinstatement requirements of R.C. 4510.038(A)(1)-(3) is not the event that
terminates a 12-point suspension. See id. at 96. Here, as previously stated, Hale
completed his 12-point suspension on December 19, 2017. Thus, Hale’s 12-point
suspension terminated by operation of law on that date. Hale’s operation of his
vehicle after failing to maintain proof of insurance—a continuing condition for the
reinstatement of his driver’s license—might constitute an offense, but his failure to
maintain proof of insurance did not reanimate his 12-point suspension such that he
could be convicted of driving under a 12-point suspension. See id. at 94-96; State
v. Angelo, 5th Dist. Muskingum No. CT2018-0044, 2019-Ohio-422, ¶ 6 and 11-13;
State v. Gasser, 29 Ohio App.3d 115, 116-117 (9th Dist.1985). Accordingly, we
5
Although they have been recodified, reorganized, and amended since Roberts, the statutory provisions upon
which the conclusion in Roberts was premised still exist in substantially identical form. See R.C.
4510.037(B) and (I), 4510.02(B)(4), and 4510.038(A)(1)-(3).
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Case No. 10-22-01
conclude that Hale’s conviction for driving under a 12-point suspension is not
supported by sufficient evidence.
{¶46} Hale was also convicted of driving under an FRA suspension in
violation of R.C. 4510.16(A), which provides in relevant part that “[n]o person,
whose driver’s * * * license * * * has been suspended or canceled pursuant to
Chapter 4509. of the Revised Code, shall operate any motor vehicle within this state
* * * during the period of the suspension or cancellation, except as specifically
authorized by Chapter 4509. of the Revised Code.” From Hayward’s testimony and
the documentary evidence, it is somewhat unclear which section of R.C. Chapter
4509 the BMV purported to rely on as authority for suspending Hale’s license after
his insurance was canceled. Nevertheless, we note that under R.C. 4509.66,
“[w]henever any proof of financial responsibility filed under sections 4509.01 to
4509.78, inclusive, of the Revised Code, no longer fulfills the purposes for which
required, the registrar of motor vehicles shall require other proof and shall suspend
the license and registration or the nonresident’s operating privilege pending the
filing of such other proof.”
{¶47} It is undisputed that Hale’s insurance was canceled effective August
23, 2020. Thus, as of that date, Hale’s proof of financial responsibility “no longer
fulfill[ed] the purposes for which [it was] required,” and the BMV was empowered
to suspend Hale’s driver’s license for that reason. See Glinsek v. Ohio Bur. of Motor
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Vehicles, 9th Dist. Summit No. 13657, 1988 WL 139604, *1-2 (Dec. 28, 1988)
(concluding that the BMV did not err by suspending driver’s license under R.C.
4509.66 where the BMV required proof of financial responsibility after an accident
and “BMV deemed that the unsigned declaration page of [the] insurance policy
[was] inadequate proof of coverage”); Brisker v. Ibrahim, 29 Ohio App.3d 16, 17
(8th Dist.1985), fn. 2 (suggesting that the BMV could have suspended a driver’s
license under R.C. 4509.66 after driver, whose license had been reinstated following
a suspension for his “unsafe driving record,” had his insurance policy canceled). As
Hale had not satisfactorily remedied his insurance lapse by September 27, 2020, this
suspension remained in effect. Furthermore, construing Hale’s crash-scene
statements to Patrolman Miller in a light most favorable to the State, there is
sufficient evidence that Hale was aware that his license had been suspended and that
he needed to obtain new insurance. Consequently, we conclude that Hale’s
conviction for driving under FRA suspension in violation of R.C. 4510.16(A) is
supported by sufficient evidence. And as sufficient evidence supports Hale’s
conviction for driving under an FRA suspension, there is necessarily sufficient
evidentiary support for enhancing Hale’s aggravated vehicular homicide offense to
a first-degree felony.
{¶48} Hale’s second assignment of error is sustained in part and overruled in
part.
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IV. Conclusion
{¶49} Having found error prejudicial to Hale with respect to his conviction
for driving under a 12-point suspension, we reverse the judgment of the Mercer
County Court of Common Pleas with respect to that conviction and remand for
further proceedings consistent with this opinion. In all other respects, we affirm.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
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