Ohio’s First Post-McNeeley Blood Draw Case
In State v. Hollis, 2013-Ohio-2586, the Fifth Appellate District was faced with an appeal of a decision from the Richland County Common Pleas Court. The case was the first forced blood draw decision following the United States Supreme Court ruling in Missouri v. McNeeley, which held “that in drunk-driving inves- tigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. The decision of the court used the previous rules for exigent circumstances as set forth in Schmerber v. California and does not address or rely upon the McNeeley ruling. Instead, the court (relying on Schmerber) finds that exigent circumstances existed justifying the blood draw. Defendant was constructively arrested at the hospital after wrecking his car and likely being under the influence. The blood draw at the hospital was reasonable and with exigent circumstances. The court credits that it would have taken “hours” to get a warrant.
Below is a brief of the issues relevant in the case, a full copy of which is linked HERE.
FACTS OF THE CASE: This case arose on September 12, 2010, a few minutes after midnight, when troopers of the Mansfield post of the Ohio State Highway Patrol were dispatched to a fatal traffic crash at the intersection of Reed Road and Route 30. Upon investigation, troopers discovered appellant had driven the pickup truck from Reed Road onto Route 30 at a high rate of speed, failed to negotiate a curve, lost control, left the roadway, overcorrected, and overturned the vehicle. Troopers on the scene of the crash observed alcoholic beverage containers in and around the vehicle and the roadway, and detected an odor of an alcoholic beverage permeating the entire scene. The victims had already been transported by EMS, although appellant was briefly still present and spoke with a trooper who described him as “emotionally shooken up (sic).” Appellant was soon transported to MedCentral Hospital in Mansfield for treatment.
Trooper Aaron Doerfler made contact with appellant in the MedCentral emergency room. Appellant was laying on a hospital bed covered with a blanket, and the trooper did not note any apparent visible injuries. He noticed the odor of alcohol about appellant’s person and intended to read him the BMV 2255 form. Doerfler was unable to read the form, however, because appellant would not respond to his questions. Doerfler described appellant crying and wailing, conscious but unresponsive to Doerfler’s questions and statements. Doerfler said he spent several minutes attempting to communicate with appellant, who said nothing or cried and “toss[ed] his head back and forth.” Doerfler filled out the BMV 2255 but noted appellant was unable to sign because he was unresponsive. Doerfler testified that if appellant had been responsive, he would have read the 2255 form to him and asked him to submit to a blood test.
Appellant was charged by indictment with one count of aggravated vehicular homicide pursuant to R.C. 2903.06(A)(1)(a), a felony of the second degree; one count of aggravated vehicular homicide pursuant to R.C. 2903.06(A)(2), a felony of the third degree; two counts of aggravated vehicular assault pursuant to R.C. 2903.08(A)(1)(a), felonies of the third degree; two counts of aggravated vehicular assault pursuant to R.C. 2903.08(A)(2)(b), felonies of the fourth degree; one count of O.V.I. pursuant to R.C. 4511.19(A)(1)(f), a misdemeanor of the first degree; one count of O.V.I pursuant to R.C. 4511.19(A)(1)(c), a misdemeanor of the first degree; and one count of O.V.I pursuant to R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree.
ARREST AND CONSTRUCTIVE ARREST Appellant argues that the “implied consent to testing” provisions of R.C. 4511.191 are not applicable because he was not arrested. In State v. Whitt, we reiterated the principle that an arrest occurs when four elements are present: (1) an intent to arrest, (2) under real or pretended authority, (3) accompanied by actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested. 5th Dist. No. 10-CA-3, 2010-Ohio-3761at ¶ 14, citing State v. Darrah, 64 Ohio St.2d 22, 412 N.E.2d 1328 (1980).1 We also referenced our decision in State v. Kirschner, 5th Dist. No.2001 CA00107, 2001-Ohio-1915, for the proposition that “ ‘a valid arrest must precede the seizure of a bodily substance, including a blood draw, and must precede an implied consent given based upon Form 2255.’“ Id. at ¶ 18, quoting State v. Rice, 129 Ohio App.3d 91, 98, 717 N.E.2d 351 (1998).
We have also recognized, however, the reality of constructive arrest, particularly in cases such as the one sub judice in which the subject of the drunken driving investigation is hospitalized or undergoing treatment and arrest per se is not feasible. That doesn’t mean the investigation stops. In the instant case, the trial court applied the rationale of our decision in State v. Groves, which we also find to be applicable. 5th Dist. No. 10CA18, 2010-Ohio-5089. In that case, the driver was hospitalized when he was questioned by the officer and read the BMV 2255; the driver was never taken into “custody” as such because he was undergoing medical treatment and there was no time for a citation to be issued. Nevertheless, we found as follows:
Despite this court’s holding in State v. Kirschner, [5th Dist.] No.2001CA00107, 2001-Ohio-1915, the administrative regulations in the case sub judice were fulfilled. Appellant was told he was under arrest. A citation would have been issued at the hospital but for appellant’s medical emergency. To disallow the results of the blood draw because of the intervening urgent circumstances would place form over substance. The purpose of the mandatory language of the implied consent law is to inform the suspect of his various rights under 4511.191 and the administrative license provisions for non-consent. The language contained in the BMV 2250 form was sufficient to establish an “arrest.”
State v. Groves, 5th Dist. No. 10CA18, 2010-Ohio-5089,
EXIGENT CIRCUMSTANCES: Appellant next argues appellee did not prove exigent circumstances existed which would permit his blood to be drawn absent a search warrant. We note that if there are exigent circumstances and “an officer has probable cause to arrest a driver for DUI, the result of an analysis of a blood sample taken over the driver’s objection and without consent is admissible in evidence, even if no warrant had been obtained.” State v. Hoover, 123 Ohio St.3d 418, 2009–Ohio–4993, 916 N.E.2d 1056, ¶ 19, citing Schmerber v. California, 384 U.S. 757, 770–771, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The issues are whether exigent circumstances existed along with probable cause to arrest appellant for OVI prior to the evidentiary blood draw, and whether a reasonable procedure was used to extract the blood. Schmerber at 770– 772; State v. Capehart, 12th Dist. No. CA2010–12–035, 2011–Ohio–2602, ¶ 10. If all of these elements are present, then appellant’s consent was unnecessary for the blood draw results to be admissible. State v. Carr, 11th Dist. No. 2012-L-001, 2013- Ohio-737, ¶ 43.
Finally, the Schmerber court also required that, provided exigent circumstances and probable cause exist, the blood must also be drawn in a reasonable manner. Here, the blood was drawn by a nurse who used gloves, used the non-alcoholic iodine swab in the trooper’s kit to clean the area, used a sterile needle from stock, and collected the sample into a grey-topped vacuum tube in the kit containing preservative and anticoagulant materials. No evidence exists this was not done using the typical, reasonable procedures used for extracting blood and, therefore, this element of Schmerber was met. See State v. Capehart, 12th Dist. No. CA2010-12-035, 2011–Ohio–2602, at ¶ 13 (“because the blood sample was drawn by trained medical personnel using medically acceptable procedures, it is clear that the method used to extract the evidence was reasonable and performed in a reasonable manner”).
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