[Cite as State v. Blair, 2013-Ohio-646.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-12-14
v.
MEAGAN BLAIR, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion Municipal Court Trial Court No. TRC 1106722
Judgment Affirmed
Date of Decision: February 25, 2013
APPEARANCES:
J.C. Ratliff and Jeff Ratliff for Appellant
Steven E. Chaffin for Appellee Case No. 9-12-14
SHAW, J.
{¶1} Defendant-appellant, Meagan Blair (“Blair”), appeals the March 8,
2012 judgment of the Marion Municipal Court journalizing her conviction by a
jury for operation of a vehicle while under the influence (“OVI”), in violation of
R.C. 4511.19(A)(1)(a), and operation of a vehicle with a prohibited alcohol
concentration in violation of R.C. 4511.19(A)(1)(d), and suspending her driver’s
license for one year.
{¶2} On September 5, 2011, at approximately 2:30 a.m., Trooper Tawanna
Young was on patrol when she observed the 2004 Honda driven by Blair and
noticed that the rear license plate light on the vehicle was not illuminated.
Trooper Young followed Blair and signaled for her to pull over her vehicle. Blair
was travelling with a friend in the passenger seat.
{¶3} Trooper Young approached Blair, informed her of the reason for the
stop, and asked Blair for her driver’s license, registration, and proof of insurance.
Trooper Young asked Blair to exit the vehicle and directed her to the back of the
car so that she could show Blair that her license plate light was inoperable. Blair’s
car was already turned off, so Trooper Young requested Blair start her car. Blair
indicated that the passenger had the keys, however the passenger was unable to
locate the keys to start the car.
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{¶4} Trooper Young asked Blair to sit in her cruiser while she checked
Blair’s driving record. Blair complied with the request, was patted down, and then
sat in the front seat of the cruiser. At this time, Blair explained to Trooper Young
that she had been asleep for almost two hours when she received a phone call from
the passenger at 2:00 a.m. requesting Blair pick her up from a bar in Marion.
During this conversation, Trooper Young observed a strong odor of alcoholic
beverage emanating from Blair’s breath. Trooper Young asked Blair if she had
anything to drink that night. Blair admitted to consuming two drinks between 10
p.m. and midnight.
{¶5} Trooper Young then proceeded to conduct a Horizontal Gaze
Nystagmus test (“HGN”) on Blair and observed six out of six clues indicating
Blair to be impaired. Next, Trooper Young had Blair recite the alphabet starting at
the letter “D” and ending at the letter “W.” Blair was unable to complete this task
due to skipping the letters between “P” and “W.” Trooper Young then conducted
additional field sobriety tests. Specifically, Trooper Young asked Blair to
complete the walk-and-turn test and observed two out of eight clues indicating
impairment. Trooper Young also had Blair complete the one-leg-stand test, which
Blair completed correctly with no clues of impairment. Based on the strong odor
of alcoholic beverage emanating from Blair’s breath, her admission to consuming
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two alcoholic beverages, and her performance on the field sobriety tests, Trooper
Young determined Blair to be impaired and placed her under arrest for OVI.
{¶6} After being transported to the Multi-County Jail, Blair agreed to
submit to a chemical test measuring the concentration of alcohol in her breath.
Trooper Young read Blair the BMV form 2255 and administered the test. The
first test indicated that an invalid sample was obtained and failed to produce a
reading. Sergeant Hunter, Trooper Young’s supervisor who was also present at
the jail, administered the second test to Blair at Trooper Young’s request, after the
requisite twenty-minute observation period. This time a valid sample was
obtained and the test produced a result of .106 of one gram by weight of alcohol
per two hundred ten liters of breath, indicating that the concentration of alcohol
detected in Blair’s breath exceeded the legal limit.
{¶7} Blair was charged with OVI, in violation of R.C. 4511.19(A)(1)(a),
operation of a vehicle with a prohibited alcohol concentration, in violation of R.C.
4511.19(A)(1)(d), failure to wear a seat belt, in violation of R.C. 4513.263(B)(1),
and failure to illuminate the rear license plate, in violation of R.C. 4513.05. Blair
entered a plea of not guilty to the charges.
{¶8} On October 14, 2011, Blair filed a motion to suppress alleging that
Trooper Young lacked probable cause and/or reasonable, articulable suspicion to
stop her for a license plate light violation, that Trooper Young did not acquire
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probable cause and/or reasonable, articulable suspicion to further detain her to
administer the field sobriety tests, and that Trooper Young lacked probable cause
to subsequently arrest her for OVI. Blair also claimed that the field sobriety tests
were not conducted in accordance with NHTSA standards, and challenged the
results of the breathalyzer, alleging the test was not administered in accordance
with the Ohio Department of Health Rules and Regulations.
{¶9} On December 22, 2011, a hearing was held on Blair’s motion to
suppress. The video of the stop was introduced as evidence as well as the
testimony of Trooper Young, Sergeant Hunter, and Blair. On December 23, 2011,
the trial court issued a judgment entry overruling the motion. The jury trial was
set for March 7, 2012.
{¶10} On March 6, 2012, the day before trial, Blair filed a subpoena duces
tecum requesting Trooper Young produce for use at trial copies of her call log and
copies of her computer log from the date of Blair’s arrest. Blair also filed a
subpoena duces tecum requesting the Keeper of Records and/or Office Manager at
Ralls Automotive to produce for the use at trial the invoice reflecting service
performed on Blair’s car the day after her arrest. The prosecution subsequently
filed a motion to quash. The same day, the trial court granted the prosecution’s
motion finding compliance with the subpoenas to be unreasonable and oppressive.
See Crim.R. 17(C).
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{¶11} The next day, the jury trial commenced as scheduled and the jury
heard evidence pertaining to two counts: OVI and operating a vehicle with a
prohibited alcohol concentration. Trooper Young and Sergeant Hunter testified
for the prosecution and Blair testified in her defense. The video of the stop was
also admitted for the jury to review. The jury found Blair guilty on both counts
before it and the prosecution elected for Blair to be sentenced on the OVI
conviction. The prosecution subsequently dismissed the seat belt violation. The
trial court found Blair not guilty of the rear license plate light violation.
{¶12} On March 8, 2012, the trial court sentenced Blair to ninety days in
jail with eighty-four days suspended and imposed a fine of $1,000 with $100
suspended. The trial court also suspended Blair’s driver’s license for one year
beginning on March 8, 2012 and expiring March 8, 2013.
{¶13} Blair now appeals, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SUPPRESS AS (1) THE STOP WAS NOT SUPPORTED BY PROBABLE CAUSE OR A REASONABLE AND ARTICULABLE SUSPICION THE DEFENDANT HAD COMMITTED A TRAFFIC VIOLATION; (2) THE OFFICER DID NOT POSSESS A REASONABLE AND ARTICULABLE SUSPICION JUSTIFYING THE CONTINUED DETENTION OF THE DEFENDANT BEYOND THE SCOPE OF THE INITIAL STOP; (3) THE OFFICER DID NOT POSSESS A REASONABLE AND ARTICULABLE SUSPICION JUSTIFYING THE ADMINISTRATION OF THE FIELD SOBRIETY TESTS; (4) THE FIELD SOBRIETY TESTS AND
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CHEMICAL TESTS WERE NOT DONE IN SUBSTANTIAL COMPLIANCE WITH NHTSA OR ITS EQUIVALENT AND THE OHIO DEPARTMENT OF HEALTH RULES AND REGULATIONS; AND (5) THE OFFICER DID NOT POSSESS PROBABLE CAUSE TO ARREST THE DEFENDANT.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT VIOLATED THE DEFENDANT’S CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AND EVIDENCE AGAINST HER, HER RIGHT TO COMPULSORY PROCESS, HER RIGHT TO PRESENT A MEANINGFUL DEFENSE, HER RIGHT TO DUE PROCESS OF LAW, AND HER RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT VIOLATED DEFENDANT’S RIGHT AGAINST DOUBLE JEOPARDY WHEN THE TRIAL COURT SUSPENDED HER OPERATOR’S LICENSE FOR ONE (1) YEAR WITHOUT CREDITING DEFENDANT FOR THE ALS SUSPENSION [SIC] IMPOSED ON HER AT THE TIME OF HER ARREST.
First Assignment of Error
{¶14} In her first assignment of error, Blair argues that the trial court erred
in overruling her motion to suppress. Blair asserts five specific grounds to support
her contention.
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{¶15} Initially, we note that appellate review of a decision on a motion to
suppress evidence presents a mixed question of law and fact. State v. Bressler, 3d
Dist. No. 15–05–13, 2006–Ohio–611. At a suppression hearing, the trial court
assumes the role of trier of fact and is in the best position to resolve factual
questions and evaluate the credibility of witnesses. State v. Carter, 72 Ohio St.3d
545, 552 (1995). When reviewing a trial court’s decision on a motion to suppress,
an appellate court must uphold the trial court’s findings of fact if they are
supported by competent, credible evidence. State v. Dunlap, 73 Ohio St.3d 308,
314 (1995). We must defer to “the trial court’s findings of fact and rely on its
ability to evaluate the credibility of the witnesses,” and then independently review
whether the trial court applied the correct legal standard. State v. Anderson, 100
Ohio App.3d 688, 691 (4th Dist. 1995).
{¶16} At a suppression hearing, the State bears the burden of establishing
that a warrantless search and seizure falls within one of the exceptions to the
warrant requirement, Xenia v. Wallace, 37 Ohio St.3d 216 (1988), paragraph two
of the syllabus; State v. Kessler, 53 Ohio St.2d 204, 207 (1978), and that it meets
Fourth Amendment standards of reasonableness. Maumee v. Weisner, 87 Ohio
St.3d 295, 297 (1999).
{¶17} Blair first contends that the trial court erred in denying her motion to
suppress because Trooper Young lacked probable cause and/or reasonable,
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articulable suspicion justifying the stop of her vehicle. At the suppression hearing,
Trooper Young testified that she effectuated the traffic stop because the rear
license plate area of Blair’s vehicle was not illuminated, which is a traffic
violation.
{¶18} The Supreme Court of Ohio has held that “[w]here a police officer
stops a vehicle based on probable cause that a traffic violation has occurred or was
occurring, the stop is not unreasonable under the Fourth Amendment to the United
States Constitution even if the officer had some ulterior motive for making the
stop * * *.” City of Dayton v. Erickson, 76 Ohio St.3d 3, syllabus (1996),
following United States v. Ferguson, 8 F.3d 385 (6th Cir.1993).
{¶19} Trooper Young charged Blair with a traffic violation, in violation of
R.C. 4513.05, which specifically provides as follows:
(A) Every motor vehicle, trackless trolley, trailer, semitrailer, pole trailer, or vehicle which is being drawn at the end of a train of vehicles shall be equipped with at least one tail light mounted on the rear which, when lighted, shall emit a red light visible from a distance of five hundred feet to the rear, provided that in the case of a train of vehicles only the tail light on the rearmost vehicle need be visible from the distance specified.
Either a tail light or a separate light shall be so constructed and placed as to illuminate with a white light the rear registration plate, when such registration plate is required, and render it legible from a distance of fifty feet to the rear. Any tail light, together with any separate light for illuminating the rear registration plate, shall be so wired as to be lighted whenever the headlights or auxiliary driving lights are lighted, except where
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separate lighting systems are provided for trailers for the purpose of illuminating such registration plate.
(B) Whoever violates this section is guilty of a minor misdemeanor.
{¶20} On appeal, Blair contends that the video recorded by the dashboard
camera in Trooper Young’s cruiser demonstrates that Blair’s rear license plate was
“visibly illuminated” and therefore did not give Trooper Young a basis to make
the stop. (Blair’s Brief at 8). This video evidence was played during the
suppression hearing and was admitted as evidence for the trial court’s review. Our
review of this evidence reveals that it is not discernible from the video whether or
not Blair’s license plate was “visibly illuminated” prior to Trooper Young
effectuating the stop. Therefore, the video does not unequivocally demonstrate
that Blair’s rear license plate was illuminated in compliance with R.C. 4513.05 as
Blair contends.
{¶21} On the contrary, at the suppression hearing, Trooper Young testified
that she was approximately a block away from Blair’s vehicle when she first
observed that Blair’s rear license plate was not illuminated and then made the
decision to follow Blair. Trooper Young further explained that she had a clear and
unobstructed view of Blair’s vehicle and had “no doubt” in her mind that the light
was out. (Supp. Hrg. at 32). Trooper Young testified that she specifically
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conducted the traffic stop based on her observation that the rear license plate of
Blair’s vehicle was not illuminated.
{¶22} Based on the evidence presented at the suppression hearing, we find
that the factual determination by the trial court that Blair’s rear license plate was
not illuminated prior to the stop was supported by competent, credible evidence.
Accordingly, we find no error with the determination by the trial court that
Trooper Young possessed both probable cause and/or reasonable, articulable
suspicion to stop Blair on the basis that a traffic violation had occurred.
{¶23} Next, in her second and third grounds for contending the trial court
erred in overruling her motion to suppress, Blair argues that her continued
detention exceeded the scope and duration of the stop, and that Trooper Young did
not have reasonable, articulable suspicion to conduct the field sobriety tests. The
prosecution contends that Trooper Young had reasonable, articulable suspicion
that Blair was engaged in criminal activity—i.e., OVI—that would justify her
continued detention and the administration of the field sobriety tests.
{¶24} When conducting a stop of a motor vehicle for a traffic violation, an
“officer may detain an automobile for a time sufficient to investigate the
reasonable, articulable suspicion for which the vehicle was initially stopped.”
State v. Smith, 117 Ohio App.3d 278, 285 (1st Dist. 1996). However, the duration
of the stop “is limited to ‘effectuate the purpose for which the initial stop was
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made.’ ” Id., quoting State v. Venham, 96 Ohio App.3d 649, 655 (4th Dist. 1994),
citing United States v. Brignoni–Ponce, 422 U.S. 873, 95 (1975); State v. Chatton,
11 Ohio St.3d 59, 63 (1994). “Thus, when detaining a motorist for a traffic
violation, an officer may delay the motorist for a time period sufficient to issue a
ticket or a warning.” Smith at 285, citing State v. Keathley, 55 Ohio App.3d 130
(2d Dist. 1998). This time period also includes the period of time sufficient to run
a computer check on the driver’s license, registration, and vehicle plates. See
Delaware v. Prouse, 440 U.S. 648, 659 (1979).
{¶25} The detention of a stopped driver may continue beyond the time
frame necessary to conduct the stop for purposes of the traffic violation when
“additional facts are encountered that give rise to a reasonable, articulable
suspicion [of criminal activity] beyond that which prompted the initial stop[.]”
Smith at 285, citing State v. Myers, 63 Ohio App.3d 765, 771 (2d Dist. 1990);
Venham at 655. Reasonable articulable suspicion exists when there are “ ‘specific
and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant the intrusion.’ ” State v. Stephenson, 3d Dist. No. 14-04-
08, 2004-Ohio-5102, ¶ 16, quoting State v. Bobo, 37 Ohio St.3d 177, 178 (1988).
{¶26} At the suppression hearing, Trooper Young testified that when she
initially approached Blair’s vehicle, she detected an odor of alcoholic beverage but
could not pinpoint whether the odor was coming from Blair or the passenger.
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After Blair was unable to find her keys to turn on the vehicle, Trooper Young
asked Blair to sit in the front seat of her cruiser while she ran a computer check of
Blair’s driving record. Trooper Young explained that she asked Blair to sit in the
cruiser so that she could ascertain whether the odor of alcoholic beverage she
initially smelled was coming from Blair or the passenger. Trooper Young testified
that Blair willingly complied with the request and was not under arrest at this
point. The video of the stop corroborates Trooper Young’s testimony in this
regard. Moreover, Trooper Young testified that Blair would not have had to sit in
the cruiser if she objected. 1
{¶27} Trooper Young testified that while she was running a check of
Blair’s driving record in the cruiser, she detected a strong odor of alcoholic
beverage on Blair’s breath. See State v. Marshall, 2d Dist. No. 2001CA35, 2001-
Ohio-7081 (holding that a strong odor of alcohol alone is sufficient to provide an
officer with reasonable suspicion of criminal behavior). Trooper Young testified
that the strong odor of alcoholic beverage coupled with Blair’s admission to
consuming alcohol earlier that night led her to make the decision to administer the
1 On appeal, Blair cites State v. Lozada, 92 Ohio St.3d 74, 2011-Ohio-149 to claim that Trooper Young’s pat down of her for weapons prior to sitting in the cruiser violated her Fourth Amendment rights. In Lozada, the Supreme Court held that “that during a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer.” However, in this case, Trooper Young testified that one of the reasons she asked Blair to sit in the cruiser was to discern whether the odor of alcoholic beverage she smelled at the inception of the stop came from Blair or the passenger. Thus, Trooper Young’s detention of Blair in her cruiser was not solely for officer convenience as in Lozada. Moreover, Blair failed to raise this issue regarding the pat down at the motion to suppress hearing, so even assuming arguendo that the pat down was improper the issue is now waived.
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HGN test on Blair. After Blair’s performance of the HGN test indicated six out of
six clues of impairment, Trooper Young proceeded to administer the additional
field sobriety tests of the walk-and-turn and one-leg-stand tests.
{¶28} The trial court noted on the record that the following facts
contributed to its decision to find that Trooper Young had acquired the requisite
reasonable, articulable suspicion to prolong the initial stop for a traffic violation in
order to further detain Blair for investigatory purposes to administer the field
sobriety tests.
There was reasonable articulable suspicion to detain and further investigate based on the odor coming from the car. Then there was an odor noted when the driver was separated from the car and its passenger. Thereafter there was an admission of alcohol use. Also included in the totality of the circumstances was the loss of the keys and the inability to turn the car on to look at the license plate. This also includes the time of day.
(Hrg. Dec. 22, 2012 at 138-39).
{¶29} Based on evidence in the record, we conclude that Trooper Young
encountered additional facts to give rise to a reasonable, articulable suspicion of
criminal activity beyond that which prompted the initial stop. We further
conclude that Trooper Young’s reasonable, articulable suspicion that Blair was
driving while impaired justified the prolonged detention to administer the field
sobriety tests. Accordingly, we find no error with the trial court’s decision to
overrule Blair’s motion to suppress on this basis.
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{¶30} As the final two grounds for contending that the trial court erred in
overruling her motion to suppress, Blair argues that the field sobriety tests and the
chemical breath test were not administered in substantial compliance with the
applicable guidelines, and therefore the results from these tests should have been
suppressed. Blair further contends that without the field sobriety test results
Trooper Young did not possess probable cause to arrest her.
{¶31} In order for the results of field sobriety tests to be admissible, the
state is not required to show strict compliance with testing standards, but must
instead demonstrate that the officer substantially complied with NHTSA
standards. R.C. 4511.19(D)(4)(b); State v. Clark, 12th Dist. No. CA2009-10-039,
2010-Ohio-4567, ¶ 11. “A determination of whether the facts satisfy the
substantial compliance standard is made on a case-by-case basis.” State v. Fink,
12th Dist. Nos. CA2008-10-118, CA2008-10-119, 2009-Ohio-3538, ¶ 26. The
state may demonstrate what the NHTSA standards are through competent
testimony and/or by introducing the applicable portions of the NHTSA manual.
State v. Boczar, 113 Ohio St.3d, 2007-Ohio-1251, at ¶ 28.
{¶32} At the suppression hearing and on appeal, Blair does not identify any
specific error with Trooper Young’s administration of the field sobriety tests, in
light of NHTSA or other applicable guidelines, but nevertheless argues
suppression of the test results is warranted. However, Trooper Young’s testimony
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indicates that she performed the field sobriety tests in accordance with the
appropriate standards. In particular, Trooper Young testified that she received
NHTSA and ADAP training and testified to her training regarding the method of
administration and the clues she must observe while conducting the tests.
{¶33} Even assuming arguendo that we find that Trooper Young did not
substantially comply with NHTSA or other applicable standards—which would
require the results of the tests to be excluded—her testimony regarding the Blair’s
performance on nonscientific field sobriety tests is admissible under Evid.R. 701
and can support a finding of probable cause to arrest under the totality of the
circumstances analysis. See State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶
14-15. Notwithstanding this fact, we find no error in the trial court’s conclusion
that the prosecution met its burden in demonstrating that Trooper Young’s
administration of the field sobriety tests substantially complied with NHTSA
standards. Furthermore, we also conclude that the trial court did not err in
determining that Trooper Young acquired the requisite probable cause to arrest
Blair for OVI.
{¶34} Next, Blair challenges the admissibility of the results from the breath
analysis test and asserts that the prosecution failed to demonstrate the test was
conducted in substantial compliance with the regulations prescribed by the
Director of the Ohio Department of Health.
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{¶35} In seeking to suppress the results of a breath analysis test, the
defendant must set forth an adequate basis for the motion. State v. Shindler, 70
Ohio St.3d 54, 58, 1994-Ohio-452. The motion must state the “ * * * legal and
factual bases with sufficient particularity to place the prosecutor and court on
notice as to the issues contested.” Id; Crim.R. 47. Once an adequate basis for the
motion has been established, the prosecution then bears the burden of proof to
demonstrate substantial compliance with the Ohio Department of Health
regulations. Xenia v. Wallace, 37 Ohio St.3d 216, 220 (1988). If the prosecution
demonstrates substantial compliance, the burden of proof then shifts to the
defendant to overcome the presumption of admissibility and demonstrate that he
or she was prejudiced by anything less than strict compliance. State v. Burnside,
100 Ohio St.3d at 157.
{¶36} The extent of the prosecution’s burden to show substantial
compliance varies with the degree of specificity of the violation alleged by the
defendant. “When a defendant’s motion to suppress raises only general claims,
along with the Ohio Administrative Code sections, the burden imposed on the
state is fairly slight.” State v. Johnson, 137 Ohio App.3d 847, 851 (2000).
Specifically, when a motion fails to allege a fact-specific way in which a violation
has occurred, the state need only offer basic testimony evidencing compliance
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with the code section. State v. Bissaillon, 2d Dist. No. 06–CA–130, 2007-Ohio-
2349, ¶ 15.
{¶37} Here, Blair’s motion to suppress asserted only general claims, along
with the Ohio Administrative Code sections, and failed to allege a fact-specific
basis that a violation had occurred. Therefore, the prosecution’s burden to
demonstrate substantial compliance with the Ohio Department of Health
regulations was “fairly slight.”
{¶38} Sergeant Hunter of the Ohio State Highway Patrol testified during
the suppression hearing on the issue of substantial compliance. Specifically, he
testified that he is certified as a senior operator of the BAC DataMaster and that he
is qualified to perform calibration checks of the DataMaster. The prosecution
admitted into evidence Sergeant Hunter’s certificate from the Ohio Board of
Health which demonstrated that he was certified to operate the DataMaster on the
date of Blair’s test. The prosecution also presented evidence, including the
instrument check forms, which demonstrated that an instrument check of the
machine used to test Blair was performed on September 4, 2011, the day before
Blair’s test, and that another check was performed on September 11, 2011.
Sergeant Hunter testified that both instrument checks were performed by qualified
senior operators and that the forms indicated that the machine was functioning
properly and that all the Ohio Department of Health regulations were met.
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{¶39} Sergeant Hunter also testified regarding his administration of the
breath test to Blair. Specifically, he testified that he waited until the twenty-
minute observation period was complete. He testified that he followed the
appropriate procedure for running the machine, and explained to Blair how to
blow into the machine and that he would tell her when to stop. Sergeant Hunter
testified that he obtained a sufficient sample from Blair and that the test result
indicated Blair’s breath contained a concentration of alcohol of .106.
{¶40} On appeal, Blair now attempts to make arguments regarding the issue
of substantial compliance that she failed to articulate at the suppression hearing.
In addition, the record demonstrates that Blair failed to present any evidence
rebutting the prosecution’s showing that Sergeant Hunter administered the test in
substantial compliance with the regulations prescribed by the Director of the
Department of Health, let alone demonstrating that she was prejudiced by anything
less than strict compliance. Accordingly, we find no error in the trial court’s
conclusion that the prosecution met its burden in showing that Blair’s breath test
was administered in substantial compliance with the Ohio Department of Health
regulations.
{¶41} For all the foregoing reasons, we conclude that the trial court did not
err in overruling Blair’s motion to suppress. Therefore, Blair’s first assignment of
error is overruled.
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Second Assignment of Error
{¶42} In her second assignment of error, Blair argues that the trial court
violated her constitutional right of confrontation, right to compulsory process,
right to present a meaningful defense, right to due process, and right to a fair trial.
Blair’s contentions under this assignment of error can be distilled into three main
points.
{¶43} First, Blair argues that the trial court erred when it granted the
prosecution’s motion to quash, prohibiting her from subpoenaing the production of
certain documents for trial. On the day before trial, Blair filed two subpoenas
duces tecum: (1) requesting Trooper Young to bring “a copy of her call log to and
from dispatch from the start of her shift on September 5, 2011, LHP 11 09 05 000
865, and a copy of her computer log (running license plate information and
driver’s license information) from the same shift on September 5, 2011;” and (2)
requesting the Keeper of Records and/or Office Manager at Ralls Automotive to
bring “a copy of or the original invoice for Megan Blair * * * for service to her
2004 Honda Civic on September 6, 2011, Customer ID 2263.” (Docs. 21, 22, 23,
24). The prosecution subsequently filed a motion to quash the subpoenas. The
same day, the trial court granted the prosecution’s motion providing the following
reason: “Criminal Rule 17(C) reads that a court may quash a subpoena if
compliance would be unreasonable or oppressive. Considering that the trial is
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scheduled to commence in less than 24 hours, this Court finds Defendant’s
subpoenas to be unreasonable and oppressive, and therefore, they are quashed.”
(JE, Mar. 6, 2012).
{¶44} Under Crim.R. 17(C), a subpoena may be used to command a person
to produce in court books, papers, documents, and other objects. However, the
court upon motion of a party may quash or modify the subpoena if compliance
would be unreasonable or oppressive. Crim.R. 17(C). Generally, an appellate
court applies an abuse of discretion standard when reviewing a trial court’s
decision to quash a subpoena. State v. Wasmus, 10th Dist. No. 94APA07–1013
(Apr. 27, 1995); State v. Strickland, 183 Ohio App.3d 602, 2009–Ohio–3906, ¶ 37
(8th Dist).
{¶45} At the outset we note that Blair never established the relevance of
Trooper Young’s logbooks to her defense or how her defense would be hindered
by the exclusion of this evidence. The record demonstrates that before filing this
subpoena, Blair’s counsel failed to make a discovery demand regarding Trooper
Young’s logbooks, despite having over six months to do so. Nevertheless, for
reasons not apparent in the record, Blair’s counsel chose to spring this request on
the prosecution less than twenty-four hours before trial, thereby depriving the
prosecution of adequate notice to prepare for trial the following day without
requesting a continuance. Notably, had Blair used the proper vehicle to request
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this evidence through a discovery demand, the trial court still retained discretion to
strike this last minute request as untimely pursuant Crim.R 16(M).2
{¶46} The second subpoena duces tecum filed by Blair the day before trial
requested the records keeper from Ralls Automotive to bring an invoice from
Blair’s service visit to a mechanic there the day after her arrest for OVI. Blair’s
counsel attempted to admit this invoice into evidence at the suppression hearing
over the prosecution’s objection that the document was not provided in discovery
and that the document was hearsay. The trial court sustained the prosecution’s
objection on both grounds and excluded the evidence, but allowed Blair’s counsel
to proffer the exhibit using Blair’s testimony. Blair testified that she took her car
to the mechanic the next day and no repairs to her rear license plate light were
needed.
{¶47} It is obvious from Blair’s proffered testimony that she was
attempting to use this invoice to argue that her license plate light was operable at
the time Trooper Young effectuated the traffic stop. However, this invoice from
the day after the arrest was irrelevant to resolving the issue of whether Trooper
Young had probable cause at the time she stopped Blair. Furthermore, Blair’s
2 Criminal Rule 16(M) states as follow: “Time of motions. A defendant shall make his demand for discovery within twenty-one days after arraignment or seven days before the date of trial, whichever is earlier, or at such reasonable time later as the court may permit. A party’s motion to compel compliance with this rule shall be made no later than seven days prior to trial, or three days after the opposing party provides discovery, whichever is later. The motion shall include all relief sought under this rule. A subsequent motion may be made only upon showing of cause why such motion would be in the interest of justice.”
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subpoena duces tecum was a last minute attempt to bypass the trial court’s ruling
regarding the admissibility of this evidence at the suppression hearing.
Notwithstanding the trial court’s ruling to quash the subpoena, Blair was still able
to present testimony similar to that which she gave at the suppression hearing
regarding her visit to the mechanic the day after her arrest. We also note that the
trial took place approximately six months from the date Blair claimed to have
visited the mechanic regarding her rear license plate light. The record is devoid of
any indication that Blair disclosed this invoice in reciprocal discovery to the
prosecution despite having possession of this document throughout the course of
the entire court proceedings.
{¶48} Accordingly, for all the reasons stated we find no abuse of discretion
in the trial court’s decision to grant the prosecution’s motion to quash Blair’s
subpoenas.
{¶49} Next, Blair contends that the trial court committed reversible error
when it prevented her from presenting certain evidence at the suppression hearing
and at trial. Blair also claims the trial court prohibited her from cross-examining
the prosecution’s witnesses regarding her specific breathalyzer test results at the
suppression hearing and at trial. The prosecution contends that Blair’s counsel
was merely making a veiled attempt to generally attack the reliability and validity
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of the breath testing instrument and to relitigate settled substantial compliance
issues at trial.
{¶50} Initially, we note that while the accused may not challenge the
general accuracy of a legislatively determined testing instrument, he may
challenge the accuracy of his specific test result. Columbus v. Day, 24 Ohio
App.3d 173, 174 (1985). Thus, the accused may attempt to show that something
went wrong with his test and consequently, the result was at variance with what
the approved testing procedure should have produced. Id. Additionally, the
accused may attack the test results pursuant to the rules of evidence and may also
use expert testimony regarding the weight to be given to the evidence. See
generally State v. French, 72 Ohio St.3d 446, 1995-Ohio-32 and State v. Vega, 12
Ohio St.3d 185 (1984).
{¶51} However, this issue is separate from the matter of whether the
prosecution proved the breath test was performed in substantial compliance with
the regulations of the Director of the Department of Health. The Supreme Court
of Ohio has held the following regarding the admissibility of substantial
compliance issues at trial.
Crim.R. 12(C)(3) and Traf.R. 11(B)(2) provide that “[m]otions to suppress evidence * * * on the ground that it was illegally obtained” must be raised before trial. We have expressly held that Crim.R. 12(C)(3) (then (B)(3)) requires a pretrial suppression hearing in a[n] [OVI] prosecution to determine the admissibility of alcohol-content test results claimed to have been
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illegally obtained based on noncompliance with the director’s rules governing the maintenance and operation of testing devices. If a defendant does not move for suppression prior to trial, he or she “may not object to the admissibility of the test results at trial on those grounds.”
***
In summary, a challenge asserting that test results were not obtained in compliance with the director’s rules must be raised by a defendant prior to trial by way of a pretrial motion to suppress. Failure to file such a motion constitutes a waiver, so that a defendant may not force the state to lay a foundation for the admissibility of the test results at trial: issues concerning compliance with the director’s rules may not be raised for the first time at trial to challenge admissibility. Moreover, finality attaches to a ruling on a motion to suppress. Accordingly, the ruling of substantial compliance by the court at a pretrial suppression hearing prevails at trial, and a defendant may not raise, at trial, a challenge to the admissibility of test results based on the assertion that the state failed to comply with the director’s rules in obtaining them.
State v Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, ¶¶ 11-12 (internal
citations omitted). As previously discussed in our resolution of the first
assignment of error, Blair failed to articulate any specific factual basis alleging
Sergeant Hunter failed to comply with the Ohio Department of Health regulations
at the suppression hearing. This lack of particularity triggered a “fairly slight”
burden on the prosecution to demonstrate that substantial compliance with the
Ohio Department of Health regulations was met. In reviewing the transcript from
the trial proceedings, the instances complained of by Blair regarding the trial
court’s limiting of her cross-examination were simply attempts by Blair’s counsel
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to relitigate substantial compliance issues at trial that she failed to articulate at the
suppression hearing. See Edwards at ¶ 20 (stating that compliance with Ohio
Department of Health regulations “is not a jury question and is to be decided by
the court prior to trial”). We further note that the trial court permitted Blair’s
counsel to question Trooper Young outside the presence of the jury to determine
whether Blair’s counsel intended to raise in front of the jury the prohibited issue of
substantial compliance rather than raising the permissible issue of attacking the
specific test result in her case. After listening to the questions prepared by Blair’s
counsel, the trial court determined that the questions attempted to relitigate the
issue of substantial compliance and were inappropriate for the jury. Thus, we find
no error with the trial court’s ruling limiting defense counsel’s cross examination
in this regard.
{¶52} The other issue complained of by Blair in this assignment of error
focuses on the trial court’s ruling excluding certain exhibits relating to the “invalid
sample test ticket” at the suppression hearing and at trial. This evidence relates to
the first breath test administered to Blair by Trooper Young which produced an
invalid result. The record demonstrates that the trial court excluded this evidence
at the suppression hearing and at trial because Blair’s counsel in both instances
failed to lay a proper foundation for the evidence to be admitted as an exhibit.
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{¶53} However, the trial court permitted Blair to question both Trooper
Young and Sergeant Hunter about the invalid test result at the suppression hearing
and at trial. Trooper Young testified that during her administration of the test
Blair failed to continually breathe into the machine as instructed, but instead
breathed and stopped, breathed and stopped, until the machine clicked off as
invalid. Even though Trooper Young maintained at trial that the invalid sample
was caused by Blair improperly blowing, Blair’s counsel elicited testimony from
Sergeant Hunter who read from the DataMaster Operator’s Manual that an
“invalid sample” indicates that the machine detected a substance in the mouth of
the subject blown into the instrument, and that if the subject did not blow hard
enough into the instrument, an “incomplete sample” or a “refusal” would be
indicated. However, Sergeant Hunter also testified that the invalid test sample
from Trooper Young’s administration of the first test did not affect the validity of
the breath sample he obtained from Blair in the second test which demonstrated
that the concentration of alcohol in her breath exceeded the legal limit.
{¶54} It is apparent from the record that Blair intended to introduce the
invalid sample test ticket to insinuate that the breathalyzer machine used to test her
was somehow malfunctioning because it produced an invalid sample test ticket
during Trooper Young’s administration of the test. Blair’s counsel was able to
convey this argument to the jury without the invalid test sample being admitted
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into evidence. Thus, even if the exhibits were excluded in error, Blair’s defense
was not hindered because the jury was still able to hear evidence relating to the
invalid sample and weigh the credibility of that evidence accordingly.
{¶55} Blair’s final arguments under this assignment of error pertain to her
allegations that the trial court erred in excluding certain exhibits at trial. Some of
the exhibits regarding the invalid test sample, test ticket,` Trooper Young’s
logbooks, and the mechanic’s invoice have already been addressed. The
remaining exhibits Blair sought to introduce were Trooper Young’s narrative
report and a list of medications for migraines and allergies that Blair took on the
day of her arrest. Initially, we note that Trooper Young’s narrative report was
admitted without objection at the suppression hearing. However, Blair’s counsel
failed to lay a proper foundation to allow the exhibit to be admitted at trial.
{¶56} With regard to the list of medications, at the suppression hearing,
Blair’s counsel attempted to admit this list into evidence over the prosecution’s
objection that the exhibit was never disclosed in discovery. Blair’s counsel
conceded on the record that she never shared the exhibit with the prosecutor prior
to the hearing. The trial court sustained the prosecution’s objection and excluded
the exhibit from evidence. However, at both the suppression hearing and at trial,
Blair testified to the medications she takes on a daily basis as part of her defense
and that she took those medications on the date of her arrest. Therefore, the
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factfinder was able to discern the relevance of this evidence and weigh it
accordingly.
{¶57} For all the reasons previously discussed, we find no error with the
conclusions of the trial court to admit or to exclude the evidence raised in this
assignment of error, and we further find that Blair suffered no violations of her
constitutional rights as alleged. Blair’s second assignment of error is overruled.
Third Assignment of Error
{¶58} In her third assignment of error, Blair argues that the trial court erred
when it imposed a one-year license suspension of her driver’s license without
giving her credit for the ninety-day Administrative License Suspension (“ALS”)
she received as a consequence of the concentration of alcohol in her breath testing
above the legal limit. Specifically, Blair alleges that the trial court’s failure to
credit her for the ninety days transformed the ALS from remedial to punitive in
nature as multiple punishments for the same offense, and therefore violated the
Double Jeopardy Clause of the United States Constitution.
{¶59} It is well settled that “an ALS imposed pursuant to R.C. 4511.191,
and a criminal [OVI] prosecution for violation of R.C. 4511.19 arising out of the
same arrest constitute separate proceedings for double jeopardy purposes.” State
v. Gustafson, 76 Ohio St.3d 425, 438, 1996-Ohio-299. However, “an
administrative license suspension imposed pursuant to R.C. 4511.191 ceases to be
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remedial and becomes punitive in nature to the extent the suspension continues
subsequent to adjudication and sentencing for violation of R.C. 4511.19.” Id.,
paragraph three of syllabus.
{¶60} Here, Blair’s ALS was an automatic consequence of the breath test
results indicating that the concentration of alcohol in her breath exceeded the legal
limit. See R.C. 4511.191(C)(1). Because this was Blair’s first offense, the
duration of her ALS was three months and went into effect at the time she tested
over the legal limit. See R.C. 4510.02; R.C. 4511.191 (C)(1)(a). The trial court
imposed the one-year license suspension as a part of Blair’s sentence stemming
from her conviction for OVI, in violation of R.C. 4511.19(A)(1)(a). This occurred
over six months after her ALS went into effect. Thus, Blair’s ALS was complete
nearly three months prior to the trial court imposing the judicial license suspension
for her OVI conviction. Therefore, because Blair’s ALS did not continue
subsequent to the adjudication and sentencing for her violation of R.C. 4511.19
[OVI], the ALS did not become punitive in nature as Blair now contends.
{¶61} Moreover, we note that although it is within a trial court’s discretion
to credit the time completed under an ALS against a judicial suspension of a
person’s driver’s license, Blair fails to direct us to any authority mandating that the
trial court do so. We further note that for a first time OVI offense, the trial court
was permitted to suspend Blair’s driver’s license for any period of time between
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six months and three years. See R.C. 4510.02. The trial court’s imposition of a
one-year license suspension in this case was well within the statutorily prescribed
limits. Accordingly, Blair’s third assignment of error is overruled.
{¶62} Based on the foregoing, the judgment of the Marion Municipal Court
is affirmed.
WILLAMOWSKI, J., concur.
/jlr
ROGERS, J., Concurring Separately.
{¶63} While I concur with the result reached by the majority, I write
separately to address the second assignment of error and the trial court’s actions as
to the two subpoenas duces tecum.
{¶64} First and foremost, the trial court was only presented with one
motion to quash. The State moved to quash Appellant’s subpoena directed to
Trooper Young and directing her to bring with her to trial her call log and her
computer log. The State alleged that these records had been provided in discovery
or were not relevant. Nowhere in its motion did the State allege that the requests
for production were unreasonable and oppressive. Yet that was the basis stated by
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the trial court to substantiate its ruling. There are no facts in the record that would
substantiate the trial court’s finding. Further, since the request was limited to one
Trooper and the day in question, the finding itself seems unreasonable and
arbitrary. Therefore, I would find error in the granting of the State’s motion to
quash.
{¶65} Second, there was no filing of any motion to quash the subpoena
directed to Ralls Automotive. Therefore, there was no reason for the trial court to
address that issue, let alone any evidence to substantiate a finding that such a
request for production was unreasonable and oppressive. Again, I would find
error by the trial court.
{¶66} However, Appellant has failed to demonstrate any prejudice to her
case from the erroneous ruling of the trial court. As noted by the majority,
Appellant failed to make any showing as to what relevant evidence would have
been gleaned from the logs, and Appellant testified as to the same matters that
might have been demonstrated by the records from Ralls Automotive. Therefore, I
would find the errors to be harmless in this case.
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