State v. McMurray

2025 Ohio 196

• Court: Ohio Court of Appeals
• Decided: January 24, 2025
• Docket: 30168
• Status: Published

Opinion

[Cite as State v. McMurray, 2025-Ohio-196.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 30168 : v. : Trial Court Case No. 2023-TRC-2943 : WILLIAM McMURRAY : (Criminal Appeal from Municipal Court) : Appellant : :

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OPINION

Rendered on January 24, 2025

MICHAEL MILLS, Attorney for Appellant

STEPHANIE L. COOK, Attorney for Appellee

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EPLEY, P.J.

{¶ 1} Defendant-Appellant William McMurray appeals from his convictions in the

Dayton Municipal Court for operating a vehicle while under the influence of alcohol or

drugs (OVI), a violation of R.C. 4511.19(A)(1)(b), and a turn signal violation. For the -2-

reasons that follow, the judgment of the trial court will be affirmed.

I. Facts and Procedural History

{¶ 2} In the early morning hours of June 10, 2023, Dayton police officers were

patrolling on North Main Street when they observed a Chevy Impala “brake check” a truck

that was traveling behind it, slowing down to approximately 15 mph before speeding back

up again. A short time later, the Impala changed lanes without using its turn signal within

the required distance. Based on those observations, the officers suspected that the driver

of the Impala was impaired and initiated a traffic stop.

{¶ 3} Upon contacting the lone occupant of the vehicle (McMurray), officers

detected the odor of alcohol. McMurray also exhibited verbal aggression toward the

officers and had glossy, bloodshot eyes. Further, the officers noticed that McMurray had

a can of Rhinegeist beer and a red Solo cup in the front seat cupholders. McMurray was

then escorted out of the vehicle and led, angry and stumbling, to the police cruiser.

{¶ 4} Due to his aggressive behavior, McMurray was not given the chance to do

any field sobriety tests; instead, he agreed to submit to a blood test at Kettering Hospital.

After obtaining an OVI kit from the Ohio State Highway Patrol, a phlebotomist drew two

vials of McMurray’s blood, which she immediately placed back into the OVI test box. A

Dayton police officer then transported the box to headquarters and placed it in the

refrigerator. McMurray was arrested for OVI and transported to the Montgomery County

Jail.

{¶ 5} The sample was eventually tested at the Hamilton County Crime Lab, and

the results showed .13755 grams of alcohol per 100 milliliters of blood. McMurray was -3-

charged with two OVI offenses, under R.C. 4511.19(A)(1)(a) and (b), a seatbelt violation,

and a turn signal violation.

{¶ 6} McMurray filed a motion to suppress, which was overruled after a lengthy

hearing. The State later dismissed the OVI charged pursuant to R.C. 4511.19(A)(1)(a).

The case then progressed to a jury trial in April 2024, after which McMurray was found

guilty of the remaining OVI count. The trial court subsequently found him guilty of the turn

signal violation but not guilty as to the seatbelt charge. McMurray was sentenced to a

suspended jail term, three days in a driver intervention program, supervised probation,

and a driver’s license suspension. He was also ordered to pay fines, court costs, and jury

expenses. This appeal followed.

II. Compliance with the Ohio Administrative Code

{¶ 7} In his first assignment of error, McMurray alleges that the trial court erred in

overruling his motion to suppress because the State failed to demonstrate that the blood

test was done in accordance with Adm.Code 3701-53-02(B)(1) and failed to show

compliance with regulations regarding blood tubes.

{¶ 8} An appeal from a ruling on a motion to suppress presents a mixed question

of facts and law. State v. Ojezua, 2016-Ohio-2659, ¶ 15 (2d Dist.). When considering a

motion to suppress, the trial court has the role of trier of fact and is in the best position to

resolve factual questions and assess the credibility of witnesses. State v. Turner, 2015-

Ohio-4612, ¶ 10 (2d Dist.). As a result, we must accept the trial court’s findings of fact if

they are supported by competent and credible evidence. Id. “Accepting these facts as

true, the appellate court must then independently determine, without deference to the -4-

conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id.,

quoting State v. Koon, 2015-Ohio-1326, ¶ 13 (2d Dist.). The trial court’s application of law

to the findings of fact is subject to a de novo standard of review. Id.

{¶ 9} McMurray first argues that the suppression decision of the trial court was

improper because, according to Adm.Code 3701-53-02(B)(1), blood test measurements

are to be expressed as equivalent to “grams by weight of alcohol per one hundred

milliliters of whole blood, blood serum or plasma (grams per cent by weight),” and in this

case, Katie Gabbard, the toxicologist who performed the test, testified that the result was

“0.137 grams per 100 milliliters of blood.” It appears his contention is that the results

should have been invalidated because there was no specification as to whether the test

measured whole blood, blood serum, or plasma.

{¶ 10} While the lab report only noted that the specimen tested was “blood” and

that the blood had a concentration of 0.137 g/100 ML of ethyl alcohol, it can be inferred

based on Gabbard’s testimony that she was dealing with “whole blood.” Gabbard testified

that the testing of McMurray’s sample was done using the “whole blood ethanol control,”

and there was nothing in the record that mentioned other steps taken to convert the whole

blood into serum or plasma. We find no error here.

{¶ 11} But even assuming for the sake of argument that it was an error to consider

the test to have measured whole blood, we would find there was still substantial

compliance with the regulation. The Ohio Supreme Court has noted that “rigid compliance

with the Department of Health regulations is not necessary for test results to be

admissible.” State v. Burnside, 2003-Ohio-5372, ¶ 34. Substantial compliance, however, -5-

only excuses errors that are “clearly de minimis,” meaning mistakes that are “minor

procedural deviations.” Id. In this case, Gabbard testified that she followed all the steps

required by the regulations to conduct the test and told the court that she used the “whole

blood ethanol control.” Leaving out the word “whole” would be nothing more than a “minor

procedural deviation.”

{¶ 12} McMurray also takes issue with the physical vials or blood tubes used in

this case, questioning their origin and reliability. He claims that the State did not comply

with regulations because he believes that Adm.Code 3701-53-06 and 3701-53-07 should

be read together to “require the state to keep documentation concerning the source and

reliability of the blood tubes used to collect scientific evidence.” Appellant’s Brief at 7.

Before we address McMurray’s argument, it will be useful to examine the regulations.

{¶ 13} As pertinent to this case, Adm.Code 3701-53-06, titled “Collection and

handling of blood, urine and oral fluid specimens,” requires that blood to be drawn with a

sterile, dry needle into a vacuum container with an anticoagulant according to the

laboratory protocol. The anticoagulant-coated vacuum tubes include standard purple,

blue, green, pink, tan, gray, yellow and white topped tubes. The containers are to be

sealed in a way to detect tampering and labeled with the name of the subject, time and

date of the collection, name or initials of the person collecting the sample, and the name

or initials of the person sealing the sample. Adm.Code 3701-53-06(C),(F).

{¶ 14} Adm.Code 3701-53-07, “Laboratory requirements,” states that the chain of

custody and test results shall be identified and retained for not less than three years, and

positive biological samples (like blood) must be kept for a period of not less than one year -6-

from the report date. The regulation also mandates that labs successfully complete

national proficiency testing, maintain a written manual of all analytical techniques used

for testing, and that personnel be adequately trained and experienced. Adm.Code 3701-

53-07(A),(B),(C),(D).

{¶ 15} McMurray’s argument is that the two Administrative Code sections should

be read together to require the State to keep documentation concerning the source and

reliability of the blood tubes used to collect scientific evidence. This argument has no

merit. First, the cited regulations are, at best, tangentially related. Adm.Code 3701-53-06

explains how law enforcement and medical personnel must collect and handle biological

samples, while Adm.Code 3701-53-07 regulates how a toxicology lab must be run,

including record retention and employee certification. Nothing in the regulations suggests

that the State must keep track of where the collection tubes came from or document their

reliability. Although the chain of custody and results of blood tests must be retained for a

certain amount of time, the Administrative Code does not require the source of the

collection tubes to be known and documented; there is just no connection between the

two. Finally, we note that McMurray has provided no authority or case law to support his

position.

{¶ 16} We decline to adopt McMurray’s reading of the regulations and overrule his

first assignment of error.

III. Expert Witnesses and Opinions

{¶ 17} McMurray’s second assignment of error argues that the trial court erred in

restricting defense counsel from questioning the crime lab representatives about the -7-

manufacturer of the blood tubes. It appears he bases the argument on Evid.R. 702.

{¶ 18} According to Evid.R. 702, a witness may testify as an expert if the proponent

demonstrates to the court that it is more likely than not that the witness’s testimony relates

to matters beyond the knowledge or experience or ken possessed by laypersons, the

witness is qualified as an expert by specialized knowledge, skill, experience, training, or

education, and the testimony is based on reliable scientific, technical, or other specialized

information. To the extent that the testimony reports the result of a procedure, test, or

experiment, the testimony is reliable only if all of the following apply: (1) the theory upon

which the procedure, test, or experiment is based is objectively verifiable or is validly

derived from widely accepted knowledge, facts, or principles; (2) the design of the

procedure, test, or experiment reliably implements the theory; (3) the particular

procedure, test, or experiment was conducted in a way that will yield an accurate result.

{¶ 19} “A ruling concerning the admission of expert testimony is within the broad

discretion of the trial court and will not be disturbed absent an abuse of discretion.” Scott

v. Yates, 71 Ohio St.3d 219, 221 (1994).

{¶ 20} In this case, McMurray asserts that the court should not have allowed the

State’s witnesses testify to the results of the toxicology report because “the court knew

that a core component of the test was lacking any reliable basis.” This appears to be an

attack using Evid.R. 702(C)(3). However, it does not appear that Evid.R. 702 applies

because there were no expert witnesses. The State called Katie Gabbard, a toxicologist

at the Hamilton County Coroner’s Office, and Bob Topmiller, the chief of toxicology at the

office, but never certified them as experts. Thus, any argument regarding a potential error -8-

under Evid.R. 702 is inapplicable.

{¶ 21} Even if his argument is that the trial court should not have allowed the blood

test results to come in because the vials were manufactured in China, we can find no

evidence in the record that they were in any way defective.

{¶ 22} The second assignment of error is overruled.

IV. Jury Instructions

{¶ 23} In his third and final assignment of error, McMurray asserts that the trial

court gave an improper jury instruction concerning the elements of OVI. He contends that

the jury should have been told that the State must prove his blood-alcohol level at the

time he was actually driving the Impala.

{¶ 24} The purpose of jury instructions is to guide the jury in deciding questions of

fact based on the substantive law. State v. Rac, 2019-Ohio-893, ¶ 13 (2d Dist.); Griffis v.

Klein, 2005-Ohio-3699, ¶ 48 (2d Dist.). And while a trial court has great discretion to

decide how to fashion jury instructions, it must “present a correct, pertinent statement of

the law that is appropriate to the facts” of the case. State v. Gibson, 2019-Ohio-1022,

¶ 21 (2d Dist.), quoting State v. White, 2015-Ohio-492, ¶ 46. “A trial court’s decision to

give or to withhold particular jury instructions is reviewed for an abuse of discretion.” Id.

at ¶ 22.

{¶ 25} According to the record, in the early stages of the trial, McMurray argued

that the State had to prove his blood-alcohol level was above the limit while he was driving

his car, and that he was consuming alcohol immediately before being stopped by the

police. The State, at the close of testimony, sought a curative instruction because R.C. -9-

4511.19(D)(1)(b) allows the suspect’s blood to be drawn within three hours of the time of

the alleged violation. The trial court agreed with the State, noting “[y]ou can’t say the State

of Ohio failed to establish at the exact moment the Defendant was operating a vehicle

that his blood alcohol was (inaudible). That is not what the law requires. There’s a three-

hour window.” Trial Tr. at 111.

{¶ 26} McMurray now argues that he was “barred from arguing against the central

element of the offense before the jury as the trial court removed the requirement that the

jury find a per-se offense occurred at the time he was operating a motor vehicle.”

Appellant’s brief at 11. According to McMurray, “[i]In restricting [him] from arguing the

weight of the evidence as to the blood result the trial court effectively changed the

elements of the offense of per-se O.V.I. to be a per-se violation of a test within three hours

of having operated a motor vehicle.” Appellant’s Brief at 11. We disagree.

{¶ 27} Initially, we note that the only evidence in the record of a “curative

instruction” is the actual jury instruction given at the conclusion of the trial. The transcript

jumps from the parties arguing about the issue to the court giving its instructions, and it

told the jury:

The Defendant is charged with operating a vehicle with a prohibited

concentration of alcohol in his system in violation of R.C. 4511.19(A)(1)(b).

Before you can find the Defendant guilty, you must find beyond a

reasonable doubt that: on or about the 10th day of June 2023, in the City of

Dayton, Montgomery County, Ohio, William McMurray operated a vehicle

with a concentration of eight hundredths of one percent or more but less -10-

than seventeen hundredths of one percent by weight per unit volume of

alcohol in the Defendant’s whole blood.

Trial Tr. at 118.

{¶ 28} Based on this, we cannot say that the trial court abused its discretion in

giving this instruction. The instruction to the jury was substantially similar to the statute;

the only difference was slight. R.C. 4511.19(A)(1)(b) states that “[n]o person shall operate

any vehicle . . . if at the time of operation, the person has a concentration of eight-

hundredths of one percent or more but less than seventeen-hundredths of one per cent

by weight per unit volume of alcohol in the person’s whole blood,” and the instruction, as

already noted, stated that to find McMurray guilty the jury must find that he “operated a

vehicle with a concentration of eight hundredths of one percent or more but less than

seventeen hundredths of one percent by weight per unit volume of alcohol in the

Defendant’s whole blood.” There was no practical difference between the two.

{¶ 29} Further, to measure a person’s blood-alcohol content at the exact time he

or she was driving, as McMurray proposes, it would take an in-car device that constantly

checked the driver’s blood-alcohol level while actively operating the vehicle. And while

roadside breath analysis is possible, officers testified that McMurray’s behavior limited

their ability to perform field sobriety tests. Determining a driver’s blood-alcohol level at the

exact time he or she is operating the vehicle is nearly impossible and, therefore, the

legislature built into R.C. 4511.19 a time limit to collect the biological sample. As the

United States Supreme Court has reasoned, “because a police officer must typically

transport a drunk-driving suspect to a medical facility and obtain the assistance of -11-

someone with appropriate medical training before conducting a blood test, some delay

between the time of the arrest or accident and the time of the test is inevitable[.]” Missouri

v. McNeely, 569 U.S. 141, 153 (2013).

{¶ 30} The trial court did not abuse its discretion when it gave the disputed jury

instruction in this case. McMurray’s third assignment of error is overruled.

V. Conclusion

{¶ 31} The judgment of the trial court will be affirmed.

TUCKER, J. and HUFFMAN, J., concur.