Tuesday, November 22, 2011

DUI Law - Ohio Suppresses Blood Test From Hospital

Thank you to Regent Troy McKinney for delivering this gem to DAD last week. When does an arrest occur following alleged drunk driver being taken to the hospital due to crash injuries? Last week DAD discussed a Georgia case of Buford v. State of Georgia, --- S.E.2d ----, 2011 WL 5248199 (Ga.App.) where, faced with a similar set of facts, the court found an arrest had occurred prior to a blood draw (thus making the results admissible in court). In State of Ohio v. Rawnsley Slip Copy, 2011 WL 5319863 (Ohio App. 2 Dist.), 2011 -Ohio- 5696, a trial court suppressed a blood test where the driver was taken to a hospital following a two-vehicle crash.

The pertinent facts and findings were stated as follows:

“The ‘Consequences of Test and Refusal’ language informed Ms. Rawnsley that she was under arrest for an OVI violation and further informed her of the consequences if she refused to take a blood alcohol test. The reality, however, is that when Ms. Rawnsley was read the BMV 2255 language she was not under arrest. Officer Fosnight, again very forthrightly, was adamant on this issue at both the February 3 and February 25 hearings. It seems that a primary reason Ms. Rawnsley was not arrested is the Huber Heights Police Department's practice of not arresting an individual who is being admitted to the hospital. This practice is driven, it seems, by the possibility that Huber Heights will incur some type of financial responsibility for an arrestee's medical care. Ms. Rawnsley, upon being read the BMV 2255 language, agreed to a blood draw."

The appellate court, agreeing with the trial court that the defendant was not in fact under arrest prior to consenting to the draw, found that state law was violated and the result was inadmissible under implied consent. The appellate court then had to deal with the State's alternate argument, namely that there was probable cause and exigent circumstances for the blood draw, so therefore the results were still admissible. 

Holding that there was not justification for ignoring the requirement of a warrant , the opinion reads as follows:

The general problem of stale evidence in connection with blood alcohol concentrations, addressed in Schmerber v. California, has been codified in the Ohio Revised Code. For a test result to be admissible, the blood draw must take place within three hours of the alleged violation. R.C. 4511.19(D)(1)(b).

"With regard to exigent circumstances, the trial court concluded:

“Officer Fosnight, as he forthrightly admitted, did not consider making any effort to obtain a warrant. It seems to this court that the Huber Heights Police, in order to establish an exigent circumstance, had the obligation, particularly since the collision occurred not in the early morning hours but at approximately 10:55 p.m., to draft a probable cause affidavit and attempt to reach a judge, or to at least explain why this was not practical. If, after a good faith effort, such an attempt was unavailing, this court, without hesitation, would conclude that exigent circumstances existed. However, without such an attempt, or any explanation concerning why such an attempt was not practical, this court cannot conclude that exigent circumstances existed. FN$

“FN 4. The case of State v. Hollowell [, Montgomery App. No. 24010,] 2011–Ohio–1130 provides an example where the Montgomery County Sheriff's Department, using two deputies, were able to obtain a warrant to obtain a blood draw within the three hour period prescribed by O.R.C. 4511.19(D)(1)(b).”

"Essentially, the trial court found that the State had failed in its burden to prove the existence of exigent circumstances justifying a warrantless search. The evidence in the record supports the trial court's finding that Officer Fosnight responded to the scene within one minute of the collision. He was promptly made aware of circumstances establishing probable cause to believe that Rawnsley, the sole occupant of the front portion of one of the vehicles involved in the collision, was under the influence. Given these facts, we cannot say that the trial court's finding that the State failed in its burden of proving the existence of exigent circumstances is against the manifest weight of the evidence."

Editor's Note: The Rawnsley case is IMHO valuable on two points as described above. First, that the mere reading of an implied consent advisory which contains language telling a person that one is under arrest, does not necessarily make it so, and secondly, that exigent circumstances does not automatically exist merely because blood alcohol dissipates over time.

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