[Cite as State v. Ruby, 2012-Ohio-6077.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   John W. Wise, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 2012 CA 00006
                                               :
                                               :
TARREN RUBY                                    :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from the Perry
                                                    County Court Case No. TRC 11
                                                    00858

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             December 17, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

NANCY NASH RIDENOUR                                 J. MATTHEW DAWSON
Assistant Prosecuting Attorney                      35 S. Park Place, Suite 10
P.O. Box 569                                        Newark, Ohio 43055
New Lexington, Ohio 43764
[Cite as State v. Ruby, 2012-Ohio-6077.]


Edwards, J.

        {¶1}     Appellant, Tarren Ruby, appeals a judgment of the Perry County Court

convicting him of Driving Under the Influence (R.C. 4511.19(A)(1)(a)) upon a plea of no

contest. Appellee is the State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     On June 30, 2011, Trooper Daniel Moran was dispatched to the scene of

a traffic accident at 1:08 a.m. Appellant, the driver of the vehicle involved in the crash,

had already been transported to Licking Memorial Hospital. Trooper Moran went to the

hospital to question appellant. He noted a moderate odor of alcohol about appellant’s

person, and his eyes were red and glassy. Appellant admitted to consuming one beer

at 8:30 p.m. and one at 12:30 a.m. At 2:32 a.m. the trooper read appellant a BMV2255

form, and a nurse drew a blood sample at 2:44 a.m. The test showed 0.100 grams of

weight of alcohol per one hundred milliliters of whole blood. Appellant was charged with

operating a motor vehicle while intoxicated in violation of R.C. 4511.19(A)(1)(a) and

driving with a prohibited blood alcohol content in violation of R.C. 4511.19(A)(1)(b). He

was also charged with failure to control (R.C. 4511.202) and driving while wearing

earphones (R.C. 4511.84).

        {¶3}     Appellant filed a motion to suppress the blood test results on the basis that

the trooper did not read appellant the BMV2255 form within a two hour limit and did not

request a blood sample within a three hour limit in violation of R.C. 4511.19(D)(1). The

court overruled the motion to suppress.

        {¶4}     Appellant then entered a plea of no contest to operating a motor vehicle

while intoxicated in violation of R.C. 4511.19(A)(1)(a). At the plea hearing, the results of
Perry County App. Case No. 2012 CA 00006                                               3


the blood alcohol test were not discussed in the recitation of the facts or the court’s

finding of guilt. All other charges were dismissed. Appellant was fined $550.00 and

sentenced to sixty days incarceration with fifty-seven days suspended. He was ordered

to serve three days in a driving intervention program in lieu of incarceration, placed on

probation for one year and his driver’s license was suspended for six months. He

assigns a single error on appeal:

       {¶5}   “WHETHER OR NOT THE TRIAL COURT ERRED IN DENYING THE

DEFENDANT’S MOTION TO SUPPRESS THE RESULTS OF A BLOOD ALCOHOL

TEST WHERE THE OFFICER EXCEEDED HIS AUTHORITY PURSUANT TO ORC

4511.192(A) AND ORC 4511.19(D).”

       {¶6}   Appellant pleaded no contest to OVI. The trial court found appellant guilty

of R.C. 4511.19(A)(1)(a) and sentenced appellant under that charge. The results of the

blood test are not necessary to establish a violation of R.C. 4511.19(A)(1)(a). State v.

Arenz, 5th Dist. No. 06CA111, 2007-Ohio-4283, ¶18; State v. Kee, 5th Dist. No. 04 CAC

09 064, 2005-Ohio-4707, at ¶ 29; State v. Stack (Dec. 17, 1999), 5th Dist. No.

99CA00085. Appellant has not raised a manifest weight of the evidence assignment

relative to the evidence supporting his conviction for a violation of               R.C.

4511.19(A)(1)(a).    Further, the trial court does not refer to the blood test results in

finding appellant guilty of violating R.C. 4511.19(A)(1)(a).
Perry County App. Case No. 2012 CA 00006                                      4


      {¶7}   Appellant’s assignment of error is overruled.

      {¶8}   The judgment of the Perry County Court is affirmed.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                             JUDGES

JAE/r1018
[Cite as State v. Ruby, 2012-Ohio-6077.]


                IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
TARREN RUBY                                      :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2012 CA 00006




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Perry County court is affirmed. Costs assessed to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
