[Cite as State v. Greene, 2019-Ohio-3155.]




                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                  HOCKING COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 18CA16
                               :
     vs.                       :
                               :    DECISION AND
BRANDON E. GREENE,             :    JUDGMENT ENTRY
                               :
     Defendant-Appellant.      :
_____________________________________________________________
                          APPEARANCES:

Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.

Benjamin Fickel, Hocking County Prosecutor, Logan, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

        {¶1} Appellant, Brandon Greene, appeals his convictions for aggravated

vehicular assault, a third-degree felony in violation of R.C. 2903.08(A)(1), and

OVI, a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(a). On

appeal, Appellant contends that the trial court erred by overruling his motion to

suppress. However, after a careful review of the record, we conclude that

Appellant’s sole assignment of error is without merit. Accordingly, we affirm the

judgment of the trial court.
Hocking App. 18CA16                                                                                                       2




                                                      FACTS

         {¶2} This matter was disposed of fairly early on in the litigation process

when Appellant entered no contest pleas to all charges in the indictment after the

trial court denied his motion to suppress. It is noted that Appellee failed to file a

statement of the case or facts. App.R. 16(B) provides that Appellee’s brief shall

include a statement of the case and statement of the facts, as required by App.R.

16(A)(5) and (6), “except that a statement of the case or of the facts relevant to the

assignments of error need not be made unless the appellee is dissatisfied with the

statement of the appellant.” As the parties appear to agree on the facts and case

history, we generally rely on the statement of the case and statement of the facts as

set forth in Appellant’s brief.

         {¶3} On March 19, 2017, at approximately 1:12 a.m., a vehicle driven by

Appellant collided with a vehicle driven by Hocking County Sheriff’s Department

Deputy Brian McManaway.1 Both drivers were transported to Hocking Valley

Community Hospital to receive medical care. Ohio State Highway Patrol Trooper

Nathan Smith first responded to the scene of the accident to investigate. Upon

arrival, he found Appellant’s vehicle had partially burned, but there was no alcohol



1
 Although it is not included in the facts as set forth by Appellant, it appears Appellant’s vehicle went left-of-center
and hit the cruiser head-on, resulting in serious injuries to both drivers. Sergeant McManaway’s injuries included a
broken ankle which resulted in numerous surgeries.
Hocking App. 18CA16                                                                                             3


inside of it. After completing an investigation at the scene, he attempted to

interview Appellant at the hospital.

        {¶4} Upon arrival at the hospital, Trooper Smith found Appellant to be

drifting in and out of consciousness. Appellant had a laceration to his forehead and

was on a backboard with a neck brace. Trooper Smith noticed a slight odor of

alcohol on Appellant but was not able to conduct any field sobriety tests. Trooper

Smith specifically noted that Appellant “could not keep his eyes open long enough

to administer” the horizontal-gaze nystagmus test. Appellant never admitted to

drinking or using illegal drugs. Trooper Smith nevertheless requested that

Appellant submit to a urine screen. Despite Appellant’s altered state of

consciousness, he agreed to submit to a urine test. Trooper Smith read the BMV

2255 to Appellant at approximately 3:10 a.m. At the time of the urine screen,

Appellant was receiving an intravenous drip of Toradol and antibiotics.

        {¶5} After obtaining the urine at 3:29 a.m., Trooper Smith completed form

HP 28. Trooper Smith failed to indicate whether Appellant was receiving any

fluids intravenously at the time of the test. He then sent the test to the post office

to be mailed at 5:15 a.m. on March 19, 2017. The laboratory received the urine on

March 28, 2017, to perform the urinalysis.2


2
 Although not referenced by Appellee, the written plea agreement in the record indicates Appellant’s urine tested
positive for results greater than 200ng/mL of marijuana metabolite, greater than 1000 ng/mL of methamphetamine,
greater than 1000 ng/mL of amphetamine, and 0.078 grams by weight of alcohol per one hundred milliliters (grams
percent) of urine +/- 0.002 grams by weight of alcohol per one hundred milliliters (grams percent) of urine.
Hocking App. 18CA16                                                                    4


      {¶6} Thereafter, on May 19, 2017, Appellant was indicted in the Hocking

County Court of Common Pleas with a third-degree count of aggravated vehicular

assault, a third-degree felony, in violation of R.C. 2903.08(A)(1)(a), and four

separate counts of driving under the influence (hereinafter “OVI”), first-degree

misdemeanors, in violation of R.C. 4511.19.(A)(1)(a), R.C.

4511.19(A)(1)(j)(viii)(II), R.C. 4511.19(A)(1)(j)(ix), and R.C. 4511.19(A)(1)(j)(i).

Appellant filed a motion to suppress certain evidence on October 19, 2017, which

the trial court denied after holding two days of evidentiary hearings. As a result,

on July 19, 2018, Appellant entered no contest pleas to all five counts of the

indictment. The trial court merged the four misdemeanor counts of OVI for

purposes of sentencing. Appellant was sentenced to a forty-eight-month prison

term for aggravated vehicular assault, as well as an additional one-hundred-eighty-

day’s jail term on the merged counts of OVI, to run concurrent with the felony

sentence. Appellant thereafter requested a stay of execution, which was denied by

the trial court, and this appeal followed.

                            ASSIGNMENT OF ERROR

I.    “THE TRIAL COURT ERRED BY OVERRULING MR. GREENE’S
      MOTION TO SUPPRESS.”

      {¶7} In his sole assignment of error Appellant contends the trial court erred

by overruling his motion to suppress. Appellant raises two arguments under his

assignment of error. First, Appellant contends the trial court erred in holding that
Hocking App. 18CA16                                                                    5


Trooper Smith had probable cause to place him under arrest for suspicion of

driving under the influence. Second, Appellant contends the trial court erred by

holding that the testing was collected and performed according to the procedure

manual of the laboratory that performed the analysis. The State counters by

arguing the trooper had probable cause to arrest Appellant based upon the serious

head-on collision caused by Appellant, as well as Appellant’s condition when the

trooper made contact with him at the hospital, which consisted of bloodshot eyes,

lethargic speech, a slight of odor of alcohol and an inability to stay awake. The

State contends that, based upon the totality of the circumstances as well as the

trooper’s training and experience, there was probable cause to arrest.

                                  Standard of Review

       {¶8} Our review of a trial court's decision on a motion to suppress presents

a mixed question of law and fact. State v. Jones, 4th Dist. Washington No.

11CA13, 2012–Ohio–1523, ¶ 6, citing State v. Roberts, 110 Ohio St.3d 71, 2006–

Ohio–3665, 850 N.E.2d 1168, ¶ 100 and State v. Burnside, 100 Ohio St.3d 152,

2003–Ohio–5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the

trial court acts as the trier of fact and is in the best position to resolve factual

questions and evaluate witness credibility. Id. Accordingly, we defer to the trial

court's findings of fact if they are supported by competent, credible evidence. Id.,

citing State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th
Hocking App. 18CA16                                                                    6


Dist.2000). Accepting those facts as true, we must independently determine

whether the trial court reached the correct legal conclusion in analyzing the facts of

the case. Id., citing Roberts at ¶ 100 and Burnside at ¶ 8.

                       Probable Cause to Arrest for OVI

      {¶9} A police officer has probable cause for an arrest if the facts and

circumstances within his knowledge are sufficient to cause a reasonably prudent

person to believe that the defendant has committed the offense. State v. Roar, 4th

Dist. Pike No. 13CA842, 2014-Ohio-5214, ¶ 28; State v. Hollis, 5th Dist. Richland

No. 12CA34, 2013-Ohio-2586, ¶ 28; State v. Cummings, 5th Dist. Stark No. 2005–

CA–00295, 2006-Ohio-2431, ¶ 15, citing State v. Heston, 29 Ohio St.2d 152, 280

N.E.2d 376 (1972). When evaluating probable cause to arrest for OVI, the totality

of the facts and circumstances can support a finding of probable cause to arrest

even where no field sobriety tests were administered. Hollis, supra; State v.

Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000)(superseded by statute).

      {¶10} Furthermore, a police officer does not have to observe poor driving

performance in order to effect an arrest for driving under the influence of alcohol if

all the facts and circumstances lead to the conclusion that the driver was impaired.

Hollis, supra; State v. Harrop, 5th Dist. Muskingum No. CT2000–0026, 2001 WL

815538 (July 2, 2001), citing Atwell v. State, 35 Ohio App.2d 221, 301 N.E.2d 709

(8th Dist.1973). This Court has recently observed that “ ‘[t]he standard for
Hocking App. 18CA16                                                                    7


determining whether an officer had probable cause to arrest an individual for OVI

is whether, at the moment of arrest, the officer had sufficient information, derived

from a reasonably trustworthy source of facts and circumstances, sufficient to

cause a prudent person to believe that the suspect was operating a motor vehicle

while under the influence.’ ” State v. King, 4th Dist. Athens No. 18CA5, 2018-

Ohio-4929, ¶ 17, quoting State v. Kilbarger, 4th Dist. Hocking No. 11CA23, 2012-

Ohio-1521, ¶ 18.

                                   Legal Analysis

      {¶11} Appellant first contends the trial court erred in holding that Trooper

Smith had probable cause to place him under arrest for suspicion of driving under

the influence. More specifically, Appellant argues that aside from the “slight

odor” of alcohol, all of the indicators of impairment observed by Trooper Smith

could be explained by, or attributed to, his severe injuries. Essentially, Appellant

contends there is an alternative explanation for his condition at the time the trooper

encountered him. In particular, Appellant contends that his bloodshot eyes could

be attributed to the fact he had just experienced a serious accident and had received

a significant head injury. He further suggests that although his speech was

lethargic, the trooper had no past experience with him to know what his normal

speech was like. Appellant also argues that he was drifting in and out of

consciousness as a result of his injuries. Finally, Appellant contends that courts
Hocking App. 18CA16                                                                   8


frequently find an officer lacks probable cause to arrest for OVI where the odor of

alcohol on a defendant is “slight” versus moderate or heavy.

      {¶12} In the present case, a serious accident which resulted from

Appellant’s vehicle going left of center and hitting a cruiser head-on is what

initiated the investigation. Trooper Smith’s first encounter with Appellant was at

the hospital, rather than the scene of the accident, as Appellant had already been

transported there due to his injuries. The record indicates Trooper Smith observed

a slight odor of alcohol upon encountering Appellant at the hospital, but that

Appellant did not admit to drinking and no alcohol was found in his vehicle. The

record further reveals that Trooper Smith observed Appellant’s speech was

lethargic, his eyes were bloodshot, and he was drifting in and out of sleep.

Appellant also notes that Trooper Smith was unable to conduct any field sobriety

testing. Although Appellant argues that the trooper’s observations can be

explained by the injuries he sustained in the accident, we believe they can equally

be attributed to impairment from alcohol or drugs.

      {¶13} Appellant cites State v. Phoenix, 192 Ohio App.3d 127, 2010-Ohio-

6009, 948 N.E.2d 468, ¶ 9 (1st Dist. 2010), for the proposition that an officer lacks

probable cause to arrest where the odor of alcohol on a driver is only “slight,”

rather than moderate to heavy. He further relies on State v. Finch, 24 Ohio App.3d

38, 492 N.E.2d 1254 (12th Dist. 1985) for the proposition that driving with
Hocking App. 18CA16                                                                  9


bloodshot eyes, a flushed face, or slurred speech, along with an odor of alcohol

does not violate the law where the officer failed to observe any impaired motor

coordination. However, in State v. Jarrell, 2017-Ohio-520, 85 N.E.3d 175, ¶ 41,

this Court recently noted “several factors indicating operation of a vehicle under

the influence of alcohol that a court should consider when reviewing the totality of

the circumstances surrounding an officer’s decision to administer field sobriety

tests[,]” as observed by the Eleventh District Court of Appeals in State v. Evans,

127 Ohio App.3d 56, 711 N.E.2d 761, fn. 2 (11th Dist. 1998); see also State v.

Coates, 4th Dist. Athens No. 01CA21, 2002 WL 851765, *5. These factors are as

follows, with no single one being determinative of the issue of impairment:

      (1) the time and day of the stop (Friday or Saturday night as opposed

      to, e.g., Tuesday morning); (2) the location of the stop (whether near

      establishments selling alcohol); (3) any indicia of erratic driving

      before the stop that may indicate a lack of coordination (speeding,

      weaving, unusual braking, etc.); (4) whether there is a cognizable

      report that the driver may be intoxicated; (5) the condition of the

      suspect's eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the

      suspect's ability to speak (slurred speech, overly deliberate speech,

      etc.); (7) the odor of alcohol coming from the interior of the car, or,

      more significantly, on the suspect's person or breath; (8) the intensity
Hocking App. 18CA16                                                                  10


      of that odor, as described by the officer (“very strong,” “strong,”

      “moderate,” “slight,” etc.); (9) the suspect's demeanor (belligerent,

      uncooperative, etc.); (10) any actions by the suspect after the stop that

      might indicate a lack of coordination (dropping keys, falling over,

      fumbling for a wallet, etc.); and (11) the suspect's admission of

      alcohol consumption, the number of drinks had, and the amount of

      time in which they were consumed, if given.

State v. Jarrell at ¶ 41, quoting Evans at fn.2 and Coates at *5.

      {¶14} Admittedly, the Evans factors have been utilized as part of a totality-

of-the-circumstances analysis surrounding an officer’s decision to administer field

sobriety tests, a decision which must only be supported by reasonable, articulable

suspicion, rather than probable cause. State v. Burkhart, 2016-Ohio-7534, 64

N.E.3d 1004, ¶ 23 (4th Dist.2016). However, because Trooper Smith was unable

to conduct any field sobriety tests due to Appellant’s physical condition and the

fact he was in the hospital, we find a consideration of these factors provides

guidance for determining if there was probable cause to arrest for OVI, when field

sobriety testing cannot be administered.

      {¶15} This case involves a serious accident caused by Appellant that

occurred at 1:12 a.m. on an early Sunday morning, in which Appellant went left of

center and hit an oncoming vehicle head-on, causing serious injury to the other
Hocking App. 18CA16                                                                  11


driver and himself. We believe the day and time of the accident, as well as the

manner in which the accident occurred are all indicative of impairment based upon

the above factors. To add to this, when the trooper encountered Appellant at the

hospital after the accident, he noticed an odor of alcohol coming from Appellant’s

person, albeit slight, coupled with bloodshot eyes and lethargic speech.

Additionally, the trooper observed that Appellant was drifting into and out of sleep

as he was trying to engage him. Further, although Appellant references the fact

that no field sobriety tests were performed, we have previously found probable

cause to arrest, based upon the totality of the circumstances, even where field

sobriety test results were determined to be inadmissible. State v. King, supra, at

¶ 20, citing State v. Brungs, 4th Dist. Pickaway No. 05CA18, 2005-Ohio-5776,

¶ 26.

        {¶16} Considering the above factors as part of a totality-of-the-

circumstances analysis, we find several factors present which, taken together with

Trooper Smith’s experience and training, would have provided him with probable

cause to arrest, despite a possible, alternative explanation for Appellant’s

condition. Thus, we find the present case distinguishable from both Phoenix and

Finch, in light of the serious accident caused by Appellant’s driving. Here, the

facts do not involve simply a “slight” odor of alcohol with no observation of

impairment. Nor do they merely involve bloodshot eyes, slurred speech and an
Hocking App. 18CA16                                                                  12


odor of alcohol, in the absence of any impaired motor coordination. Therefore, we

find no merit to this portion of Appellant’s argument.

      {¶17} Appellant next contends the trial court erred by holding that the

testing was collected and performed according to the procedure manual of the

laboratory that performed the analysis. More specifically, Appellant argues that

the trial court erred by neglecting to address Trooper Smith’s failure to indicate

that Appellant was receiving intravenous fluids. Appellant further argues the trial

court erred in determining that the urine sample was appropriately refrigerated

pursuant to regulation.

      {¶18} When a defendant challenges the blood or urine test results in a

motion to suppress, the state must show substantial compliance with the relevant

provisions of R.C. 4511.19 and O.A.C. § 3701–53. State v. Mayl, 106 Ohio St.3d

207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 42. “Once the state has shown

substantial compliance, the burden shifts to the defendant to demonstrate that he

would be prejudiced by anything less than technical compliance.” State v. Brown,

109 Ohio App.3d 629, 632, 672 N.E.2d 1050 (4th Dist. 1996). Further, only errors

that are “clearly de minimis” or “minor procedural deviations” can be excused

under the substantial-compliance standard. See State v. Mullins, 4th Dist. Ross No.

12CA3350, 2013–Ohio–2688, ¶ 10, citing State v. Burnside, supra, at ¶ 34; see

also State v. Mayl, supra, at ¶ 49.
Hocking App. 18CA16                                                                   13


      {¶19} Appellant essentially contends that O.A.C. § 3701-53-6 requires that

testing be performed in accordance with the laboratory’s written procedure manual

and that here, the Ohio State Highway Patrol Laboratory’s own procedure manual

required specific documentation that intravenous fluids were being received by a

defendant whose urine is being collected. Appellant argues that O.A.C. § 3701-53-

06 “requires that testing shall be in accordance with a laboratory’s ‘written

procedure manual of all analytical techniques or methods used for testing of

alcohol or drugs of abuse in bodily substances.’ ” However, O.A.C. § 3701-53-6

governs “Laboratory requirements” and actually states, in pertinent part, in section

(C) that “[t]he laboratory shall have a written procedure manual of all analytical

techniques or methods used for testing of alcohol or drugs of abuse in bodily

substances.” A review of the record indicates that OSP-103.07 Attachment A

entitled “Blood/Urine Analysis for Alcohol and Other Drugs,” with an effective

date of March 11, 2009 states in section 3(d), in pertinent part, that “[i]f a subject is

being treated with injections and transfusions, it may have a significant influence

on the interpretation of alcohol and other drug analysis results. The officer should

document such treatment on the HP-28.” OSP-103.07 Attachment A is part of the

“Ohio State Highway Patrol Crime Laboratory Toxicology Procedure Manual.”

      {¶20} It is undisputed that Appellant had an IV at the time his urine was

collected. Evidence was introduced at the suppression hearing indicating
Hocking App. 18CA16                                                                  14


Appellant already had an IV placed when he arrived at the hospital and he was

receiving normal saline at that time. While at the hospital he also received an

antibiotic and Toradol, which is a nonsteroidal pain medication that is not a

narcotic. Further, the transcript from the suppression hearing indicates Appellant

had not received any amphetamines or narcotics when his urine was collected. It is

also undisputed that Trooper Smith was unaware of the documentation requirement

associated with intravenous transfusions and, as a result, did not include that

documentation on the HP-28 form.

      {¶21} Appellant contends this omission prevented the State from

demonstrating substantial compliance with the regulations promulgated by the

Director of Health in the Ohio Administrative Code. The State, however, argues

that while documentation of receipt of intravenous fluids was required in the 2009

version of OSP-103.07 Attachment A, which was in effect in March of 2017, OSP-

103.07 Attachment A was revised just six months later, in September of 2017, and

this documentation requirement was removed. The State further notes that such

documentation is not required by the Ohio Administrative Code. Thus, the State

argues that the fact it is not required in the Ohio Administrative Code and because

the Ohio State Highway Patrol Laboratory policies and procedures were changed

to remove the requirement, the failure to document the receipt of intravenous fluids
Hocking App. 18CA16                                                                    15


on the HP-28 form is, at the most, a clearly de minimis error that does not prevent

the State from establishing substantial compliance.

      {¶22} Based upon the following, we agree with the State. O.A.C. § 3701-

53-05 addresses the collection and handling of blood and urine specimens and

contains several requirements, none of which expressly require that the receipt of

intravenous fluids be documented when a urine sample is collected. O.A.C.

§ 3701-53-05(D) provides as follows:

      The collection of a urine specimen must be witnessed to assure that

      the sample can be authenticated. Urine shall be deposited into a clean

      glass or plastic screw top container which shall be capped, “or

      collected according to the laboratory protocol as written in the

      laboratory procedure manual.” (Emphasis added).

Section (E) further specifies what must be listed on the label of the sample that is

taken, including the name of the suspect, date and time of collection, name or

initials of the person collecting the sample and the name or initials of the person

sealing the sample. Additionally, section (F) requires refrigeration of the sample

while not in transit or under examination. Thus, the Director of Health, through

the Ohio Administrative Code, did not find it necessary to expressly require

documentation of intravenous fluids when urine is collected.
Hocking App. 18CA16                                                                  16


      {¶23} Although section (D), as set forth above, does reference that the

collection of a urine specimen be “collected according to the laboratory protocol as

written in the laboratory procedure manual[,]” we cannot conclude that the failure

to document the receipt of intravenous fluids prevents the State from establishing

substantial compliance. We reach this decision in part based upon the Director of

Health’s failure to expressly require such documentation. We further reach this

decision based upon the fact that during the time between when Appellant’s urine

was collected and when the suppression hearing was held, the Ohio State Highway

Patrol omitted this requirement from its laboratory policies and procedures. Most

importantly, we reach our decision based upon the expert testimony and medical

provider testimony introduced at the suppression hearing.

      {¶24} First, Nick Baldauf, the chemical lab supervisor at the Ohio State

Highway Patrol crime lab, testified during the hearing. Although the parties here

seem to agree that the Ohio State Highway Patrol Crime Laboratory Toxicology

Procedure Manual contains policies and procedures relevant to the issues presented

in this case, testimony from Mr. Baldauf indicates otherwise. For instance, when

asked about the intravenous transfusion documentation requirement, the following

exchange took place:

      Q: Do you recognize this table of contents?

      A: Yes
Hocking App. 18CA16                                                              17


      Q: What, what is that?

      A: This our [sic] alcohol procedure manual.

      Q: Okay so that’s the policy and procedure for the crime lab of the

      State Highway Patrol?

      A: Yes

      Q: And, I’ve attached the, this is a pretty lengthy document, six

      hundred pages or something like that, is it not?

      A: Are you referring?

      Q: To the entire policy.

      A: Um this procedure manual says its only thirty-seven pages, but we

      also have just the overall toxicology laboratory manual, and then we

      have a drug manual, and then we have the actual operating procedures

      of performing the tests. So

      Q: (inaudible) and everything else right?

      A: A [sic] like we have permits yes, yes.

      Q: So what I’ve done is I’ve taken out attached to the table of

      contents the pertinent portion of the procedure that we’re interested in

      here, and that’s attachment A. What, can you describe what that is?

      A: OSP one 0 three point 0 seven, yes. Um is this our I’m sorry you

      have that out of order.
Hocking App. 18CA16                                                                 18


      Q: Yeah I’ve taken the, the table of contents which references this

      down here at the bottom.

      A: Okay

      Q: And then I just attached that.

      A: Yea this is a [sic] Ohio State Patrol, um this is a, this isn’t like our

      laboratory manual. This is from the patrol manual.

      Q: But it references that HP twenty-eight form that we referenced in

      our exhibit four, exhibit three. Sorry states [sic] exhibit C.

      A: Okay

      Q: And in that policy under this section here, two B, section three,

      sub-section D, a [sic] it mentions that specimen’s collection [sic]

      should be witnessed correct?

      A: Yes

      Q: And then one of the other things that is required out of the policies

      and procedures there is when an individual is getting an IV or some

      sort of injection that it should be noted on the HP twenty-eight form

      that’s submitted to the crime lab is that right?

      A: Um I believe so again like this isn’t part of our manual this is a

      reference to a Highway Patrol Procedure.”
Hocking App. 18CA16                                                                  19


Thus, based upon the foregoing testimony, it appears that the documentation

requirement at issue was required by an Ohio State Highway Patrol policy at the

time in question, but that requirement was not contained in the actual laboratory

policies and procedures, per the chemical lab supervisor at the Ohio State Highway

Patrol crime lab. Further, O.A.C. §§ 3701-53-05 and 06 reference “laboratory

procedure manuals” as opposed to patrol manuals. As such, we are unconvinced

that failure to comply with a patrol policy, as opposed to a laboratory policy,

prevents the State from establishing substantial compliance with the regulations

promulgated by the Director of Health, as contained in the Ohio Administrative

Code.

        {¶25} Further, even assuming this documentation requirement was part of

the “laboratory procedure manual,” the pertinent language of OSP-103.07

Attachment A states as follows: “If a subject is being treated with injections and

transfusions, it may have significant influence on the interpretation of alcohol and

other drug analysis results.” (Emphasis added). Here, the record reflects

Appellant’s IV contained only normal saline, an antibiotic and Toradol (a

nonsteroidal). In addition to testing positive for alcohol, Appellant’s urine was

positive for marijuana, amphetamines and methamphetamines. Thus, based upon

these particular facts, we conclude the trooper’s failure constituted a clearly de

minimis or minor, procedural deviation which did not prevent the State from
Hocking App. 18CA16                                                                  20


establishing substantial compliance. Further, Appellant introduced no evidence to

indicate his receipt of intravenous normal saline, antibiotics, or Toradol would

have influenced the drug analysis of his urine specimen. Thus, Appellant failed to

demonstrate he was prejudiced by the State’s less than technical compliance.

Accordingly, we find no merit to this portion of Appellant’s assignment of error.

      {¶26} Regarding Appellant’s argument that that the trial court erred by

neglecting to address Trooper Smith’s failure to indicate that Appellant was

receiving intravenous fluids, we disagree. Appellant’s motion to suppress raised

many challenges. The argument that the trooper failed to document that Appellant

was receiving intravenous fluids was contained in the sixth claim in his motion to

suppress. In its decision denying Appellant’s motion, the trial court expressly

rejected Appellant’s argument as to the sixth claim in his motion, based upon the

expert testimony introduced by the State. Thus, we find no merit to the argument

that the trial court failed to address this claim in violation of Crim.R. 12(F), which

requires the court to state its essential findings on the record.

      {¶27} Finally, Appellant contends the trial court erred in determining that

the urine sample was appropriately refrigerated pursuant to regulation. Appellant

notes that O.A.C. § 3701-53-05(F) requires that all urine samples must be

refrigerated while not in transit, but he takes issue with the fact that the urine

sample was in transit for ten days prior to arriving at the lab for testing. Appellant
Hocking App. 18CA16                                                                    21


concedes there is a lack of case law or other guidance on this issue, with the

exception of a Twelfth District Court of Appeals decision in which it was held that

a transit time of seven-and-one-half days did not violate the administrative rule,

which only required refrigeration while not in transit. See State v. Partin, 12th

Dist. Warren No. CA2010–04–040, 2011-Ohio-794, ¶ 37 (Feb. 22, 2011), citing

State v. Finley, 12th Dist. Warren No. CA95-05-041, 1996 WL 71489, *4 (Feb. 20,

1996) (involving a transit time of six days).

      {¶28} Appellant concedes the trooper did not violate the rule while the

sample was still in his possession prior to mailing it. Further, it is clear that neither

the legislature nor the Director of Health has defined what is a reasonable versus

an unreasonable time period for a urine sample to be unrefrigerated while in

transit. In the absence of any clear guidance stating otherwise, we adhere to the

rule which simply requires that the sample be refrigerated while not in transit. In

doing so, we find the reasoning of both Partin and Finley to be persuasive.

Although we believe a ten-day transit time is not ideal and may even be considered

excessive, Appellant introduced no evidence indicating the condition of the urine

sample was compromised as a result. Additionally, Mr. Baldauf testified that such

a delay is “not uncommon.” As such, we find no merit to Appellant’s final

argument.
Hocking App. 18CA16                                                              22


      {¶29} Having found no merit to any of the arguments raised under

Appellant’s sole assignment of error, his assignment of error is overruled.

Accordingly, the decision of the trial court denying Appellant’s motion to suppress

is affirmed, as is the final judgment of the trial court.



                                                       JUDGMENT AFFIRMED.
Hocking App. 18CA16                                                                   23


                               JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
      The Court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate issue out of this Court directing the
Hocking County Common Pleas Court to carry this judgment into execution.
       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
      McFarland, J. & Hess, J.: Concur in Judgment and Opinion.


                                 For the Court,


                           BY: __________________________________
                               Jason P. Smith, Presiding Judge
                             NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
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