[Cite as State v. Falconer, 2012-Ohio-2293.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STAE OF OHIO                                   :     JUDGES:
                                               :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :     Hon. Sheila G. Farmer, J.
                                               :     Hon. John W. Wise, J.
-vs-                                           :
                                               :
JOHN D. FALCONER                               :     Case No. 2011CA00233
                                               :
        Defendant-Appellant                    :     OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Massillon Municipal
                                                     Court, Case No. 2011TRC1601



JUDGMENT:                                            Affirmed/Reversed in Part and
                                                     Remanded



DATE OF JUDGMENT:                                    May 21, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ROBERT A. ZEDELL                                     MICHAEL BOSKE
Massillon Law Department                             122 Central Plaza North
Two James Duncan Plaza                               Canton, OH 44702
Massillon, OH 44646
Stark County, Case No. 2011CA00233                                                     2

Farmer, J.

      {¶1}   On March 12, 2011, Ohio State Highway Patrol Trooper Johnnie Maier

stopped appellant, John Falconer, for weaving in his marked lane. After conducting

field sobriety tests and collecting a blood sample, Trooper Maier charged appellant with

driving under the influence in violation of R.C. 4511.19 and driving in marked lanes in

violation of R.C. 4511.33.

      {¶2}   On May 16, 2011, appellant filed a motion to suppress, challenging the

HGN field sobriety test and the blood test sample. A hearing was held on August 1,

2011. By judgment entry filed September 12, 2011, the trial court denied the motion,

finding Trooper Maier had probable cause to stop appellant, the HGN field sobriety test

was conducted in substantial compliance, and the blood test sample was collected and

handled according to the Department of Health regulations.

      {¶3}   On September 28, 2011, appellant pled no contest. By journal entry filed

same date, the trial court found appellant guilty and sentenced him to a three day driver

intervention program in lieu of three days in jail, imposed fines and costs, and

suspended his driver's license for six months.

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶5}   "THE TRIAL COURT ERRED IN NOT SUPPRESSING THE RESULTS

OF APPELLANT'S BLOOD TEST WHEN THE STATE FAILED TO PROVIDE

EVIDENCE THAT IT SUBSTANTIALLY COMPLIED WITH THE OHIO DEPARTMENT

OF HEALTH REGULATIONS REGULATING THE STORAGE AND TESTING OF
Stark County, Case No. 2011CA00233                                                      3

BLOOD SAMPLES ACCORDING TO OHIO ADMINISTRATIVE CODE (OAC) 3701-53-

01 ET SEQ."

                                            II

      {¶6}    "THE TRIAL COURT ERRED IN NOT SUPPRESSING THE RESULTS

OF THE HGN TEST, WHEN APPELLANT CLEARLY SUFFERED FROM A MEDICAL

CONDITION THAT AFFECTED THE RESULTS OF THE FIELD SOBRIETY TEST."

                                            I

      {¶7}    Appellant claims the trial court erred in denying his motion to suppress in

relation to the blood test sample. We agree.

      {¶8}    There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence.       State v. Fanning

(1982), 1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger

(1993), 86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to

apply the appropriate test or correct law to the findings of fact.      In that case, an

appellate court can reverse the trial court for committing an error of law.      State v.

Williams (1993), 86 Ohio App.3d 37. Finally, assuming the trial court's findings of fact

are not against the manifest weight of the evidence and it has properly identified the law

to be applied, an appellant may argue the trial court has incorrectly decided the ultimate

or final issue raised in the motion to suppress. When reviewing this type of claim, an

appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given case.
Stark County, Case No. 2011CA00233                                                       4

State v. Curry (1994), 95 Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623;

Guysinger. As the United States Supreme Court held in Ornelas v. U.S. (1996), 116

S.Ct. 1657, 1663, "…as a general matter determinations of reasonable suspicion and

probable cause should be reviewed de novo on appeal."

       {¶9}   Specifically, appellant argues the trial court erred in limiting the scope of

the motion to only Trooper Maier's actions relative to the blood test sample. At the

commencement of the hearing, the following discussion was held on the scope of the

motion:

       {¶10} "DEFENSE: Well as far as the blood testing we have alleged that the

person drawing the blood is not qualified pursuant to 4511.19D1B um and we lay that

out and I think that challenges sufficient to transfer the burden. We've also alleged that

um …

       {¶11} "COURT: Okay so there was no … you've alleged that there was not a

qualified person to take the test.

       {¶12} "DEFENSE: We've certainly haven't been provided any discovery that will

clarify that issue so um …

       {¶13} "COURT: Okay, all right.

       {¶14} "DEFENSE: … we are alleging that, we're also alleging that the testing

wasn't performed in compliance with the Ohio Administrative Code 3701-53-05 um and

that's laid out in the second paragraph which is rather lengthy.

       {¶15} "COURT: Yeah I read that, I read that in your motion. I read your motion

so um is the State prepared to proceed on these issues that I have outlined and Mr.

Boske has gathered some information about that.
Stark County, Case No. 2011CA00233                                                      5


         {¶16} "STATE: If the challenge to the blood is from 3701-53-05 regarding the

collection and um handling of that specimen at the time of testing then yeah we are

prepared to go forward.

         {¶17} "COURT: All right and um the defense is prepared to go forward is that

right?

         {¶18} "DEFENSE: Yes sir.

         {¶19} "COURT: Okay would you like to make an opening statement Mr. Boske?

         {¶20} "DEFENSE: Your honor we would just ask that our motion be granted

based upon um the allegations put in that motion regarding probable cause to make the

arrest. As far as inadmissible statements there was nothing in the report that indicated

that my client had made any statements whatsoever but obviously if through testimony

turns out to be not accurate then we would ask the Court to suppress any statements

made after the arrest and after um based upon that provision. Also we're asking that

the HGN test be stricken as laid out with some specificity in paragraph C and again that

the alcohol testing wasn't done properly, wasn't transported properly, wasn't tested

properly as laid out in my motion. But we are prepared to go forward." T. at 4-5.

         {¶21} At the conclusion of the hearing, the trial court found the following:

         {¶22} "COURT: Okay based on the evidence that I've heard I think that there

was, of course a reasonable articulable suspicion for the stop although I don't think that

was one of the issues in the Motion to Suppress um my finding is that there was

probable cause to arrest for OVI for um including the red glossy eyes, the speech, the

HGN which appears to have been done correctly um the walk and turn of course was

not an issue but the walk and turn, and the one leg stand as well as the admission of
Stark County, Case No. 2011CA00233                                                         6


drinking.   So the findings, there was probable cause.          The other issue went to

statements that were made by the defendant. I heard no testimony that any statements

were made. I think that issue then is moot um as to the blood test I went over all the um

criteria as well as it was brought out um my finding is that the blood test was reflective

of the alcohol in the defendant's system and that the Motion to Suppress will be

overruled on that issue. I would ask the State to prepare an entry based on my findings.

We will give you then um the issue is a trial date. Any disease that was brought up was

never brought up to this Court so I don't have any idea what it is, if there is any or if an

allegation (inaudible) substantiate allegation um if anything of that nature provided on

discovery back to the State, on any illness that could effect his blood of the HGN or…"

T. at 44-45.

       {¶23} Appellant argues the trial court's ruling was incorrect because testimony

was not presented concerning the blood test sample and its refrigeration after placing

the sample in a U.S. postal mailbox approximately two and one half hours after the stop.

       {¶24} Crim.R. 47 provides that a motion to suppress "shall state with particularity

the grounds upon which it is made and shall set forth the relief or order sought." The

state waives this issue if not raised by objection. State v. Mayl, 154 Ohio App.3d 717,

2003-Ohio-5097, ¶22.

       {¶25} " 'The defendant must first challenge the validity of the alcohol test by way

of a pretrial motion to suppress; failure to file such a motion "waives the requirement on

the state to lay a foundation for the admissibility of the test results." State v. French

(1995), 72 Ohio St.3d 446, 451, 650 N.E.2d 887. After a defendant challenges the

validity of test results in a pretrial motion, the state has the burden to show that the test
Stark County, Case No. 2011CA00233                                                     7


was administered in substantial compliance with the regulations prescribed by the

Director of Health. Once the state has satisfied this burden and created a presumption

of admissibility, the burden then shifts to the defendant to rebut that presumption by

demonstrating that he was prejudiced by anything less than strict compliance. * * *

Hence, evidence of prejudice is relevant only after the state demonstrates substantial

compliance with the applicable regulation.' (Emphasis added.) Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 24." State v. O'Neill, 175 Ohio App.3d

402, 2008-Ohio-818, ¶19.

      {¶26} In order to determine if the trial court erred in not expanding the scope of

the motion to go beyond the testimony of Trooper Maier's involvement with the blood

test sample, we must look to the language of the motion. The May 16, 2011 motion to

suppress argued the following:

      {¶27} "Finally, the Defendant argues that the State must prove that the blood

test obtained from the Defendant was collected, handled, and tested in accordance with

regulations set forth by the Ohio Department of Health. While the ODH regulates the

requirements for OVI prosecutions of 'per se' violations, R.C. 4511.19(D)(1)(b) provides

that only a 'physician, a registered nurse, or a qualified technician, chemist, or

phlebotomist shall withdraw a blood sample' for the purpose of determining the alcohol

or drug content for 'under the influence' cases. The burden rests with the State to prove

the proper foundation of substantial compliance to use any blood alcohol content in an

'under the influence' prosecution of the Defendant.

      {¶28} "Ohio     Administrative   Code    (OAC)     3701-53-05    establishes   the

requirements for collecting and handling blood samples. First, the person collecting the
Stark County, Case No. 2011CA00233                                                    8

sample must use a non-volatile antiseptic on the area where blood is to be drawn. OAC

3701-53-05(B). The blood must be drawn with a sterile dry needle into a vacuum

container that contains a solid anticoagulant. OAC 3701-53-05(C); State v. Maudlin,

1998 Ohio App. LEXIS 297 (Ohio Ct. App., Clark County July 24, 1989). In State v.

Burnside, 100 Ohio St. 3d 152 (Ohio 2003), the Supreme Court of Ohio held that the

State must prove that a solid anticoagulant was used. If the State is unable to prove

this required element, it is not in substantial compliance with OAC 3701-53-05(C). The

State must also provide evidence that the container of blood was 'sealed in a manner

such that tampering can be detected and have a label which contains at least the

following information: (1) name of suspect; (2) date and time of collection; (3) name or

initials of person collecting the sample; and (4) name or initials of person sealing the

sample.' OAC 3701-53-5(E). Also, the blood sample must be refrigerated when it is

either not in transit or under examination. OAC 3701-53-5(F). The State must also lay

the foundation for chain of custody of the sample, to ensure it has not been substituted

or tampered with.      Further, OAC 3701-53-06 through 3701-53-09 established the

requirements for the laboratory and personnel testing the blood sample. Again, the

burden is on the State to provide evidence of substantial compliance with these

regulations concerning the testing of the blood sample."

       {¶29} We find this motion was very specific and the scope of the hearing should

have included the procedures for the testing and preservation of the blood test sample.

We conclude the trial court erred in limiting its review.

       {¶30} Assignment of Error I is granted.
Stark County, Case No. 2011CA00233                                                       9


                                            II

       {¶31} Appellant claims the trial court erred in denying his motion to suppress in

relation to the results of the HGN field sobriety test. We disagree.

       {¶32} Specifically, appellant argues the HGN test should have been suppressed

because he suffers from a medical condition that affected the results.

       {¶33} Trooper Maier testified appellant told him that he suffered from a medical

condition that could affect his eyes, but he nevertheless conducted the HGN test in

compliance with the NHTSA manual. T. at 13. Trooper Maier testified to the following:

       {¶34} "During the lack of smooth pursuit test I did not notice either of those clues

in Mr. Falconer's eye, eyes rather, but not because it wasn't there it may have been

there it may not have been there but because um Mr. Falconer was unable or did not

follow my instructions and did not follow the stimulus as I requested." T. at 14. Trooper

Maier stated he found four clues out of six and appellant "could not complete the test

correctly." T. at 15-16.

       {¶35} On cross-examination, Trooper Maier admitted that appellant's medical

condition called "palsy" was familiar and recalled seeing that appellant's face on one

side "was kind of drooping." T. at 29. Appellant did not present any evidence on his

medical condition and the possible affect on the HGN test.

       {¶36} Upon review, we find the trial court did not err in denying the motion to

suppress the results of the HGN test.

       {¶37} Assignment of Error II is denied.

       {¶38} The judgment of the Massillon Municipal Court of Stark County, Ohio is

hereby affirmed in part and reversed in part and the matter is remanded to said court for
Stark County, Case No. 2011CA00233                                                10


a hearing on the procedures, testing, and preservation of the blood test sample after

Trooper Maier placed it in the mailbox.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




                                          _s/ Sheila G. Farmer________________



                                          _s/ W. Scott Gwin__________________



                                          _s/ John W. Wise___________________

                                                       JUDGES




SGF/sg 503
[Cite as State v. Falconer, 2012-Ohio-2293.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STAE OF OHIO                                   :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
JOHN D. FALCONER                               :
                                               :
        Defendant-Appellant                    :       CASE NO. 2011CA00233




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

judgment of the Massillon Municipal Court of Stark County, Ohio is affirmed in part and

reversed in part and the matter is remanded to said court for a hearing on the

procedures, testing, and preservation of the blood test sample after Trooper Maier

placed it in the mailbox. Costs to appellee.



                                               _s/ Sheila G. Farmer________________



                                               _s/ W. Scott Gwin__________________



                                               _s/ John W. Wise___________________

                                                           JUDGES
