[Cite as State v. Rawnsley, 2011-Ohio-5696.]




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

STATE OF OHIO                                  :
                                               :      Appellate Case No. 24594
        Plaintiff-Appellant                    :
                                               :      Trial Court Case No. 10-CR-2359
v.                                             :
                                               :
ANN K. RAWNSLEY                                :      (Criminal Appeal from
                                               :      (Common Pleas Court)
        Defendant-Appellee                     :
                                               :
                                           ........   ...

                                               OPINION

                     Rendered on the 4th day of November, 2011.

                                               .........

MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery
County Courts Building, P.O. Box 972, 301 West Third Street, Dayton,
Ohio 45422
      Attorneys for Plaintiff-Appellant

JAY A. ADAMS. Atty. Reg. #0072135, 424 Patterson Road, Dayton, Ohio
45419
      Attorney for Defendant-Appellee

                                               .........

FAIN, J.

        {¶ 1} The State of Ohio appeals from an order of the trial court

suppressing evidence of a blood-alcohol test in the prosecution of
                                                                             2


defendant-appellee Ann K. Rawnsley for Aggravated Vehicular Assault, in

violation of R.C. 2903.08(A)(1), and one count of Operating a Vehicle

while      Under      the     Influence,       “in   violation       of   [R.C.]

4511.19(A)(1)(a)/4511.19(G)(1)(a).”        The State contends that Rawnsley

consented to the withdrawal of her blood for the test, or, in the

alternative, that the police officer ordering the test had both probable

cause for the search and exigent circumstances justifying a warrantless

search.

        {¶ 2} We conclude that Rawnsley’s consent to the blood draw was

not knowing and intelligent, in view of the fact that she was incorrectly

advised that she was under arrest and that if she did not consent, she

would be subject to the immediate suspension of her driver’s license.       We

also conclude that the trial court’s finding that the State failed to prove

exigent circumstances justifying a warrantless blood draw is not against

the manifest weight of the evidence.       Consequently, the order of the trial

court suppressing the evidence is Affirmed.

                                           I

        {¶ 3} The trial court made the following findings of fact.

        {¶ 4} “Defendant Ann Rawnsley was involved in a two vehicle

collision on April 24, 2010 at approximately 10:55 p.m. in Huber Heights,

Ohio on Brandt Pike near the entrance to the Wayne Estates apartment

complex.     Huber Heights Patrol Officer Joshau Fosnight was dispatched to
                                                                             3


the accident scene.      Officer Fosnight arrived at the scene at 10:56 p.m.

with his travel time after being dispatched being less than one minute.

Officer Fosnight, upon arrival, observed the two involved vehicles.

Another Huber Heights officer was focused upon one of the involved

vehicles prompting Officer Fosnight’s decision to focus his attention on the

second vehicle.        Officer Fosnight, as he approached the vehicle, was

stopped by an individual who indicated he had spoken to the female

occupant of the vehicle (with the occupant being Ann Rawnsley) and

informed her that the ‘police were on the way.’       The individual informed

Officer Fosnight that Ms. Rawnsley responded by saying ‘I’m f*cked.            I

have been drinking.’

      {¶ 5} “Officer Fosnight, as he peered into the vehicle, observed Ms.

Rawnsley on the vehicle’s front floorboard with her head resting on the

front driver’s seat.    Officer Fosnight, though with some difficulty, was able

to open the driver’s side front door, and, upon doing so, he, in addition to

the odor created by the airbag deployment, discerned a strong odor of

alcohol.   Ms. Rawnsley informed Officer Fosnight that she did not recall

the details of the collision, that she had been at Cricket’s bar, but that she

did not remember how much alcohol she had consumed.                     Officer

Fosnight, due to the severity of the collision creating the distinct possibility

that Ms. Rawnsley had suffered serious physical injury and the very quick

arrival of medical personnel, did not attempt to have Ms. Rawnsley
                                                                         4


perform the usual battery of field sobriety tests.

      {¶ 6} “The medical personnel, upon arrival, took charge of Ms.

Rawnsley.    Officer Fosnight, while Ms. Rawnsley was being medically

assessed, assisted other Huber Heights officers in processing the accident

scene.   Officer Fosnight stated, very candidly, that at no time did he

consider contacting a judge, either personally or through another officer,

in order to present the judge with a probable cause affidavit in an attempt

to secure a search warrant authorizing the withdrawal of Ms. Rawnsley’s

blood so that a blood alcohol test could be performed.

      {¶ 7} “When the paramedics began the ambulance transfer of Ann

Rawnsley to Miami Valley Hospital (MVH), Officer Fosnight followed the

ambulance to the hospital.     Officer Fosnight’s purpose in going to MVH

was to secure a blood draw from Ms. Rawnsley.            Ms. Rawnsley, upon

arrival at MVH, was initially assessed by the medical staff.         Officer

Fosnight, upon completion of the initial medical assessment, entered,

along with a MVH officer, Ms. Rawnsley’s room.       Officer Fosnight, upon

entering the room and as reflected by his testimony at the February 25

hearing, read, in a verbatim fashion, the BMV 2255 form mandated to be

read to an individual arrested for an OVI offense before the arrested

individual is requested to submit to a blood alcohol test. [Footnote

omitted.]

      {¶ 8} “The ‘Consequences of Test and Refusal’ language informed
                                                                             5


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.

        {¶ 9} “Ms. Rawnsley, upon being read the BMV 2255 language,

agreed to a blood draw.      Michelle Kelly, a    MVH phlebotomist, drew the

blood from Ms. Rawnsley using an OVI kit maintained at MVH.           The blood

draw was accomplished at 12:56 a.m., two hours after the collision.

Officer Fosnight took the OVI kit to the Huber Heights Police Department

and placed the kit into a refrigerator maintained by the Huber Heights

Police Department exclusively for the storage of OVI kits.       Thereafter, he

OVI kit was transported to the Miami Valley Regional Crime Lab, where,

ultimately, an alcohol test was completed by Forensic Toxicologist

Elizabeth Kiely.”

        {¶ 10} There is evidence in the record to support these findings.

        {¶ 11} Rawnsley   was   charged   by     indictment   with   Aggravated
                                                                              6


Vehicular Assault and with Operating a Vehicle while Under the Influence.

She moved to suppress the blood test evidence.         A hearing on the motion

was initially conducted on February 3, 2011.       The hearing was re-opened,

and resumed on February 25, 2011.          Following the hearing, the trial court

suppressed the blood test evidence, concluding that it was obtained as the

result of an unlawful search and seizure.

      {¶ 12} From the order suppressing evidence, the State appeals.

                                            II

      {¶ 13} The State’s sole assignment of error is as follows:

      {¶ 14} “THE TRIAL COURT ERRED WHEN IT SUSTAINED RAWNSLEY’S

MOTION TO SUPPRESS BECAUSE A WARRANTLESS BLOOD DRAW WAS

NOT A VIOLATION OF RAWNSLEY’S FOURTH AMENDMENT RIGHTS UNDER

THE CIRCUMSTANCES OF THIS CASE.”

                                  A.   The Consent Issue

      {¶ 15} The drawing of blood from a suspect is not a trivial invasion of

that person’s privacy.        Unlike other searches, it involves the actual

invasion   of   the    person’s   body.     And,   there   are   many   personal

characteristics that can potentially be discovered by an analysis of the

person’s blood.       Without consent, a blood draw requires probable cause

and either a warrant, or exigent circumstances justifying a search without

a warrant.

      {¶ 16} But one who obtains an Ohio driver’s license and avails himself
                                                                          7


or herself of the privilege thereby conferred of operating a motor vehicle

on the roads of this state has impliedly consented to a reasonably reliable

chemical test for intoxication.     This implied consent is codified in R.C.

4511.191, which has been held not to violate the limitations against

unreasonable searches and seizures set forth in either the Ohio or United

States   constitutions.     State    v.   Hoover,   123   Ohio   St.3d   41,

2009-Ohio-4993, ¶ 17-18, citing State v. Starnes (1970), 21 Ohio St.2d

38.   “Asking a driver to comply with conduct he has no right to refuse and

thereafter enhancing a later sentence upon conviction does not violate the

constitution.”   State v. Hoover, ¶ 22, (citations omitted).     Thus, upon

arrest, an improper or incomplete recitation of BMV Form 2255, or

otherwise improper or incomplete advice given to a defendant concerning

his or her rights under the implied consent statute, is not of constitutional

significance, and would not support the application of the exclusionary rule

to suppress the evidence obtained.

      {¶ 17} But the implied consent statute does not, by its terms, apply

to the case before us.     It specifies that: “Any person who operates a

vehicle * * * within this state * * * shall be deemed to have given consent

to a chemical test or tests of the person’s whole blood, * * * breath, or

urine to determine the alcohol * * * content * * * if arrested for a

violation of division (A) or (B) of R.C. 4511.19.”           R.C. 4511.191

(emphasis added).      If Rawnsley had been arrested, it would not be
                                                                         8


necessary to engage in a Fourth Amendment consent-to-search analysis –

she would have been deemed to have consented, and would have had no

constitutional right to refuse.   But the evidence offered by the State, in

the form of Officer Fosnight’s own testimony, established that she was not

arrested.    Therefore the implied consent statute does not apply, and

Rawnsley cannot have been deemed to have impliedly consented to the

withdrawal of her blood.

      {¶ 18} The State contends that no warrant was required for the blood

draw because Rawnsley affirmatively consented to it, independently of any

implied consent under the implied consent statute.         We agree with

Rawnsley and the trial court that her consent did not constitute a knowing

and intelligent waiver of her Fourth Amendment right to not be subjected

to a warrantless search, because she was told by Officer Fosnight that her

refusal to submit to the test would subject her to the immediate

suspension of her license, when this was not true.

      {¶ 19} The provision for an immediate suspension of a driver’s license

upon refusal to submit to a chemical test is contained in R.C.

4511.191(B)(1).     This provision, like the implied consent, itself, is

expressly predicated upon the fact that the person who is subject to the

suspension has been arrested for Operating a Vehicle while Under the

Influence.        There     is    no    provision    for   an    automatic

suspension-upon-refusal for a person, like Rawnsley, who has not been
                                                                           9


arrested for OVI.

      {¶ 20} Thus, when Officer Fosnight told Rawnsley that she would be

subject to an immediate, automatic driver’s license suspension if she did

not consent to the blood draw, that was not true.    Because Rawnsley was

misadvised by the police officer that there would be a serious adverse

consequence if she decided not to waive her Fourth Amendment right (not

to be subjected to a warrantless search) and consent to the blood draw,

her consent and concomitant waiver was not knowing and intelligent.       See

State v. Rice (1998), 129 Ohio App.3d 91.

                      B.   The Exigent Circumstances Issue

      {¶ 21} The trial court found, and we agree, that Officer Fosnight had

probable cause to believe that Rawnsley was under the influence of

alcohol when the collision occurred.   But the trial court held that the State

had failed to prove the existence of exigent circumstances justifying a

blood draw without a warrant.

      {¶ 22} In Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct.

1826, 16 L.Ed.2d 908, the Supreme Court of the United States held that

the taking of a blood specimen for the purpose of testing it for blood

alcohol concentration is permitted without a warrant if there is probable

cause and if there are exigent circumstances.          The Court held that

because the concentration of alcohol in the blood dissipates over time, the

police officer in that case had exigent circumstances justifying the taking
                                                                             10


of a blood sample without a warrant.     But there is no further development

of the facts surrounding exigency in the Schmerber opinion; there is no

indication in the opinion of the amount of time that intervened in that case

from the alleged offense to the taking of the blood specimen, and there is

no indication of the extent to which blood alcohol dissipates over time.

      {¶ 23} 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).

      {¶ 24} With    regard   to   exigent   circumstances,   the   trial   court

concluded:

      {¶ 25} “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
                                                                            11


cannot conclude that exigent circumstances existed.      FN 4.

      {¶ 26} “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).”

      {¶ 27} 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.

      {¶ 28} The State’s sole assignment of error is overruled.

                                         III

      {¶ 29} The State’s sole assignment of error having been overruled,

the order of the trial court suppressing evidence, from which this appeal is

taken, is Affirmed.

                             ..............
                                 12


DONOVAN and HALL, JJ., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Johnna M. Shia
Jay A. Adams
Hon. Connie S. Price
