[Cite as State v. Young, 2016-Ohio-621.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
 -vs-                                          :
                                               :   Case No. 2015CA0005
                                               :
 TRAVIS D. YOUNG                               :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Coshocton County
                                                   Municipal Court, Case No. TRC
                                                   1400995



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            February 17. 2016




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 ROBERT A. SKELTON                                 TOD A. BRININGER
 COSHOCTON LAW DIRECTOR                            1801 Watermark Dr., Ste. 350
 309 Main St.                                      Columbus, OH 43215
 Coshocton, OH 43812
                                                   SARAH M. SCHREGARDUS
                                                   492 City Park Ave.
                                                   Columbus, OH 43215
Coshocton County, Case No. 2015CA0005                                                       2

Delaney, J.

       {¶1} Appellant Travis D. Young appeals from the May 8, 2015 Judgement Entry

of the Coshocton Municipal Court and the court’s underlying decision of February 11,

2015 overruling his motion to suppress. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The following evidence is adduced from the suppression hearing before the

trial court on December 19, 2014.

                              Tangie Patterson Observes Appellant

       {¶3} This case arose on August 10, 2014 when Tangie Patterson drove from

Millersburg, Ohio to Layland, Ohio. Patterson came around a sharp curve and observed

appellant sitting on the edge of a seat of a motorcycle, rather than astride it, in the gravel

area at the side of the road. Appellant wore jeans, a bandanna, and no shirt; he was

smoking a cigarette. As Patterson observed him, appellant kept falling forward off the

motorcycle, as though he could not stand up.

       {¶4} Patterson proceeded to her home nearby, picked up her husband, and

returned to where she saw appellant. Appellant was now astride the motorcycle, but

could not hold it up; the motorcycle kept falling to either side. Patterson’s husband asked

appellant if he needed help and appellant said no. Patterson noticed appellant’s pants

were partly falling down. Patterson and her husband drove a short distance down the

road to turn around and by the time they had done so, appellant was gone.

       {¶5} Patterson went home, did some chores, and spoke to her neighbors. About

25 minutes later, she heard sirens and suspected appellant was involved in a crash due

to his apparent intoxication and the sharp curves in the road. Patterson jumped in her
Coshocton County, Case No. 2015CA0005                                                      3


truck and drove to the crash site, less than a mile from where she had first spotted

appellant; she observed appellant and the motorcycle on the ground in a ditch.

                         Christopher Moffatt Sees Appellant “Wipe Out”

       {¶6} Meanwhile, after Patterson had left appellant near the roadside smoking a

cigarette, Christopher Moffatt and his wife observed a man on a motorcycle approaching

a stop sign at a T-shaped intersection. Before the motorcycle reached the stop sign, the

operator lost control and the vehicle went off the side of the road, “wiping out” and sliding

20-25 feet before coming to rest in a ditch with the operator pinned underneath.

       {¶7} Moffatt stopped to help appellant and lifted the motorcycle off of him. He

noticed appellant’s pants were hanging off, he had no shirt on, and wore a bandanna.

Moffatt, a former police officer, also noticed appellant smelled strongly of an alcoholic

beverage and had slurred speech and bloodshot eyes. Moffatt told his wife to call 911.

                                           Investigation

       {¶8} Deputy Chris Walters was dispatched to the crash on County Road 19,

Layland. He saw appellant and the motorcycle in the ditch and observed apparent injury

to appellant. Walters spoke to appellant to check that he was awake and alert. Patterson

approached Walters and told him she thought appellant was drunk. Walters noted the

odor of an alcoholic beverage and observed a “busted” Jack Daniels bottle near the

motorcycle. Appellant provided yes and no answers to Walters’ questions and could not

recall his own date of birth. Walters did not request field sobriety tests because appellant

had to remain immobilized until the E.M.S. squad arrived.

       {¶9} Appellant was transported by ambulance to Coshocton Hospital and

Walters arranged for Don Stroup, a lab technician, to meet him at the hospital to perform
Coshocton County, Case No. 2015CA0005                                                      4


a blood draw. Walters read the B.M.V. 2255 form to appellant and was present when

Stroup drew his blood sample at 1:05 p.m.

       {¶10} Appellant’s family arrived at the hospital and in Walters’ presence, a sister

told appellant he needed to go to “rehab.”

       {¶11} Walters cited the following reasons why he suspected appellant was

operating his motorcycle under the influence of alcohol: the odor of an alcoholic beverage,

the statement of Tangie Patterson that she believed appellant was drunk, the statement

of appellant’s sister that he needed rehab, the manner of the crash itself, and the broken

Jack Daniels bottle at the scene.

       {¶12} Appellant’s blood test result yielded a concentration of .0276 of one per cent

or more by weight per unit volume of alcohol in his whole blood.

       {¶13} Appellant was initially cited by Uniform Traffic Ticket (U.T.T.) with one count

of O.V.I. pursuant to R.C. 4511.19(A)(1)(a) [“under the influence” violation]; one count of

failure to control pursuant to R.C. 4511.202; and one count of failure to wear a helmet

pursuant to R.C. 4511.53(B). Appellant entered pleas of not guilty. A second U.T.T. was

filed on September 2, 2014 citing appellant with one count of O.V.I. pursuant to R.C.

4511.19(A)(1)(f) [high-test per se violation]. Appellant entered a written plea of not guilty

to this offense.

       {¶14} Appellant filed a motion to suppress his blood test results because “[l]aw

enforcement authorities failed to administer this test in compliance with the requirements

of R.C. 4511.19, 4511.191, and Chapter 3701-53 of the Ohio Administrative Code,

thereby depriving [appellant] of due process of law as guaranteed by the federal and state
Coshocton County, Case No. 2015CA0005                                                       5


constitutions.” Appellant also filed a second motion to suppress asserting Walters lacked

probable cause to arrest appellant for O.V.I.

       {¶15} The matter proceeded to suppression hearing on December 19, 2014. At

the conclusion of the hearing, the trial court entered a Judgment Entry stating in pertinent

part, “At the completion of the hearing it is the order of this Court that the defendant is to

file a brief supplementing his argument as to the three hour time frame on or before

January 7, 2015. The State is granted until January 14, 2015 to file its response.”

       {¶16} Appellant filed a Supplemental Motion on January 7, 2015 noting the B.M.V.

2255 was not read to appellant “within 2 hours of the operation of the vehicle” and thus

appellant’s consent to the blood test was not voluntary. Appellee responded that the

blood test result was admissible if obtained within three hours of operation (which is the

case here) and that the 2-hour time frame to read the B.M.V. 2255 is only relevant to an

administrative license suspension, not the admissibility of the blood test. Moreover,

appellee argued, the blood test is still admissible with expert testimony.

       {¶17} On February 11, 2015, the trial court overruled the motion to suppress by

written Judgment Entry, finding, e.g., Walters had probable cause to cite appellant for

O.V.I. and to request a blood sample; appellant made no statements subject to Miranda;

and the blood test was taken within three hours of operation of the vehicle. The trial court

also found the B.M.V. 2255 was not read to appellant within two hours, but that fact was

relevant to validity of the administrative license suspension and irrelevant to admissibility

of the blood test result.

       {¶18} On May 8, 2015, appellee moved to dismiss the counts of failure to control,

no helmet, and “O.V.I. high test” in exchange for appellant’s plea of no contest to “O.V.I.”
Coshocton County, Case No. 2015CA0005                                                  6


The trial court granted the motion, accepted appellant’s plea of no contest to one count

of O.V.I., and sentenced appellant as a first-time O.V.I. offender. The 180-day jail term

was suspended on the condition that, e.g., appellant attend a 72-hour driver intervention

program.

        {¶19} Appellant now appeals from the judgment entry of conviction and sentence,

and the underlying judgment entry overruling his motion to suppress.

        {¶20} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

        {¶21} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

FAILED TO FIND THAT THE APPELLANT WAS NOT ARRESTED FOR OVI AS

REQUIRED PRIOR TO REQUESTING A CHEMICAL TEST UNDER O.R.C. 4511.191.

FIFTH      AND   FOURTEENTH         AMENDMENTS        TO     THE    UNITED      STATES

CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”

        {¶22} “II. WHERE, IN AN OVI PROSECUTION UNDER O.R.C. 4511.19, THE

TRIAL COURT FOUND THAT THE DEPUTY FAILED TO READ THE BMV 2255 TO THE

APPELLANT WITHIN TWO HOURS OF THE ALLEGED VIOLATION, THE TRIAL

COURT ERRED IN NOT SUPPRESSING THE BLOOD TEST RESULTS.                            O.R.C.

4511.192(A), FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”
Coshocton County, Case No. 2015CA0005                                                    7


                                       ANALYSIS

                                           I., II.

       {¶23} Appellant’s two assignments of error are related and will be considered

together. Appellant asserts the trial court should have granted his motion to suppress

because he was not “arrested” for purposes of R.C. 4511.191 and the officer allegedly

failed to read the 2255 within two hours. We disagree with both arguments.

       {¶24} Appellate review of a trial court’s decision to deny a motion to suppress

involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332, 713

N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial court assumes the role

of trier of fact and, as such, is in the best position to resolve questions of fact and to

evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661 N.E.2d 1030

(1996). A reviewing court is bound to accept the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Medcalf, 111 Ohio App.3d 142, 145,

675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the appellate court must

independently determine as a matter of law, without deference to the trial court’s

conclusion, whether the trial court’s decision meets the applicable legal standard. State

v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993), overruled on other

grounds.

       {¶25} There are three methods of challenging a trial court’s ruling on a motion to

suppress on appeal. First, an appellant may challenge the trial court’s finding of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the trial

court’s findings of fact are against the manifest weight of the evidence. See, State v.

Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
Coshocton County, Case No. 2015CA0005                                                         8


597 N.E.2d 1141 (4th Dist.1991). 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. See, Williams, supra.

Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final

issues raised in a 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. State v. Curry,

95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

       {¶26} In his first assignment of error, appellant argues he was not “arrested” for

O.V.I. within the meaning of R.C. 4511.191 when his blood was drawn at the hospital. As

appellee points out, this argument was not raised at the trial level. At the conclusion of

the suppression hearing, when given the opportunity to state the specific grounds for

suppressing any of the evidence, appellant articulated 1) the B.M.V. 2255 form was not

read to him within 2 hours, and 2) the phlebotomist who drew his blood was not properly

qualified. The trial court permitted the parties to file supplemental memoranda addressing

a single specific issue: the parameters of admissibility of the blood test if the B.M.V. 2255

was read outside the 2-hour time limit.

       {¶27} In his Supplemental Motion, filed January 7, 2015, appellant acknowledges

the issue is whether the 2-hour 2255 requirement affects the admissibility of the blood

test, then argues the delayed reading of the B.M.V. 2255 obviated his consent to the

blood draw. Appellant cites our decision in State v. Whitt for the proposition that a

defendant’s consent to a blood draw is not voluntary and is coerced where the 2255 is

“inapplicable.” 5th Dist. Licking No. 10-CA-3, 2010-Ohio-3761. Whitt’s holding, however,
Coshocton County, Case No. 2015CA0005                                                     9


is based upon the trial court’s finding the defendant was never “arrested,” and arrest is a

necessary precondition for seizure of a bodily substance and must precede an implied

consent given based upon the B.M.V 2255. Id. at ¶ 19, citing State v. Rice, 129 Ohio

St.3d 91, 717 N.E.2d 351 (7th Dist.1998).

       {¶28} On appeal, appellant now argues he was not “arrested.” We reject this

assignment of error on two bases. First, this argument was not raised before the trial

court. Appellant may not then raise this issue for the first time on appeal. State v. Neale,

5th Dist. Stark No. 2013CA00247, 2014-Ohio-4368, ¶ 29, citing State v. Bing, 134 Ohio

App.3d 444, 449, 731 N.E.2d 266 (1999).

       {¶29} Second, appellant’s argument fails on substantive grounds.            Walters

testified he read the 2255 form to appellant at the hospital and the form advises the

subject he is under arrest. (T. 30-31.) The instant case is factually similar to State v.

Lawrence, in which an injured driver was taken to the hospital where the 2255 was read.

5th Dist. Delaware No. 15 CAA 01 0010, 2015-Ohio-3906, ¶ 12. We found the language

of the BMV 2255 form, coupled with the “intent to arrest” and “constructive seizure” of

appellant, to be sufficient to meet the requirements of being “under arrest” for purposes

of the implied consent statute. State v. Lawrence, 5th Dist. Delaware No. 15 CAA 01

0010, 2015-Ohio-3906, ¶ 17, citing State v. Hollis, 5th Dist. Richland No. 12CA34, 2013–

Ohio–2586; see also, State v. May, 5th Dist. Morrow No.2010 CA 1, 2010–Ohio–4594, ¶

22. Appellant’s argument he was never effectually “arrested” is therefore without merit.

       {¶30} In his second assignment of error, appellant argues the trial court should

have suppressed the blood test result because the B.M.V. 2255 was not read within two

hours of operation of the vehicle, although he cites no authority establishing why this is
Coshocton County, Case No. 2015CA0005                                                    10


relevant to the test’s admissibility. Appellant asserts appeals from his conviction upon

the high-test per se violation, but we note he entered a plea of no contest to the driving

under the influence charge of 4511.19(A)(1)(a).       The “high-test per se” count was

dismissed.

       {¶31} We have previously rejected appellant’s arguments that have no effect upon

a conviction pursuant to R.C. 4511.19(A)(1)(a). Appellant's argument here and in his

motion to suppress is predicated upon his rights to due process pursuant to the Fifth and

Fourteenth Amendments to the United States Constitution and Section 16, Article I of the

Ohio Constitution. As noted by the trial court in its judgment order filed March 27, 2015,

appellant did not enter a no contest plea to R .C. 4511.191(A)(1)(f), but to R.C.

4511.191(A)(1)(a), the non-per se statute.

       {¶32} The trial court's ruling in denying the motion to suppress thus had no

bearing on appellant's conviction under R.C. 4511.191(A)(1)(a).

       {¶33} Our prior decisions held that by virtue of the two-issue rule, a decision which

is supported by one or more alternate grounds properly submitted is invulnerable to attack

on one issue only:

                     This rule as generally applied is that, where there are two

             causes of action, or two defenses, thereby raising separate and

             distinct issues, and a general verdict has been returned, and the

             mental processes of the jury have not been tested by special

             interrogatories to indicate which of the issues was resolved in favor

             of the successful party, it will be presumed that all issues were so

             determined; and that, where a single determinative issue has been
Coshocton County, Case No. 2015CA0005                                                  11


             tried free from error, error in presenting another issue will be

             disregarded.

             State v. Cooley, 5th Dist. Ashland No. 15-COA-012, 2015-Ohio-

             3904, ¶ 10, citing H.E. Culbertson Co. v. Warden, 123 Ohio St. 297,

             303 (1931).

       {¶34} Any opinion on the arguments herein would be solely advisory and we have

made clear our reluctance to engage in the issuance of advisory opinions. Id., 2015-Ohio-

3904 at ¶ 11, citing State v. Brown, 5th Dist. Stark No.1999CA00188, 2000 WL 94084

(Jan. 24, 2000).

       {¶35} The trial court properly overruled appellant’s motion to suppress and his two

assignments of error are overruled.

                                      CONCLUSION

       {¶36} Appellant’s two assignments of error are overruled and the judgment of the

Coshocton Municipal Court is affirmed.

By: Delaney, J. and

Gwin, P.J.

Baldwin, J., concur.
