[Cite as State v. Lawrence, 2015-Ohio-3906.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :    JUDGES:
                                               :    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                    :    Hon. Sheila G. Farmer, J.
                                               :    Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :
TERESA L. LAWRENCE                             :    Case No. 15 CAA 01 0010
                                               :
        Defendant-Appellee                     :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 14 CR I 02 0066




JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   September 23, 2015




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

ANDREW M. BIGLER                                    TODD A. WORKMAN
140 North Sandusky Street                           P.O. Box 687
3rd Floor                                           Delaware, OH 43015
Delaware, OH 43015
Delaware County, Case No. 15 CAA 01 0010                                                2

Farmer, J.

       {¶1}   On September 22, 2013, Ohio State Highway Patrol Trooper Ashley Elliott

was dispatched to a car accident. Upon arrival, Trooper Ashley found a two-vehicle

crash and learned that one of the drivers, appellee, Teresa Lawrence, was being

transported to an emergency care center. While speaking with appellee at the care

center, Trooper Elliott detected a strong odor of alcohol on her person, and observed

glassy, bloodshot eyes. Appellee also admitted to drinking prior to the crash. Trooper

Elliott conducted a field sobriety test, read appellee her Miranda rights, and asked

appellee to submit to a blood test. Appellee signed the consent form.

       {¶2}   On February 21, 2014, the Delaware County Grand Jury indicted appellee

on one count of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), and

two counts of driving a motor vehicle while under the influence of alcohol in violation of

R.C. 4511.19(A)(1)(a) and (f).

       {¶3}   On May 16, 2014, appellee filed a motion to suppress, claiming, among

other things, an involuntary consent because she had never been placed under arrest.

Hearings were held on September 26, and October 27, 2014. By judgment entry filed

January 23, 2015, the trial court granted the motion and suppressed the results of the

blood draw, finding no evidence of a lawful arrest.

       {¶4}   Appellant, the state of Ohio, filed an appeal and this matter is now before

this court for consideration. Assignment of error is as follows:

                                             I

       {¶5}   "THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S

MOTION TO SUPPRESS."
Delaware County, Case No. 15 CAA 01 0010                                                      3


                                               I

       {¶6}   Appellant claims the trial court erred in granting appellee's motion to

suppress. We agree.

       {¶7}   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, 1

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). 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, 86 Ohio App.3d 37 (4th Dist.1993).          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. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist.1993); Guysinger.

       {¶8}   Appellant argues the trial court "applied the incorrect law or, in the

alternative, incorrectly applied the facts to the appropriate law." Appellant's Brief at 6.

       {¶9}   R.C. 4511.191(A)(2) applies in this case and states the following:
Delaware County, Case No. 15 CAA 01 0010                                               4


             Any person who operates a vehicle, streetcar, or trackless trolley

      upon a highway or any public or private property used by the public for

      vehicular travel or parking within this state or who is in physical control of

      a vehicle, streetcar, or trackless trolley shall be deemed to have given

      consent to a chemical test or tests of the person's whole blood, blood

      serum or plasma, breath, or urine to determine the alcohol, drug of abuse,

      controlled substance, metabolite of a controlled substance, or combination

      content of the person's whole blood, blood serum or plasma, breath, or

      urine if arrested for a violation of division (A) or (B) of section 4511.19 of

      the Revised Code, section 4511.194 of the Revised Code or a

      substantially equivalent municipal ordinance, or a municipal OVI

      ordinance. (Emphasis added.)



      {¶10} In its January 23, 2015 judgment entry denying the motion to suppress,

the trial court found the following facts: Trooper Elliott arrived on the scene of the

accident when EMS was already present; appellee was transported to an emergency

care center; while speaking with appellee at the care center, Trooper Elliott detected a

strong odor of alcohol on her person and observed glassy, bloodshot eyes; appellee

admitted to consuming alcohol prior to the accident; Trooper Elliott administered the

HGN test and found six clues of impairment; Trooper Elliott read appellee her Miranda

rights and the BMV 2255 implied consent form. T. at 76-78, 80-81. The trial court then

concluded the following:
Delaware County, Case No. 15 CAA 01 0010                                                   5


              The officer says she placed the Defendant under arrest. However,

       there are no facts in this record that the trooper did anymore than read the

       2255 form to the Defendant and the Defendant signed the form.

              The Trooper had followed the Defendant to Westerville Medical

       where the Defendant was in a typical hospital room sitting up on the bed.

       That is where the Trooper conducted the HGN test. The officer's report

       says the Defendant was not charged.           The Trooper admits that the

       Defendant had no significant medical issues or injuries and was released

       shortly after the blood draw. The Defendant wasn't cited. The Trooper did

       nothing to seize the Defendant's body nor restrain her movement.



       {¶11} The trial court determined appellant was not lawfully arrested, as there

"was never an intent to arrest, no actual or constructive seizure of the Defendant and no

evidence that the Defendant thought she was under arrest."              In coming to this

conclusion, the trial court cited this court's opinion in State v. Kirschner, 5th Dist. Stark

No. 2001CA00107, 2001-Ohio-1915, *2, wherein this court stated: "Arrest occurs when

four elements are present: (1) an intent to arrest, (2) under real or pretended authority,

(3) accompanied by actual or constructive seizure or detention of the person, and (4)

which is so understood by the person arrested." The Kirschner opinion, quoting from

State v. Rice, 129 Ohio App.3d 91, 98 (7th Dist.1998), joined our brethren from the

Seventh District in holding "a valid arrest must precede the seizure of a bodily

substance, including a blood draw, and must precede an implied consent given based

upon Form 2255." Judge William B. Hoffman dissented, stating at *3, "In determining
Delaware County, Case No. 15 CAA 01 0010                                               6


when a person is arrested, a reviewing court should ask, in view of all the

circumstances surrounding the incident, would a reasonable person believe he or she

was not free to leave." Judge Hoffman continued:



             The officer's subjective belief as to the status of appellant’s custody

      does not control our decision. The fact Deputy Garrick did not intend to

      take actual physical custody of appellant after appellant had been

      transported to the hospital, does not negate the constructive seizure/arrest

      of appellant which occurred prior to his transport to the hospital. Likewise,

      the fact Deputy Garrick elected to issue a summons at the hospital rather

      than take actual physical custody of appellant does not negate his

      constructive seizure/arrest which occurred prior to his transport.



      {¶12} In State v. May, 5th Dist. Morrow No. 2010 CA 1, 2010-Ohio-4594, ¶ 18-

23, this court looked to whether there was an "intent to arrest" and a "constructive

seizure" of the defendant:



             The trial court in the case sub judice declined to suppress the blood

      draw on the basis that Trooper Holloway had the "intent to arrest"

      appellant and that there had been a "constructive seizure" of appellant.

      Judgment Entry at 4.      The transcript of the suppression reveals that

      Holloway himself recalled that he had repeatedly told appellant at the
Delaware County, Case No. 15 CAA 01 0010                                             7


     emergency room that he was "free to go." Ultimately, however, Holloway

     recalled the following interaction with appellant:

             "A. I asked him if he understood his Miranda rights again. Did you

     understand those? He advised he did. I advised him that he was free to

     go. I advised him he was under arrest, but he is not going to be under a

     custodial arrest. I'm not going to physically place him under arrest at the

     hospital and handcuff him and take him out. He's - - I read him the BMV

     2255.    He advised he understood the consequences of the test and

     refusal of it. I asked him to submit to a blood test.

             "Q. And did he agree to do so?

             "A. Yes, ma'am, he did." Tr. at 53.

             In Ohio, the General Assembly has established the statutory

     prerequisite of an actual arrest for a warrantless blood draw in OVI cases.

     Although the trooper’s complete colloquy with appellant at the hospital fell

     short of being unequivocal, we find the State's action in obtaining

     appellant's blood sample after the constructive arrest comported with R.C.

     4511.191(A)(2) and was reasonable under the Fourth Amendment. The

     trial court therefore correctly decided the ultimate issue raised in

     appellant's motion to suppress.

             We hold the trial court did not err in denying the motion to suppress

     under the facts and circumstances of this case.
Delaware County, Case No. 15 CAA 01 0010                                                  8

       {¶13} We find the May opinion to be consistent with Judge Hoffman's dissent in

Kirschner.

       {¶14} In the case sub judice, Trooper Elliott testified she administered the HGN

test to appellee and found six clues of impairment. T. at 78, 80-81. Trooper Elliott then

read appellee her Miranda rights and the BMV 2255 implied consent form which

specifically states on the first line, " 'You are now under arrest for***operating a vehicle

under the influence***.' " T. at 81, 93; State's Exhibit 4A. Trooper Elliott stated she

placed appellee under arrest. T. at 81. Appellee consented to the blood draw and

signed the form. T. at 81-82. Trooper Elliott explained appellee was under arrest at the

time, but "obviously she couldn't go with me because she was in the hospital." T. at 89.

Trooper Elliott stated aside from reading the form to appellee, she told her "there would

be charges pending later on." T. at 91.

       {¶15} The nurse present in appellant's room testified that the trooper spoke to

appellee about her rights and the consent to draw blood. T. at 20. The nurse observed

the trooper hand appellee a form and observed appellee sign it. Id.

       {¶16} As for appellant's challenge to the facts found by the trial court, we find the

record supports the trial court's findings. However, in its judgment entry, the trial court

did not consider or discuss the relative impact of the "you are under arrest" language

included in the first line of the BMV 2255 form. Instead, the trial court relied on the lack

of evidence as to why appellee was not physically secured, cited, and placed in jail.

Although the trial court relied on the absence of such evidence, the trial court

disregarded the failure to discuss appellee's condition at the Westerville Emergency

Care Center, other than to note that appellee "was in a typical hospital room sitting up
Delaware County, Case No. 15 CAA 01 0010                                                  9


on the bed" and "the Trooper admits that the Defendant had no significant medical

issues or injuries and was released shortly after the blood draw." At the time of her

interaction with appellee at the care center, Trooper Elliott could not have known the full

extent of appellee's injuries or when she would be released, as she was in the process

of receiving medical care. Without evidence to support it, the trial court concluded

appellee was available to be arrested.

       {¶17} Despite the lack of evidence, the trial court granted the motion to suppress

by finding appellee was not lawfully arrested for purposes of R.C. 4511.191(A)(2), cited

above. Therefore, the gravamen of this case is whether the language of the BMV 2255

form, coupled with the facts of this case, is sufficient to fulfill the requirements of R.C.

4511.191(A)(2). Given Trooper Elliott's testimony and the facts cited above, we find an

"intent to arrest" and the "constructive seizure" of appellant. Based upon our decision in

May, supra, we find the language contained in 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. See

also, State v. Hollis, 5th Dist. Richland No. 12CA34, 2013-Ohio-2586.

       {¶18} Upon review, we find the trial court erred in granting the motion to

suppress on the finding that appellee was not lawfully arrested.

       {¶19} The sole assignment of error is granted.
Delaware County, Case No. 15 CAA 01 0010                                       10


       {¶20} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby reversed, and the matter is remanded to said court for further proceedings

consistent with this opinion.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




SGF/sg 821
