[Cite as State v. Morris, 2012-Ohio-3210.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 11 CA 106
BRIAN T. MORRIS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 10 CR 389


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        July 12 2012



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHRISTOPHER A. REAMER                          DUSTIN M. BLAKE
ASSISTANT PROSECUTOR                           338 South High Street
20 South Second Street, 4th Floor              Columbus, Ohio 43215
Newark, Ohio 43055
Licking County, Case No. 11 CA 106                                                       2

Wise, J.

       {¶1}    Defendant-Appellant Brian T. Morris appeals the decision of the Licking

County Common Pleas Court denying his motion to suppress evidence.

       {¶2}    Plaintiff-Appellee is the State of Ohio.

                          STATEMENT OF THE CASE AND FACTS

       {¶3}    At 12:57 a.m. on May 1, 2010, Deputy Randy Morton of the Licking

County Sheriff’s Office received a dispatch regarding an intoxicated person who refused

to leave a property. (T. at 77). Deputy Morton arrived at the complainant address and

was advised that the intoxicated person had left in a silver Chevrolet Cavalier. (T. at 77-

79). Deputy Morton began taking a witness statement when he observed the silver

vehicle come toward the residence and then turn and leave. (T. at 77-79). Deputy

Morton then returned to his cruiser, located the vehicle and observed the driver park the

vehicle in a nearby driveway and run into a field. (T. at 79-80). He then observed the

driver of the car lying in the field. Id.

       {¶4}    The driver of the car, Appellant Brian T. Morris, was arrested and taken to

Licking Memorial Hospital, where Deputy Morton obtained a search warrant for his

blood or urine. Deputy Morton provided a blood or urine collection kit to hospital staff

collecting the blood samples. (T. at 75). Phlebotomist Mindy Jo Crouse drew the blood

and confirmed she had used the test kit/vials provided by Deputy Morton. (T. at 13.)

Both Crouse and Morton were present and verified the blood draw took place at 4:03

a.m. (T. at 18, 84).

       {¶5}    The test kit/blood was then taken by Deputy Morton and placed in a

locked evidence refrigerator prior to 6:00 a.m. on May 1st. (T. at 85, 91). Deputy Morton
Licking County, Case No. 11 CA 106                                                        3


confirmed either one of two evidence technicians at the Licking County Sheriff's Office

would have then removed and mailed the sample to the Ohio State Patrol laboratory. (T.

at 98).

          {¶6}   Appellant’s blood was later mailed from the Licking County Sheriff’s Office

and received by the Ohio State Patrol laboratory. Mark Hiatt, with the laboratory,

confirmed documentation showed the kit had been received by the laboratory on May 4,

2010, at 12:54 p.m. (T. at 46).

          {¶7}   Hiatt confirmed that policy/procedure of the laboratory was that any

sample be placed in refrigeration upon receipt. (T. at 46). Hiatt confirmed that he

personally pulled the sample from refrigeration prior to testing and that he observed

nothing abnormal about the blood. (T. at 46-48).

          {¶8}   Hiatt determined that the blood alcohol content of Appellant on May 1,

2010, to be .169 by weight per unit volume of whole blood. (T. at 39).

          {¶9}   Appellant was later indicted by the Licking County grand jury on third-

degree felony driving under the influence, in violation of R.C. §4511.19(A)(1)(a) and/or

(A)(1)(b) and (G)(1)(e)(i) and an attached specification under R.C. §2941.1413 and one

misdemeanor count of driving under suspension in violation of R.C. §4510.11(A).

          {¶10} Appellant filed a motion to suppress, claiming that law enforcement

authorities failed to administer the chemical blood test in compliance with R.C.

§4511.19, §4511.19, and Chapter 3701-53 of the Ohio Administrative Code, thereby

depriving Appellant of due process of law as guaranteed by the federal and state

constitution.

          {¶11} Following a hearing, the trial court denied Appellant's motion.
Licking County, Case No. 11 CA 106                                                     4


       {¶12} Appellant changed his plea to no contest and was found guilty on the

felony count of driving under the influence of alcohol in violation of R.C.

§4511.19(A)(1)(a) and/or (A)(1)(b) and (G)(1)(e)(i), with an OVI Specification pursuant

to R.C. §2941.1413. The State of Ohio dismissed the misdemeanor count of driving

under suspension in violation of R.C. §4510.11(A). There was a joint recommendation

for 4 years.

       {¶13} Thereafter, Appellant was sentenced to four (4) years, specifically three

(3) years on the felony driving under the influence of alcohol and one (1) year on the

OVI Specification, with the sentences ordered to run consecutively.

       {¶14} Appellant now appeals, assigning the following errors for review:

                             ASSIGNMENTS OF ERROR

       {¶15} “I.   THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION

TO SUPPRESS THE BLOOD-ALCOHOL TEST RESULTS AS APPELLEE FAILED TO

DEMONSTRATE SUBSTANTIAL COMPLIANCE WITH THE DEPARTMENT OF

HEATH [SIC] REGULATIONS.

       {¶16} “II. THE TRIAL COURT ERRED IN DENYING APPELLANTS MOTION TO

SUPPRESS, AS THE BLOOD-ALCOHOL TEST WAS NOT CONDUCTED WITHIN

THREE HOURS OF APPELLANT'S OPERATION OF HIS VEHICLE.”

                                          I., II.

       {¶17} In Appellant’s assignments of error, Appellant argues that the trial court

erred in denying his motion to suppress the blood-alcohol test results in this matter. We

disagree.
Licking County, Case No. 11 CA 106                                                       5


       {¶18} 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, (1982) 1 Ohio St.3d 19; State v. Klein, (1991) 73 Ohio App.3d 486. 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, (1994) 95 Ohio App.3d 93.

       {¶19} Here, Appellant argues the trial court incorrectly determined the ultimate

issue raised in the motion to suppress, to wit, whether the State of Ohio substantially

complied with the department of Health Regulations with regard to the blood sample

collected in this matter.

       {¶20} Specifically, in this case, Appellant argues that the State failed to

demonstrate the appropriate chain of custody, that a solid anticoagulant was used,

and/or that the sample was refrigerated while in transit or under examination. Upon

review, we find this argument not well-taken.

       {¶21} The results of an alcohol content test administered pursuant to R.C.

§4511.19 may be admitted into evidence upon a showing that the test was administered

in accordance with ODH regulations. R.C. §4511.19(D)(1)(b). In regards to the
Licking County, Case No. 11 CA 106                                                      6


collection and handling of urine specimens, ODH promulgated OAC 3701–53–05(F)

which states that “while not in transit or under examination, all blood and urine

specimens shall be refrigerated.” Without a showing of prejudice to a defendant, the

results of a blood or urine test administered in substantial compliance with OAC 3701–

53–05 are admissible in a prosecution under R.C. 4511.19. State v. Plummer, 22 Ohio

St.3d 292 (1986), at syllabus.

       {¶22} In State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, ¶ 34, the Ohio

Supreme Court limited “the substantial compliance standard set forth in Plummer to

excusing only errors that are clearly de minimis. Consistent with this limitation, we have

characterized those errors that are excusable under the substantial compliance

standard as ‘minor procedural deviations'.” (Citation omitted.)

       {¶23} At the suppression hearing, testimony was presented that when Appellant

was arrested, he was taken to Licking Memorial Hospital where Deputy Morton obtained

a search warrant for his blood or urine. The blood/urine collection kit provided by Deputy

Morton was consistent with the testing kits provided by the Ohio State Patrol to hospital

staff collecting the blood samples. (T. at 75). The phlebotomist drew the blood and

confirmed she had used the test kit/vials provided by Deputy Morton. (T. at 13). Both

Deputy Morton and the phlebotomist were present during the blood draw and verified

that such took place at 4:03 a.m. (T. at 18, 84). The phlebotomist testified that she

inverted the tubes eight to ten times as she had been trained to do for the anti-

coagulant to mix with the blood in the kit tubes. (T. at 28, 29). Deputy Morton testified

that he then took the test kit with the blood sample and placed it in a locked evidence

refrigerator prior to 6:00 a.m. on May 1, 2010. (T. at 85, 91). Deputy Morton testified
Licking County, Case No. 11 CA 106                                                       7


that per procedure, either one of two evidence technicians at the Licking County

Sheriff's Office would have then removed and mailed the sample to the Ohio State

Patrol laboratory. (T. at 98). Appellant's blood was later mailed from the Licking County

Sheriff’s Office and received by the Ohio State Patrol laboratory. Mark Hiatt, with the

laboratory confirmed documentation showing that the kit was received by the laboratory

on May 4, 2010, at 12:54 p.m. (T. at 46). Hiatt confirmed that policy/procedure of the

laboratory was that any sample be placed in refrigeration upon receipt. (T. at 46). Hiatt

confirmed that he personally pulled the sample from refrigeration prior to testing and

that he observed nothing abnormal about the blood. (T. at 46-48).

      {¶24} In State v. Plummer, 22 Ohio St.3d 292 (1986), the Ohio Supreme Court

found no violation of OAC 3701–53–05(F) when a urine specimen went unrefrigerated

for a period of one hour and twenty-five minutes prior to mailing, and again went

unrefrigerated for a period of three to four hours after the specimen had been delivered

to the laboratory. See also, State v. Mayl, 106 Ohio St.3d 207, 2005–Ohio–4629, ¶ 50,

fn. 2 (concluding there was substantial compliance with OAC 3701–53–05(F) where

blood sample was not refrigerated for nearly one hour and 45 minutes); State v. Price,

11th Dist. No.2007–G–2785, 2008–Ohio–1134, ¶ 26 (holding that retention of a blood

specimen in an unrefrigerated state for six hours before mailing not a violation); State v.

Schell, 5th Dist. CA–7884, 1990 WL 83992 (June 18, 1990) (blood sample

unrefrigerated for five hours is within range of substantial compliance). But see, State v.

DeJohn, 5th Dist. No. 06–CA–16, 2007–Ohio–163, (finding that failure to refrigerate

urine sample for 17 hours while in possession of trooper before mailing was not a slight

delay or minor procedural deviation).
Licking County, Case No. 11 CA 106                                                       8


       {¶25} Based on the foregoing, we find that the State demonstrated substantial

compliance with OAC 3701–53–05(F) as, pursuant to Plummer and Mayl, supra, the

time periods where the sample was not refrigerated was still sufficient to constitute

substantial compliance. In addition, the time period the test sample was removed from

the refrigerator until the testing process was concluded, in this court's view, would

constitute “under examination” for purposes of the regulation.

       {¶26} Appellant also attacks the reliability of the blood test results because

Crouse did not know what type of anti-coagulant was in the preservative capsule, or if it

was sodium fluoride. However, OAC 3701–53–05 does not set forth, nor does Appellant

identify, any ODH requirement regarding sodium fluoride.

       {¶27} Appellant further argues that the blood-alcohol test was not performed

within three (3) hours of Appellant’s operation of his vehicle.

       {¶28} R.C. §4511.19(D)(1)(b) provides that the court may admit evidence as

shown by a chemical analysis of a bodily substance “withdrawn within three hours of the

time of the alleged violation.”

       {¶29} The rationale for this requirement is to have a sample closely related in

time as (circumstantial) evidence of the concentration at the time of operation. If the

sample is taken within that time, no expert testimony is required to relate back to the

time of operation. A later test may still be admissible with expert testimony to calculate,

by retrograde extrapolation, the concentration at the time of operation. Newark v. Lucas,

40 Ohio St.3d 100, 532 N.E.2d 130 (1988); State v. Hassler, 115 Ohio St.3d 322, 875

N.E.2d 46 (2007). The reason for the rule is the relevance and reliability of the chemical

test result.
Licking County, Case No. 11 CA 106                                                    9


      {¶30} In the instant case, the evidence and testimony in the record establish that

Deputy Morton was first dispatched at 12:57 a.m., arrived on the scene approximately

five (5) minutes later, observed Appellant’s vehicle not long after, and then saw

Appellant park and flee the vehicle at 1:23 a.m. The blood draw in this case occurred at

4:03 a.m., well within the three-hour window set forth in R.C. 4511.19(D)(1).

      {¶31} Based on the foregoing, we find Appellant’s assignments of error not well-

taken and overruled same.

      {¶32} For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is affirmed.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
JWW/d 0706
Licking County, Case No. 11 CA 106                                            10


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
BRIAN T. MORRIS                            :
                                           :
       Defendant-Appellant                 :         Case No. 11 CA 106




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

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
