[Cite as State v. Roar, 2014-Ohio-5214.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                                PIKE COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 13CA842
                               :
     vs.                       :
                               :    DECISION AND JUDGMENT
KYLE A. ROAR,                  :    ENTRY
                               :
    Defendant-Appellant.       :    Released: 11/18/14
_____________________________________________________________
                         APPEARANCES:

James T. Boulger, Chillicothe, Ohio, for Appellant.

Robert Junk, Pike County Prosecuting Attorney, Waverly, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Kyle A. Roar appeals his convictions in the Court of Common

Pleas, Pike County, Ohio, in violation of R.C. 2903.06 (A)(1)(a), aggravated

vehicular homicide, a felony of the second degree, and two violations of

R.C. 2903.08(A)(1)(a), aggravated vehicular assault, felonies of the third

degree. Roar raises four assignments of error, which are interrelated to the

taking of his blood subsequent to a fatal car crash and the denial of his

motion to suppress the blood test results. After reviewing the record, we
Pike App. No. 13CA842                                                          2


overrule Appellant’s assignments of error and affirm the judgment of the

trial court.

                                   FACTS

       {¶2} After midnight on September 8, 2012, Kyle Roar, Appellant, was

operating a motor vehicle near the intersection of Route 23 and Route 32 in

Pike County. Appellant had three passengers in his vehicle. Alicia

Vanhoose was a front seat passenger, and both Anthony Wooldridge and

Jessica Smallwood were riding in the back seat. When Appellant attempted

to make a left turn onto Route 32 and failed to yield to an oncoming pickup

truck, he collided with the pickup truck. The impact took place on the

passenger side of Appellant’s vehicle and resulted in the death of Alicia

Vanhoose. Appellant and the others were also injured and were transported

to the Pike Community Hospital.

       {¶3} While Appellant was in the hospital emergency room, Trooper

Samuel Davis of the Ohio State Highway Patrol made contact with him for

approximately 30 minutes. Trooper Davis read Appellant his Miranda rights

and took a statement from him. Trooper Davis also obtained a sample of

Appellant’s blood. Trooper Davis did not arrest Appellant and did not issue

him a citation on that date. A report of the laboratory analysis of

Appellant’s blood later revealed an alcohol level below the specified limits
Pike App. No. 13CA842                                                                                     3


and a marijuana metabolite level above the limit set forth in R.C.

4511.19(A)(1)(j)(8)(ii).

        {¶4} Appellant was indicted on February 12, 2013, of two counts of

aggravated vehicular homicide and four counts of aggravated vehicular

assault. Appellant pled not guilty to all counts. Appellant subsequently

filed a motion to suppress, alleging that the blood specimen obtained while

he was a patient at the hospital was taken without a warrant and without

probable cause in violation of the Fourth and Fourteenth Amendments to the

United States Constitution and the statutory procedures set forth in R.C.

4511.19, 4511.191 and 4511.192. At the oral motion hearing, Trooper

Davis was the only witness. The pertinent details of his testimony will be

set forth below, where relevant.

        {¶5} At the conclusion of the suppression hearing, the trial court

requested written arguments.1 The parties filed briefs on the issue. On

July 19, 2013, the trial court denied Appellant’s motion to suppress.

         {¶6} On October 7, 2013, Appellant withdrew his plea of not

guilty, and entered pleas of no contest to counts one, three, and five of

1
  The trial court made reference to the then-recently published decision of the United States Supreme Court
in Missouri v. McNeely, 133 S. Ct. 1552, Mo. 2013. The court specifically requested the parties address in
their arguments:

        “…the issue of the effect of reading the 2255 to a person, advising he was under arrest
        and the consequences of refusal if he’s not in custody, uh, and what that effect, if any, has
        on the consensual nature of the taking of the blood test.”
Pike App. No. 13CA842                                                     4


the indictment. The parties stipulated the violation of R.C. 4511.19(A)

was based upon Appellant’s operation of a motor vehicle with a

concentration of marijuana metabolite of 76.19 ng/ml in his whole

blood, that being a violation of the specific subsection of R.C.

4511.19(A)(1)(j)(8)(ii). The aggravated vehicular assault charges in

counts three and five were also stipulated to be based upon the same

R.C. 4511.19(A) violation contained in count one.

      {¶7} The trial court accepted Appellant’s pleas and sentenced him

to a prison term of four years on count one, with two years of that

sentence to be served as a mandatory term of imprisonment. The court

also imposed a lifetime driver’s license suspension on count one. As to

counts three and five, the trial court imposed terms of imprisonment of

thirty-six months to be served concurrent with each other and

concurrent to the sentence on count one, for an aggregate prison term of

four years. The judgment entry of sentence contained a dismissal of

counts two, four, and six of the indictment.

      {¶8} This timely appeal followed.
Pike App. No. 13CA842                                                             5


                           ASSIGNMENTS OF ERROR

I.     THE TRIAL COURT’S FINDING THAT THE DEFENDANT
       VOLUNTARILY CONSENTED TO THE BLOOD DRAW WAS
       NOT SUPPORTED BY COMPETENT CREDIBLE EVIDENCE
       AND CONSTITUTED A MISAPPLICATION OF THE CLEAR
       AND CONVINCING EVIDENCE STANDARD TO SUCH A
       DETERMINATION.

II.    THE TRIAL COURT’S FINDING THAT THE SEIZING OFFICER
       HAD PROBABLE CAUSE TO BELIEVE THE DEFENDANT’S
       BLOOD WOULD CONTAIN EVIDENCE OF A CRIME WAS NOT
       SUPPORTED BY COMPETENT CREDIBLE EVIDENCE.

III.   THE TRIAL COURT ERRED AS A MATTER OF LAW IN
       EQUATING PROBABLE CAUSE TO BELIEVE A PERSON’S
       BLOOD SPECIMEN WOULD CONTAIN ALCOHOL AND/OR
       DRUGS WITH PROBABLE CAUSE TO BELIEVE THE PERSON
       WAS UNDER THE INFLUENCE OF ALCOHOL AND/OR
       DRUGS.

IV.    THE TRIAL COURT’S FINDING THAT THE STATE HAD
       PROVEN AN EXIGENT CIRCUMSTANCE EXCEPTION TO THE
       WARRANT REQUIREMENT FOR THE TAKING OF A
       SPECIMEN OF THE DEFENDANT’S BLOOD WAS NOT
       SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE.

                        A. STANDARD OF REVIEW

       {¶9} Appellate review of a decision and judgment on a motion to

suppress evidence involves mixed questions of law and fact. State v. Brooks,

4th Dist. Athens No. 2014-Ohio-3343, ¶ 9, citing State v. Grubb, 186 Ohio

App.3d 744, 2010-Ohio-1265, 930 N.E.2d 380, at ¶ 12 (3rd Dist.); State v.

Book, 165 Ohio App.3d 511, 2006-Ohio-1102, 847 N.E.2d 52, at ¶ 9 (4th

Dist.). In hearing such motions, a trial court assumes the role of the trier of
Pike App. No. 13CA842                                                                6


fact and is best situated to resolve factual disputes and to evaluate witness

credibility. Brooks, supra, citing State v. Roberts, 110 Ohio St.3d 71, 2006-

Ohio-3665, 850 N.E.2d 1168, at ¶ 100; State v. Burnside, 100 Ohio St.3d

152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8.

      {¶10} Appellate courts will accept a trial court’s factual findings if

competent, credible evidence exists to support those findings. Brooks, supra,

at ¶ 10, citing State v. Little, 183 Ohio App.3d 680, 2009-Ohio-4403, 918

N.E.2d 230, at ¶ 15 (2nd Dist.); State v. Metcalf, 11 Ohio App.3d 142, 145,

675 N.E.2d 1268 (4th Dist. 1996). However, appellate courts review de

novo a trial court’s application of law to those facts. Brooks, supra, citing

State v. Higgins, 183 Ohio App.3d 465, 2009-Ohio-3979, 917 N.E.2d 363, at

¶ 14 (5th Dist.); State v. Poole, 185 Ohio App.3d 38, 2009-Ohio-5634, 923

N.E.2d 167, at ¶ 18 (11th Dist.) In other words, an appellate court affords no

deference to a trial court in its application of the law to the facts of the case.

Brooks, supra.

                            B. LEGAL ANALYSIS

      {¶11} In this case, Appellant’s four assignments of error are

interrelated to the denial of his motion to suppress. Appellant’s brief

properly set forth the assignments of error, pursuant to Appellate Rules 12

and 16. We choose to address them jointly and begin with the second
Pike App. No. 13CA842                                                          7


assignment of error, raised by Appellant, relating to the probable cause

determination made by Trooper Davis and the trial court.

     1. Did the trooper have probable cause to believe Appellant’s blood
would contain evidence of a crime?

      {¶12} The Fourth Amendment to the United States Constitution

protects individuals against unreasonable governmental searches and

seizures. See, e. g., Delaware v. Prouse, 440 U.S. 648, 662, 99 S.Ct. 1391,

1400 (1979). “[S]earches conducted outside the judicial process, without

prior approval by judge or magistrate, are, per se unreasonable under the

Fourth Amendment-subject only to a few specifically established and well-

delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.

507 (1967); State v. Riley, 4th Dist. No. 00CA044, 2001-Ohio 2487, 2001

WL 688540 (June 12, 2001).

      {¶13} Probable cause only requires the existence of circumstances

that warrant suspicion. State v. Smith, 4th Dist. Highland No. 09CA29,

2010-Ohio-4507, ¶ 84, citing State v. Young, 146 Ohio App.3d 245, 254,

765 N.E.2d 938. Thus, “the standard for probable cause requires only a

showing that a probability of criminal activity exists, not a prima facie

showing of criminal activity.” Smith, supra. Furthermore, courts view the

totality of the circumstances in making probable cause determinations. State

v. Russell, 9th Dist. Summit No. 26819, 2013-Ohio-4895, ¶ 8, citing Illinois
Pike App. No. 13CA842                                                          8


v. Gates, 462 U.S. 213, 238 (1983). In analyzing whether officers had

probable cause to proceed, reviewing courts will look to the totality of the

circumstances as they existed at the time of the incident. State v. Shinholster,

9th Dist. Summit No. 25328, 2011-Ohio- 2244, at ¶ 8, citing Gates, supra, at

233.

       {¶14} Based upon our review of the record, we find Trooper Davis

had probable cause to believe Appellant’s blood would contain evidence of a

crime. Trooper Davis testified that he received information through radio

contact with two other troopers that there was a “serious injury crash with

one fatality.” He testified two vehicles were involved and there was

believed to be “foul play” because of containers of alcohol found in one

vehicle. Trooper Davis testified he previously worked with the informing

troopers and they had provided him reliable information in the past. Trooper

Davis explained the highway patrol’s policy of obtaining either “blood or

some other sort of specimen” from each driver involved in a fatal car

accident or an accident causing serious physical injury. Trooper Davis

acknowledged he was dispatched to the hospital for the express purpose of

making contact with Appellant, taking his statement, and collecting a blood

sample.
Pike App. No. 13CA842                                                        9


      {¶15} Trooper Davis further testified when he arrived at Pike

Community Hospital, he first checked the medical status of all involved in

the crash. Appellant’s passengers were unconscious, so the trooper made

contact only with Appellant. Appellant was in the emergency room,

strapped to a backboard in a supine position, and his head was immobilized.

He was awaiting treatment, conscious, and responsive to questioning.

Trooper Davis did not know the nature of Appellant’s injuries, nor did he

know if Appellant had experienced head trauma or loss of consciousness.

      {¶16} Trooper Davis first gave him the Miranda warnings and

clarified with Appellant that he understood them. There was no evidence of

abnormal speech or difficulty with comprehension. Appellant gave a

statement to the trooper, which the trooper transcribed. Appellant denied

consumption of alcohol or drugs of abuse.

      {¶17} Trooper Davis described Appellant’s demeanor as “very

lethargic,” and he did not show much emotion. The trooper did not observe

any visible injuries. The trooper noted no odor of alcohol on Appellant’s

person.

      {¶18} Trooper Davis also testified he had training through the Ohio

State Highway Patrol Academy on detection of impaired drivers, as well as

advanced roadside drug detection for impaired drivers. He was trained at the
Pike App. No. 13CA842                                                        10


Academy regarding the horizontal gaze nystagmus (HGN) test, certified to

perform the test, and had taken refresher courses. He acknowledged being

instructed that head trauma can affect the results of an HGN test. Trooper

Davis observed Appellant’s glassy eyes. Although he did not detect the odor

of an alcoholic beverage or the extent of Appellant’s injuries, Trooper Davis

performed the test on Appellant by leaning over top of him as Appellant

reclined on the backboard. He observed six clues which indicated alcohol

consumption and other impairment factors.

      {¶19} Trooper Davis also testified he had never been trained to give

the HGN test to a person in a reclining position. On cross-examination, he

acknowledged he never went to the scene of the accident or saw the vehicles

involved in the accident. He was unaware as to whether or not Appellant

had suffered a loss of consciousness, a concussion, or the extent of any head

trauma. He was advised by medical staff, however, that Appellant had not

been medicated by them. Trooper Davis did not recall Appellant being

hooked up to any lines or IV needles.

      {¶20} Trooper Davis also read the “Consequences of Test and

Refusal” portion contained on the BMV 2255 form. Following the reading

of the form, Trooper Davis asked Appellant if he would consent to a blood

draw. Appellant consented.
Pike App. No. 13CA842                                                         11


      {¶21} Based upon the testimony, we conclude there was probable

cause for Trooper Davis to believe Appellant’s blood would contain

evidence of a crime. Under a “totality of the circumstances analysis,”

Trooper Davis had reliable information from other officers at the accident

scene that a fatal two-car collision had occurred and containers of alcohol

were found in one of the cars. When Trooper Davis arrived at the hospital,

he spent approximately 30 minutes in contact with Appellant, during that

time, observing Appellant was “very lethargic” and his eyes were “glassy.”

Trooper Davis conducted the HGN test and detected six clues of

impairment. Despite the trooper’s testimony that he did not detect the odor

of an alcoholic beverage upon Appellant, and despite Appellant’s denial of

alcohol use, the trooper opined that Appellant was impaired as a result of the

use of alcohol and/or drugs. The existing circumstances known to Trooper

Davis at the time he contacted Appellant warranted suspicion that

Appellant’s blood would contain evidence of a crime, operating a motor

vehicle under the influence of alcohol and/or drugs. Applying the law to the

facts, we find Trooper Davis had probable cause to believe Appellant’s

blood would contain evidence of a crime. As such, we overrule Appellant’s

second assignment of error.

      2. Did the State prove an exigent circumstance exception to the
warrant requirement for the taking of Appellant’s blood?
Pike App. No. 13CA842                                                                                   12



      3. Did the trial court equate probable cause to believe a person’s
blood specimen would contain alcohol and/or drugs with probable cause to
believe the person was under the influence of alcohol and/or drugs?

        {¶22} Appellant argues there was no evidence of exigent

circumstances to support the trial court’s finding that said circumstances

justified the drawing of his blood without a warrant. The determination of

whether exigent circumstances exist requires examination of the factual

circumstances of each particular case. State v. Berg, 9th Dist. Summit No.

26953, 2014-Ohio-2745, ¶ 12, citing Missouri v. McNeely, 133 S.Ct. 1552,

1559 (Mo. 2013). Appellant also argues Trooper Davis’s observation of him

provides, at best, a marginal basis with respect to reasonable suspicion to

conduct field sobriety testing, but does not supply probable cause to believe

he was under the influence of alcohol and/or drugs.2

        {¶23} In Schmerber v. California, 364 U.S. 757, 86 S.Ct. 1826.

(1966), the petitioner challenged his conviction for driving while intoxicated

upon the basis that the warrantless seizure of his blood, over his objection,

violated his Fourth Amendment rights. Although rejecting his claim, the

Supreme Court held that a warrantless search that intruded into the human

body was not justifiable as a search incident to a lawful arrest. But the

2
  Appellant acknowledges the issue of reasonable suspicion to conduct field sobriety testing was not raised
in his motion to suppress because the administration of an HGN test was not discovered until the day of the
suppression hearing, when the BMV 2255 form was produced subsequent to a defense subpoena duces
tecum.
Pike App. No. 13CA842                                                          13


warrantless seizure could be justified, the Court held, based upon the

“evanescent nature” of the evidence - the fact that the level of alcohol in

blood decreased with the passage of time. Id., at 779. Because of the

fleeting nature of the evidence, the time necessary to obtain a warrant, and

the prior establishment of probable cause to justify an arrest, the Court

upheld the warrantless seizure of the petitioner’s blood as reasonable under

the Fourth Amendment. Although there was an arrest in Schmerber, the

Court did not make its holding dependent upon the fact that the defendant

had been arrested, only that there was probable cause for the DUI arrest.

(Emphasis added.) See, State v. King, 1st Dist. Hamilton No.C-010778,

2003-Ohio-1541, at ¶ 26. “[T]here now appears to be universal agreement

among the courts that have addressed the question that an arrest is not

integral to the Schmerber holding and, consequently, that a warrantless

extraction of blood from a driver lawfully suspected of DUI, does not violate

the [F]ourth [A]mendment even in the absence of an arrest or actual

consent.” King, supra, at ¶ 26, quoting State v. Entrekin, 98 Hawaii 221,

230, 47 P.3d.336 (2002); see, also, State v. Murray, 271 Kan.223, 228-232,

21 P.3d 528 (2001).

      {¶24} In King, the defendant was convicted of aggravated vehicular

homicide and vehicular homicide following a jury trial. King was involved
Pike App. No. 13CA842                                                        14


in an accident around 3:00a.m. on the Columbia Parkway when he lost

control of his vehicle, crossed the center line, and crashed into another

vehicle. One of the Cincinnati police officers arriving at the scene could

smell the odor of alcohol on King and informed another officer. King was

transported by ambulance. The second officer was dispatched to the hospital

to obtain a sample of King’s blood. The officer testified King was wearing a

neck brace with tubes extruding from his mouth or nose, but King was able

to write down his telephone number. The officer’s impression was that

King, despite his physical condition, was alert and his mental faculties were

intact. A nurse also testified although King had received narcotic pain

medication she still considered him fully oriented to time and place. The

officer admitted his purpose was not to place King under arrest. The officer

first read to King his Miranda rights and then recited the language from the

ALS form (BMV 2255). The officer testified he read to King the sentence

“You are now under arrest for operating a vehicle under the influence of

alcohol, a drug of abuse, or both alcohol and a drug of abuse.” After reading

additional language from the form, the officer asked King if he would

consent to a blood sample being drawn. King responded unintelligibly but

then the nurse interceded and, according to the testimony of the officer and

the nurse, King responded by clearly articulating approval. King did not
Pike App. No. 13CA842                                                            15


sign the form because his arms were strapped to a gurney. The blood sample

was later shown to be at the minimum prohibited level.

      {¶25} In King, the court held, regardless of the issues involving

consent and application of the Ohio implied-consent law, the seizure of

King’s blood by the police was justified under Schmerber given the

evanescent nature of the evidence and given that the police had probable

cause to arrest King for driving under the influence. The King court’s fact-

specific holding stated: “We hold that probable cause exists to arrest for

driving while under the influence when in the early morning hours a vehicle

clearly goes out of control, there is an accident, and the driver has the odor

of alcoholic beverages on his breath.”

      {¶26} In State v. Carr, 11th Dist. Lake No. 2012-L-001, 2013-Ohio-

737, the defendant appealed from decisions denying his motion to suppress

and finding him guilty of various traffic-related infractions including

aggravated vehicular assault and vehicular assault. Carr argued the evidence

taken from a blood draw should have been suppressed because he was not

under arrest at the time of the blood draw, did not consent to it, and certain

Ohio Administrative Code procedures were not followed in the drawing and

testing of his blood. The State argued that Carr was under arrest at the time

of the blood draw and even if he was not, a blood draw was proper under
Pike App. No. 13CA842                                                        16


Schmerber because there was probable cause to arrest Carr and exigent

circumstances required the taking of the blood sample in the absence of

consent. The appellate court held:

      “Pursuant to Schmerber, if there are exigent circumstances and
      ‘an officer has probable cause to arrest a driver for DUI, the
      result of an analysis of a blood sample taken over the driver’s
      objection and without consent is admissible in evidence, even if
      no warrant had been obtained.’ Id., at ¶ 42, quoting State v.
      Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d
      1056, ¶ 19, citing Schmerber, supra, at 770-771.” (Internal
      citations omitted.).

      {¶27} The Carr court found that exigent circumstances existed, but

went on to consider whether the trial court properly found that probable

cause existed to arrest Carr for an OVI, such that a blood draw was proper

under Schmerber. The Carr court noted:

      “Probable cause is defined as ‘a reasonable ground for belief of
      guilt.’ (Internal citations omitted.). Probable cause requires
      ‘more than bare suspicion: Probable cause exists where ‘the
      facts and circumstances within [the officers’] knowledge and of
      which they had reasonably trustworthy information
      [are]sufficient in themselves to warrant a man of reasonable
      caution in the belief that ‘an offense has been or is being
      committed.’ Brinegar v. United States, 338 U.S. 160, 175-176,
      69 S.Ct. 1302 (1949), quoting Carroll v. United States, 267
      U.S. 132, 162, 45 S.Ct. 280 (1925). A probable cause
      determination is based on the ‘totality’ of facts and
      circumstances within a police officer’s knowledge. State v.
      Miller, 1217 Ohio App.3d 750, 761, 691 N.E.2d 703 (11th Dist.
      1997). The odor of alcohol, glassy eyes, slurred speech, and
      other indicia of alcohol use by a driver are factors to be
      considered in determining the existence of probable cause for
      an OVI arrest. Kirtland Hills v. Deir, 11th Dist. No. 2004-L-
Pike App. No. 13CA842                                                        17


      005, 2005-Ohio-1563, ¶ 16. Testimony regarding a defendant’s
      erratic driving is also a factor to be considered. State v. Sitko,
      11th Dist. No. 2011-P-0042, 2012-Ohio-2705, ¶ 28.”

      {¶28} A police officer has probable cause for an arrest if the facts and

circumstances within his knowledge are sufficient to cause a reasonably

prudent person to believe that the defendant has committed the offense.

State v. Hollis, 5th Dist. Richland No. 12CA34, 2013-Ohio-2586, ¶ 28; State

v. Cummings, 5th Dist. No.2005-CA-00295, 2006-Ohio-2431, ¶ 15, citing

State v. Heston, 29 Ohio St.2d 152, 280 N.E.2d 376 (1972). When

evaluating probable cause to arrest for OVI, the totality of the facts and

circumstances can support a finding of probable cause to arrest even where

no field sobriety tests were administered. Hollis, supra; See State v. Homan,

89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000). Furthermore, a police

officer does not have to observe poor driving performance in order to effect

an arrest for driving under the influence of alcohol if all the facts and

circumstances lead to the conclusion that the driver was impaired. Hollis,

supra; See, State v. Harrop, 5th Dist. No. CT2000-0026 (July 2, 2001),

citing Atwell v. State, 35 Ohio App.2d 221, 301 N.E.2d 709 (8th Dist. 1973).

In Hollis, the appellate court went on to find the tragic facts and

circumstances of the case “replete” with probable cause for constructive

arrest for OVI. The Hollis court wrote:
Pike App. No. 13CA842                                                    18


     “The circumstances of the crash, which include appellant losing
     control and overturning the vehicle at a high rate of speed,
     combined with the alcoholic beverage containers scattered
     throughout the scene, plus the odor of an alcoholic beverage
     emanating from appellant’s person in the MedCentral E.R.,
     constitute probable cause.”

     {¶29} In the case sub judice, the trial court wrote:

     “The facts of the present action include a severe collision of
     two vehicles at approximately 1:36 AM on a Sunday morning,
     resulting in the death of one of the occupants in the Defendant’s
     vehicle and in the emergency medical treatment of the
     Defendant and two other occupants of the Defendant’s vehicle
     at the hospital. After arriving at the hospital and observing,
     interviewing and performing the HGN test on the Defendant,
     with the additional information that Tpr. Davis had obtained via
     the radio from the officers investigation at the scene of the
     collision, Tpr. Davis had probable cause to believe that a blood
     specimen from the Defendant would contain evidence of
     alcohol and/or drug impairment. The collision had occurred
     nearly an hour and a half earlier, however, and for Tpr. Davis to
     prepare an application and affidavit for a search warrant, in all
     likelihood having to contact a prosecuting attorney to help him
     do so, and then to draft a proposed search warrant for the
     judge’s signature, and then to locate a judge to issue the search
     warrant, all after 3:05 AM, when none of the officials involved
     are in their offices, would undoubtedly take a reasonably long
     period of time, even if these things could be accomplished at all
     in those early morning hours, during which time the evidence
     would be dissipating through elimination from the Defendant’s
     body. Further, there also existed the possibility that during any
     delay necessitated in order to obtain a search warrant, the
     defendant would be given medications at the hospital that
     would contaminate the results of the blood draw, or that the
     defendant might be released from the hospital and absent
     himself which the officer was contacting a prosecutor and/or
     attempting to prepare the application and supporting affidavit
     and thereafter contacting a judge to sign the search warrant.
Pike App. No. 13CA842                                                           19


      ***

      In the Court’s opinion, the exigent circumstances that presented
      themselves on the morning of September 9, 2012, justified the
      taking of the blood specimen without obtaining a search
      warrant. Missouri v. McNelly, supra.”

      {¶30} We agree with the trial court here that the drawing of

Appellant’s blood was justified due to the evanescent nature of the evidence

and because Trooper Davis had probable cause to arrest Appellant for

operating a motor vehicle under the influence of alcohol and/or drugs. Here

the trial court noted that the severe collision occurred in the early morning

hours, and resulted in a fatality. Although Trooper Davis did not observe the

accident or see the vehicles involved, he had reasonably reliable information

regarding the nature of the accident. Trooper Davis also had reasonably

reliable information that one of the vehicles involved in the accident had

containers of alcohol inside it. The trooper observed and interviewed

Appellant, noted glassy eyes, and performed an HGN test. Based on the

above, we find that Trooper Davis had probable cause to arrest Appellant for

operating a vehicle under the influence of alcohol and/or drugs. As such, we

overrule Appellant’s third assignment of error.

      {¶31} We also agree that based on the time of the collision, at

approximately 1:36 a.m., and that when Trooper Davis made his probable

cause determination, nearly an hour and a half later, the logistics of
Pike App. No. 13CA842                                                           20


preparing an application for a search warrant, possibly having to contact a

prosecutor to assist, drafting it, and then locating and obtaining a judge’s

signature, would undoubtedly take a reasonably long period of time. We

agree with the trial court that during this long period of time, the evidence

would be dissipating from Appellant’s body. As such, we find the trial court

did not err in finding that the exigent circumstances justified the taking of

Appellant’s blood without a search warrant. We overrule this assignment of

error and affirm the judgment of the trial court.

      4. Was Appellant’s consent voluntary?

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

that person’s privacy. State v. Rawnsley, 2nd Dist. Montgomery No. 24594,

2011-Ohio-5696, ¶ 15. Unlike other searches, it involves the actual invasion

of the person’s body. Id. Appellant contends that the trial court erroneously

found clear and convincing evidence that his consent was voluntary, as

Appellant purportedly gave consent while he was strapped to a backboard at

the hospital, awaiting treatment for trauma. Appellant argues there is virtual

unanimity among Ohio appellate courts that, absent a valid arrest, a

recitation of implied consent warnings (by way of reading the BMV 2255

form which indicates a civil sanction) is inherently coercive and precludes a

finding that subsequent consent to the taking of a specimen of bodily fluid is
Pike App. No. 13CA842                                                                                 21


voluntary.3 Appellant concludes, based upon the reading of the BMV 2255

to him, along with his physical state at the time of the interaction with

Trooper Davis, express coercion was directly tied to the refusal to consent.

        {¶33} In Rawnsley, the defendant was involved in a two-vehicle crash

and transported to the Miami Valley Hospital. A trooper followed the

ambulance to the hospital in order to secure a blood draw. The trooper,

upon entering defendant’s room, read to her in verbatim fashion, the BMV

2255 form mandated to be read to an individual arrested for an OVI offense

before the individual is requested to submit to a blood alcohol test. The

defendant, upon being read the form, agreed to the blood draw. Later, the

trooper candidly stated at the suppression hearing that he at no time

considered contacting a judge in order to present a probable cause affidavit

in an attempt to secure a search warrant authorizing the taking of the blood

test. The appellate court noted also, in reality, when defendant was read the

BMV 2255 form language, she was not under arrest.

        {¶34} Rawnsley was later charged by indictment with aggravated

vehicular assault while under the influence. She filed a motion to suppress

which the trial court granted. On appeal, the court went to great lengths
33
  See State v. Whitt, 5th Dist. Licking No. 10-CA-3, 2010-Ohio-3761; State v. Kirchner, 5th Dist. Stark
No. 2001 CA 00107, 2001-Ohio-1915; State v. Rice, 129 Ohio App.3d 9, 717 N.E.2d 351 (7th Dist. 1998);
State v. Bachmayer, 6th Dist. Lucas Nos. L-02-1034, L-02-1017, 2002-Ohio-5904; State v. Rawnsley, 2nd
Dist. Montgomery No. 24594, 2011-Ohio-5696; State v. Vickers, 1983 WL 4241 (9th Dist. 1983); State v.
Gottfrield, 86 Ohio App.3d 106, 619 N.E.2d 1185 (6th Dist.1993); and State v. Szalai, 113 Ohio Misc.2d 6,
(Ashtabula CP. 1983) (superseded by statute as stated in Gottfried, supra, at ¶ 5.)
Pike App. No. 13CA842                                                                                      22


discussing the implied consent codified in R .C. 4511.191, which has been

held not to violate the limitations against unreasonable searches and seizures

set forth in the Ohio and United States constitutions. Rawnsley, supra, at

¶ 16, citing State v. Hoover, 123 Ohio St.3d 41, 2009-Ohio-4993, ¶ 17-18.4

The court reiterated that, 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

of no constitutional significance, and would not support the application of

the exclusionary rule to suppress the evidence obtained. Id. at ¶ 16.

However, the second district court noted the implied consent statute did not,

by its terms, apply to the case in Rawnsley.

         “Had Rawnsley been arrested, it would not be 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 [the trooper’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.”

         {¶35} The State argued no warrant was required for the blood draw


4
  The implied consent statute 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). This statute has been amended by the 130th
General Assembly, effective 9/15/14. The pertinent language here is the same as the version in effect at the
time of the Rawnsley decision.
Pike App. No. 13CA842                                                          23


because Rawnsley affirmatively consented to it, independent of any implied

consent statute. However, the appellate court agreed that her consent did not

constitute a knowing and intelligent waiver of her Fourth Amendment right

not to be subjected to a warrantless search, because she was told by the

trooper that her refusal to submit to the test would subject her to the

immediate suspension of her license, when this 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.”

Rawnsley, supra, at ¶ 20. Compare, State v. Taggart, 4th Dist. Washington

No. 86CA21, 1987 WL 15982 (citing Schmerber to support the proposition

that probable cause to arrest negated consent to test. However, in Taggart

we noted Schmerber is limited to situations where a search is an

“appropriate incident to petitioner’s arrest.”)

      {¶36} In King, supra, the appellate court also considered that the

defendant was told, pursuant to the language read to him from the ALS

form, that he was under arrest and that he had to submit to the test or violate

the law. The form was read to him at a time when King was lying on a

gurney, wearing a neck brace, with tubes extruding from his mouth or nose.
Pike App. No. 13CA842                                                        24


He had also received narcotic pain medication. The King court wrote

“Under such circumstances, it is difficult to imagine that the consent he gave

was voluntary.”

      {¶37} Here, Appellant purportedly gave consent under circumstances

which indicate he was strapped to a backboard, his head immobilized, and

subsequent to a traumatic vehicular crash experience. He was also advised

he was under arrest when, in fact, Trooper Davis had no intention of

arresting Appellant. The issue of the voluntariness of Appellant’s consent

given under these circumstances is moot, however, based on our having

found that there was probable cause to arrest Appellant and that exigent

circumstances existed which justified the taking of his blood sample. As

such, we decline to address this assignment of error and it is hereby

overruled.

                               CONCLUSION

      {¶38} Based upon the above, we find the trial court did not err by

overruling Appellant’s motion to suppress. We find there was probable

cause and exigent circumstances present in this case which justified the

taking of Appellant’s blood without a warrant. As such, we have overruled

the assignments of error and affirm the judgment of the trial court.

                                                JUDGMENT AFFIRMED.
Pike App. No. 13CA842                                                            25


                            JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Pike County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment and Opinion.
Hoover, J.: Concurs in Judgment Only.

                                  For the Court,

                           BY: ___________________________________
                               Matthew W. McFarland, Judge


                              NOTICE TO COUNSEL
        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
