[Cite as State v. Harris, 2019-Ohio-4402.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                    :

       Appellee,                                  :     CASE NO. CA2019-03-024

                                                  :             OPINION
    - vs -                                                      10/28/2019
                                                  :

JONATHAN PAUL HARRIS,                             :

       Appellant.                                 :




      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 18CR34222



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee

Ostrowski Law Firm Co., L.P.A., Andrea G. Ostrowski, 20 South Main Street, Springboro,
Ohio 45066, for appellant



        RINGLAND, J.

        {¶ 1} Appellant, Jonathan Paul Harris, appeals from his conviction in the Warren

County Court of Common Pleas for operating a motor vehicle while under the influence of

alcohol or drug of abuse. For the reasons outlined below, we affirm.

        {¶ 2} On April 25, 2018, a state trooper was dispatched to the scene of a single-

vehicle accident. At the scene, the trooper observed significant damage to the right side of
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the roadway, including a knocked-down mailbox, a gouge mark on the roadway, and a

severely damaged vehicle that was upright next to a tree. When the trooper arrived, Harris

was laying on a stretcher and paramedics were attending to him. At that time, the trooper

observed that Harris' pupils were dilated, his eyes were bloodshot and glassy, and Harris was

generally unresponsive. The paramedics then informed the trooper that Harris appeared to

be under the influence of drugs or alcohol. Due to the extent of the injuries, the paramedics

transferred Harris to the hospital shortly thereafter. Because the trooper estimated that his

investigation at the scene would be lengthy, he directed another officer to make contact with

Harris at the hospital. At that time, the trooper believed Harris was under the influence of

alcohol or drugs.

       {¶ 3} After Harris was removed from the scene, the trooper began his accident

investigation. As a result of his investigation, the trooper determined that the vehicle had

driven off the right side of the roadway and struck a mailbox and driveway culvert. Due to the

speed of the vehicle at the time it struck the culvert, the vehicle went airborne and

overturned. The vehicle then landed on its side and struck a utility pole. The trooper further

determined that, aside from Harris, there were no other occupants or passengers in the

vehicle at the time of the accident.

       {¶ 4} After completing his investigation at the scene, the trooper went to Bethesda

Arrow Springs hospital where Harris had been transported. When the trooper arrived, the

other officer was with Harris and taking his statement. At that point, the officer indicated he

could not understand Harris' writing or speech and that he had written a partial statement on

Harris' behalf. The officer then ceased the interview and the trooper introduced himself to

Harris and continued the investigation. According to the trooper, he was unaware of what

initial statements Harris had made to the second officer.

       {¶ 5} While speaking with Harris, the trooper noticed Harris was slurring his words,
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was unable to understand basic commands, had bloodshot glassy eyes, and his pupils were

dilated. Based upon the trooper's training and experience, he believed Harris was under the

influence. As a result of the initial investigation and Harris' condition, the trooper showed

Harris a copy of the BMV 2255 implied consent form ("implied consent form"), which he

proceeded to read to Harris. The trooper indicated that upon reading the implied consent

form to Harris, he explained to Harris that he was under arrest for his sixth "OVI", which was

a felony. At that point, the trooper asked Harris if he would provide a urine sample and

explained the potential consequences Harris could face if he refused to submit a sample.

Ultimately, Harris agreed to provide a sample and signed the implied consent form in the

trooper's presence. The trooper then obtained a urine sample, which he sealed and mailed

to the crime lab. After processing, it was determined that Harris had a concentration of .224

grams by weight of alcohol in his urine.

       {¶ 6} The trooper then continued his interview with Harris. At the conclusion of his

investigation, the trooper temporarily left the hospital to prepare a summons for the arrest.

Due to Harris' medical condition, the trooper did not physically place Harris under arrest at

that time, but advised Harris that he remained under arrest and was to stay in the building.

Upon returning five minutes later, the trooper discovered that Harris had been discharged

and had left the hospital. The trooper then "took off running through the hospital to see if [he]

could get ahold of [Harris]." After searching, the trooper discovered that Harris had jumped

into a pickup truck in the parking lot, which the trooper physically blocked from exiting. The

trooper then issued Harris the summons.

       {¶ 7} In June 2018, Harris was indicted for operation while under the influence of

alcohol or drug abuse in violation of R.C. 4511.19(A)(1) and 4511.19(A)(1)(e). Each count

had specifications that Harris had previously been convicted of or pleaded guilty to five or

more equivalent offenses within the last 20 years. Harris initially pleaded not guilty to the

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charges.

       {¶ 8} In August 2018, Harris filed a motion to suppress, wherein he argued that the

evidence obtained from the warrantless seizure and search of his urine, any statements he

made to the police, and any evidence obtained as a result of his warrantless arrest should be

suppressed. After a hearing, the trial court denied Harris' motion. Thereafter, Harris entered

a plea of no contest and was found guilty of the two offenses. Count two and its specification

merged with count one and its specification for sentencing purposes, and Harris was

sentenced to a total of two years in prison.

       {¶ 9} Harris now appeals, raising one assignment of error for our review.

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S MOTION

TO SUPPRESS.

       {¶ 12} Harris argues that his motion to suppress should have been granted because

he was not placed under arrest prior to being read the implied consent form.

       {¶ 13} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Burkhead, 12th Dist. Preble No. CA2008-11-022, 2009-Ohio-4466, ¶

7; State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion

to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in

order to resolve factual questions and evaluate witness credibility. State v. Eyer, 12th Dist.

Warren No. CA2007-06-071, 2008-Ohio-1193, ¶ 8. In turn, the appellate court must accept

the trial court's findings of fact so long as they are supported by competent, credible

evidence. State v. Lange, 12th Dist. Butler No. CA2007-09-232, 2008 Ohio 3595, ¶4; State

v. Bryson, 142 Ohio App.3d 397, 402 (12th Dist.2001). After accepting the trial court's

factual findings as true, the appellate court must then determine, as a matter of law, and

without deferring to the trial court's conclusions, whether the trial court applied the
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appropriate legal standard. State v. Forbes, 12th Dist. Preble No. CA2007-01-001, 2007-

Ohio-6412, ¶ 29; State v. Dierkes, 11th Dist. Portage No. 2008-P-0085, 2009-Ohio-2530, ¶

17.

       {¶ 14} According to Ohio law, a valid arrest supported by probable cause to believe a

defendant to have been operating a motor vehicle while under the influence of alcohol is a

condition precedent to obtaining a defendant's consent to take a blood-alcohol test after

reading the implied consent form. City of Hamilton v. Baker, 12th Dist. Butler No. CA93-09-

170, 1994 Ohio App. LEXIS 2098 (May 16, 1994), citing State v. Risner, 55 Ohio App.2d 77,

80 (3rd Dist.1977); R.C. 4511.191(A). In the absence of a valid arrest, consent obtained

after a reading of the implied consent form is considered involuntary and the test results are

inadmissible. Id. This is further reflected in the plain language of the implied consent statute,

R.C. 4511.191, which states: "Any person who operates a vehicle * * * within this state * * *

shall be deemed to have given consent to a chemical test * * * of the person's * * * urine if

arrested for a violation of [R.C. 4511.19(A) or (B)]." (Emphasis added.) R.C. 4511.191(A)(2).

       {¶ 15} In the instant matter, the trial court made findings of fact that the trooper had

probable cause to arrest Harris and had informed Harris of his rights pursuant to the implied

consent form, which requires that a person be placed under arrest. Harris does not dispute

that probable cause existed for an arrest, a finding which we note is supported by the record.

Rather, Harris disputes that an arrest took place before the trooper read the implied consent

form to Harris.

       {¶ 16} The Supreme Court of Ohio has held that "an arrest occurs when the following

four requisite elements are involved: (1) An intent to arrest, (2) under a real or pretended

authority, (3) accompanied by an actual or constructive seizure or detention of the person,

and (4) which is so understood by the person arrested." State v. Horton, 12th Dist. Clermont

No. CA2000-04-024, 2000 Ohio App. LEXIS 6098 (December 26, 2000), citing State v.
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Darrah, 64 Ohio St. 2d 22, 26 (1980). With regard to arrests associated with the implied

consent form, this court has held that "the reading of the implied consent form not only

manifests the trooper's intent to arrest, it also amounts to a seizure of [the defendant]."

Baker at *8, quoting State v. Fields, 12th Dist. Clermont No. CA93-04-025, 1993 Ohio App.

LEXIS 5685 (Nov. 29, 1993).

       {¶ 17} Harris initially argues no valid arrest occurred because the trooper had no

intention of detaining Harris or taking him to jail, which he contends is evidenced by the fact

that the trooper left Harris alone in the hospital. However, pursuant to the above, the

trooper's intent to arrest Harris, as well as a constructive seizure of Harris, occurred upon the

trooper's reading of the implied consent form. As such, we reject Harris' argument that the

trooper had no intention of arresting Harris.

       {¶ 18} The record further reflects that Harris was aware that he was under arrest at the

time the trooper read the implied consent form to him. Notably, the first line of the implied

consent form states: "You now are under arrest for operating a vehicle under the influence of

alcohol, a drug, or a combination of them." The record indicates Harris signed the informed

consent form, acknowledging that the trooper had read him the form, and that he was

complicit in providing a urine sample. Moreover, although the trooper did not physically

restrain Harris, he consistently testified that Harris was under arrest for operating a motor

vehicle while under the influence of alcohol or drugs. According to the trooper, he did not

place Harris physically under arrest because "he was on a medical bed being * * * taken care

of by the doctors [and] nurses." Notwithstanding the lack of physical incarceration, the record

indicates the trooper advised Harris that he was under arrest, that he was not free to leave

the hospital, and that he was to remain in the hospital if discharged. Despite the trooper's

advisements, Harris fled from the hospital and attempted to exit the parking lot in order to

avoid receiving his citation. These facts establish that Harris understood he was under arrest
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prior to his discharge.

       {¶ 19} In light of the foregoing, we find that the trooper complied with the informed

consent statute and that the arrest requirement for valid implied consent was satisfied.

Because we find that Harris was properly under arrest at the time the implied consent form

was read to him, his consent to provide a urine sample for testing is valid, and the test results

are admissible. Accordingly, we find the trial court did not err in denying Harris' motion to

suppress.

       {¶ 20} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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