         [Cite as State v. Vasquez, 2017-Ohio-7255.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NOS. C-160784
                                                                   C-160785
        Plaintiff-Appellant,                       :               C-160786
                                                                   C-160787
  vs.                                              :
                                                       TRIAL NOS. 16TRC-21815A
CANDIDO VASQUEZ,                                   :              16TRC-21815B
                                                                  16TRC-21815C
    Defendant-Appellee.                            :              16TRC-21815D

                                                   :       O P I N I O N.




Criminal Appeals From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: August 18, 2017


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Lui, Assistant City Prosecutor, for Plaintiff-Appellant,

Raymond T. Faller, Hamilton County Public Defender, and Carrie Wood, Assistant
Public Defender, for Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Judge.

       {¶1}    In these consolidated appeals, the state of Ohio challenges the trial

court’s judgment granting defendant-appellee Candido Vasquez’s motion to suppress

evidence in four cases, two involving drunk driving, the others involving driving

without a license and impeding traffic. The trial court suppressed the evidence,

including evidence related to field-sobriety tests and a breathalyzer test. The police

obtained this evidence after investigating and arresting Vasquez for having physical

control of a vehicle while under the influence of alcohol.

       {¶2}    We conclude that the trial court properly suppressed the breath-test

result in the case involving a per se violation of the drunk-driving statute. But the

trial court erred by suppressing the other evidence in that case, and by suppressing

the evidence in the other three cases. Thus, for the reasons that follow, we affirm the

trial court’s judgment in part, reverse it in part, and remand the cause for further

proceedings.

                     I. Background Facts and Procedure

       {¶3}    Cincinnati Police Officer Bryan Scott was dispatched to Phillips

Avenue in Price Hill shortly after midnight on May 16, 2016, due to the report of car

parked in the roadway with a person “passed out” in the driver’s seat. Upon his

arrival, Officer Scott found Vasquez alone and asleep in the car, which was parked “at

an angle” and had vomit on the driver’s side door. Officer Scott awakened Vasquez

by knocking on the window and shining a light on him. He asked Vasquez a few

questions and Vasquez replied with a Spanish accent and slurred speech. Officer

Scott noted a strong odor of alcohol from Vasquez’s mouth and observed four to six

empty beer cans in the car, including one in the center console. The officer also

observed that Vasquez had bloodshot eyes and learned that he did not have a license.



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        {¶4}   Officer Scott located the car keys in the car, but he could not recall if

he found them in the ignition or in Vasquez’s pocket. After asking Vasquez to exit

from the car, he administered field-sobriety tests, on which Vasquez performed

poorly. Officer Scott then arrested Vasquez for physical control of a vehicle while

under the influence of alcohol, in violation of R.C. 4511.194, and transported him to

the police station. Another officer at some point administered a breathalyzer test

that indicted a concentration of .189 grams of alcohol per two hundred ten liters of

Vasquez’s breath.

        {¶5}   Later, Officer Scott charged Vasquez with two drunk-driving

offenses—operating a vehicle while under the influence of alcohol, in violation of R.C.

4511.19(A)(1)(a) (“OVI”), and operating a vehicle with a prohibited concentration of

alcohol on his breath, in violation of (A)(1)(h) (“Per Se”). He additionally charged

him with operating a vehicle without a license, in violation of R.C. 4510.12, and

impeding traffic, in violation of R.C. 4511.22. Officer Scott did not charge Vasquez

with violating the physical-control statute that served as the basis for his arrest and

does not require proof of operation.

        {¶6}    Vasquez moved to suppress the evidence, including the results of the

field-sobriety tests and the breath test. At the suppression hearing, only Officer Scott

testified.

        {¶7}   Of importance to this appeal, Vasquez argued to the trial court that

the police needed and lacked probable cause to arrest him for “operating the vehicle,”

and that the police did not administer the breath test within three hours of the

alleged violation, as required by R.C. 4511.19(D).      Vasquez presented additional

arguments, including those based on the officers’ failure to use the services of an

interpreter when interacting with him. But the trial court granted Vasquez’s motion



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                     OHIO FIRST DISTRICT COURT OF APPEALS



based on the state’s failure to demonstrate probable cause to arrest for the

“operating” offenses and to show compliance with R.C. 4511.19(D). The court made

no findings with respect to the other issues raised in Vasquez’s motion.

       {¶8}    Because the court did not specify the evidence it was suppressing, we

interpret the court’s entry as suppressing all of the challenged evidence. Pursuant to

Crim.R. 12(K), the state perfected its appeal to this court, presenting as the single

assignment of error the granting of the motion to suppress.

                                    II. Analysis

                         A. Probable Cause to Arrest

       {¶9}    Although the state presents several arguments challenging the trial

court’s determination on probable cause, we find two of those arguments dispositive.

First, the state argues that the trial court evaluated Vasquez’s probable-cause

argument under an incorrect standard. Whether the trial court applied an incorrect

standard is a legal issue that we review de novo. See, e.g., State v. Codeluppi, 139

Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7-8. Upon our review, we find

merit to the state’s argument.

       {¶10}   In evaluating the constitutionality of Vasquez’s warrantless arrest,

which was followed by the administration of field-sobriety tests and a breath test, the

trial court imposed upon the state the burden of demonstrating probable cause to

arrest for an “operational” offense.    This was error, even though Officer Scott

ultimately charged Vasquez with two operational offenses—OVI and Per Se—and not

the physical-control offense for which he arrested Vasquez.

       {¶11}   Generally, the constitutional validity of Vasquez’s arrest depended

upon whether it was supported by probable cause that Vasquez was committing any

offense for which he could be arrested without a warrant. See Beck v. Ohio, 379 U.S.



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89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Brown, 99 Ohio St.3d 323,

2003-Ohio-3931, 792 N.E.2d 175, syllabus. An officer’s failure to file charges after

an arrest does not affect the validity of the arrest. See State v. Hatfield, 1 Ohio

App.2d 346, 348, 204 N.E.2d 574 (2d Dist.1965); State v. Gordon, 9th Dist. Summit

No. 26786, 2013-Ohio-4997, ¶ 10.

       {¶12}       Probable cause in this case could be established by evidence that the

police had sufficient knowledge at the time, derived from a reasonably trustworthy

source of facts and circumstances, sufficient to cause a prudent person to believe that

Vasquez was in physical control of a vehicle while under the influence of alcohol. See

State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000), citing Beck at 91;

State v. Timson, 38 Ohio St.2d 122, 127, 311 N.E.2d 16 (1974). This standard was not

affected by the fact that the police would have to prove operation to obtain a

conviction for the OVI or Per Se violations. Thus, the trial court erred by applying an

incorrect standard.

       {¶13}       Next the state contends that when the correct standard is applied, it

met its burden of establishing probable cause to arrest. In support, the state cites

Officer Scott’s unimpeached testimony and Vasquez’s concession on this issue before

the trial court.

       {¶14}       With respect to Vasquez’s concession, the transcript from the

suppression hearing discloses that at the conclusion of the evidence, defense counsel

said, “Judge, I think you’ve heard a very compelling story establishing probable

cause to arrest my client for physical control. And I think you should follow that

inclination.” Defense counsel then argued that notwithstanding the existence of

probable cause to arrest for the physical-control offense, the state failed to establish

probable cause to arrest Vasquez for “operation” of a vehicle while impaired.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15}    Based on the record, we conclude that Vasquez conceded this issue.

Because it was undisputed that Officer Scott had probable cause to arrest Vasquez for

physical control of a vehicle while impaired, we hold that the trial court erred when it

granted Vasquez’s motion to suppress based on the lack of probable cause.

                            B. Three-Hour Testing Window

       {¶16}    The trial court also suppressed the breath-test results pursuant to

R.C. 4511.19(D), because the state failed to demonstrate that Vasquez’s breath

sample had been collected within three hours of the alleged violations. The specific

provision at issue, R.C. 4511.19(D)(1)(b), authorizes the trial court in a criminal case

involving a violation of sections (A) or (B) of the drunk-driving statute, or an

equivalent offense involving a vehicle, to admit evidence of alcohol-testing results for

bodily substances, including breath, if the substance was collected within three hours

of the alleged violation.

       {¶17}    The state argues that the breath-test result was not subject to the

exclusionary rule, despite the state’s failure at the suppression hearing to

demonstrate compliance with the three-hour rule of R.C. 4511.19(D).

       {¶18}    Generally, the exclusionary rule is reserved for constitutional

violations. See State v. French, 72 Ohio St.3d 446, 449-450, 650 N.E.2d 887 (1995);

State v. Halko, 1st Dist. Hamilton No. C-850656 (July 16, 1986). But, in the context

of R.C. 4511.19, the rule has been applied to chemical test results “illegally

obtained”—those obtained without compliance with Department of Health testing

regulations or in violation of statutory mandates requiring suppression. French at

451; City of Newark v. Lucas, 40 Ohio St.3d 100, 103, 532 N.E.2d 130 (1988), cited

with approval in State v. Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, 875 N.E.2d

46, ¶ 16-17.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19}     The Ohio Supreme Court found implicit in the language now found in

R.C. 4511.19(D) a mandate requiring the exclusion of chemical test results in per se

drunk-driving cases—those that impose liability for operation with a prohibited

amount of alcohol concentration in a driver’s bodily substance—when the results are

based on bodily substances withdrawn beyond the time indicated in the statute.

Newark at 103.

       {¶20}     The Newark court explained that in cases involving per se violations,

the accuracy of the chemical test is a critical issue, and the test results satisfy an

element of the offense.    Newark at 103.      Thus, the state’s failure to demonstrate

compliance with the then two-hour rule, now three-hour rule, at the suppression

hearing will result in the suppression of the breath-test results in per se drunk

driving cases.   Id. at 104; State v. Halpin, 2d Dist. Clark No. 07CA78, 2008-Ohio-

4136, ¶ 28.

       {¶21}     But in OVI drunk-driving cases, the accuracy of the chemical test is

not the critical issue; in those cases, a probative chemical-test result is considered

along with all the other evidence of impaired driving, as long as the state can lay the

proper foundation with expert testimony. Newark at 104; Halpin at ¶ 28-29. See

Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, 875 N.E.2d 46, at syllabus (“A blood

sample taken outside the time frame set out in R.C. 4511.19(D) is admissible to prove

that a person is under the influence of alcohol as proscribed by R.C. 4511.10(A)(1)(a)

in the prosecution for a violation of [vehicular homicide that alleges driving while

under the influence of alcohol], provided that the administrative requirements of

R.C. 4511.19(D) are substantially complied with and expert testimony is offered.”)

Thus, the Supreme Court has not read R.C. 4511.19(D) in an “exclusionary manner”

with respect to OVI cases. Newark at 104.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22}   Here, Vasquez’s case numbered 16TRC-21815B involves a per se

violation of the drunk-driving statute—operating a vehicle with a prohibited

concentration of alcohol on his breath. The accuracy of the test result was critical for

the prosecution, and the trial court properly suppressed the test result as to that case.

       {¶23}   But the state is correct that the trial court erred by suppressing

Vasquez’s breath-test result in the OVI case, which involves Vasquez’s alleged

violation of the drunk-driving statute relating to the operation of a motor vehicle

while under the influence of alcohol. Likewise, the court’s suppression of the breath-

test results in the nondrunk-driving cases was improper.

                                      III. Conclusion

       {¶24}    The state’s sole assignment of error is sustained in part and overruled

in part.   We therefore affirm the trial court’s judgment to the extent that it

suppressed the results of the breathalyzer test in the case numbered 16TRC-21815B,

involving a per se violation of the drunk-driving statute. The remainder of the

judgment is reversed. The cases are remanded for proceedings consistent with the

law and this opinion.

                                                                 Judgment accordingly.




M OCK , P.J., and D ETERS , J., concur.


Please note:
       The court has recorded its own entry this date.




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