[Cite as State v. Tipton, 2012-Ohio-5165.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2012CA00070
CHRISTINE M. TIPTON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Massillon Municipal Court,
                                               Case No. 2011TRC5590


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         November 5, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


ROBERT A. ZEDELL                               MICHAEL BOSKE
Massillon Law Department                       122 Central Plaza North
Two James Duncan Plaza                         Canton, Ohio 44702
Massillon, Ohio 44646
Stark County, Case No. 2012CA00070                                                      2

Hoffman, J.


       {¶1}    Defendant-appellant Christine M. Tipton appeals her conviction for driving

under the influence of alcohol entered by the Massillon Municipal Court.        Plaintiff-

appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}    On August 5, 2011, Appellant was involved in a one car accident on State

Route 21 in Massillon, Ohio. The vehicle involved in the accident was turned on its roof

and lay in a ditch on the west side of the road.

       {¶3}    Upon arrival at the scene of the accident, Officer Tom Rogers of the

Massillon Police Department observed Appellant had bloodshot and glassy eyes, a

strong odor of alcohol on her person, and difficultly speaking.

       {¶4}    Appellant was then transported to Affinity Medical Center, where a sample

of her blood was drawn by a qualified technician at 1:44 a.m. The blood sample was

later placed in a refrigerator at the Massillon Police Department the same night, and

subsequently tested for alcohol at the Stark County Crime Lab with the result being

0.23%.

       {¶5}    Appellant was subsequently arrested and charged with driving under the

influence, in violation of R.C. 4511.19(A)(1)(a) and operating a motor vehicle without

reasonable control, in violation of R.C. 4511.202. Appellant entered a plea of not guilty

to the charges.

       {¶6}    On September 22, 2011, Appellant filed a motion to suppress the

evidence.     On December 1, 2011, the state filed a response making all materials

relevant to the motion available for inspection by counsel for Appellant. The trial court
Stark County, Case No. 2012CA00070                                                         3


heard the motion on December 28, 2011.                 Following the hearing, the trial court

overruled the motion in part, finding the blood sample taken at the hospital to have been

collected and handled in substantial compliance with the Ohio Department of Health

Regulations. The trial court further granted Appellant leave to amend her motion to

suppress to further challenge the testing procedures used at the Stark County Crime

Lab. The record does not indicate any additional motions were filed by Appellant.

       {¶7}      On March 14, 2012, Appellant entered a plea of no contest to a violation of

R.C. 4519.11(A)(1)(a). The trial court found Appellant guilty of the charge, imposing a

sentence accordingly.

       {¶8}      Appellant now appeals, assigning as error:

       {¶9}      “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

SUPPRESS, AS THE OFFICER DID NOT HAVE SUFFICIENT PROBABLE CAUSE TO

ARREST APPELLANT FOR OVI.

       {¶10} “II. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE RESULTS

OF APPELLANT’S BLOOD TEST WHEN THE STATE FAILED TO PROVIDE

EVIDENCE THAT IT SUBSTANTIALLY COMPLIED WITH THE OHIO DEPARTMENT

OF HEALTH REGULATIONS REGULATING THE STORAGE AND TESTING OF

BLOOD SAMPLES ACCORDING TO OHIO ADMINISTRATIVE CODE (OAC) 3701-53-

01 ET SEQ.”

                                                  I.

       {¶11} In the first assignment of error, Appellant maintains the trial court erred in

denying the motion to suppress as the state failed to demonstrate probable cause in the

arrest herein.
Stark County, Case No. 2012CA00070                                                          4


       {¶12} 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 (1982),

1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993),

86 Ohio App.3d 592. 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 (1993), 86 Ohio

App.3d 37. 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 (1994), 95

Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; Guysinger. As the United

States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, 1663, “... as a

general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.”

       {¶13} Appellant argues the evidence observed by Officer Rogers does not rise

to the level of probable cause; therefore, any and all evidence, including the blood test,

should be suppressed.

       {¶14} Officer Rogers testified at trial he responded to a one vehicle accident on

State Route 21 in which the vehicle involved was found on its roof. He further testified,
Stark County, Case No. 2012CA00070                                                    5


      {¶15} “Q. Did you notice anything about Ms. Tipton when you spoke with her?

      {¶16} “A. Um some of the things that she was saying were really sort of

intelligible [sic] um her eyes were bloodshot and glassy um I could smell an alcoholic

beverage um the odor was on or about her person but um as far as in regards to asking

her a lot of questions um I left the fire department do what they needed to do.

      {¶17} “Q. What did you do after the fire department was done with her?

      {¶18} “A. As far as from the scene of the accident…

      {¶19} “Q. Yes.

      {¶20} “A. …I just gathered what information I needed from the scene of the

accident and then I went to Affinity ER where they took Ms. Tipton.

      {¶21} “Q. What action did you take at Affinity ER regarding Ms. Tipton?

      {¶22} “A. I wanted to have blood drawn.

      {¶23} “Q. Why did you want to have blood drawn?

      {¶24} “A. Um do [sic] to the fact that the way her actions were out at the scene

and when we were inside the ER, her eyes and then the smell of alcoholic beverage. I

believe I had enough probable cause to believe the accident was caused from drinking.

      {¶25} “Q. Did you believe her to be under the influence of alcohol?

      {¶26} “A. Yes I did.”

      {¶27} Tr. at 6-7.

      {¶28} We find Officer Rogers observations of the accident scene and of

Appellant provided sufficient probable cause to support her arrest in the case sub

judice. Officer Rogers observed Appellant’s vehicle in a single car accident. He further

observed her with bloodshot, glassy eyes and a strong odor of alcohol with difficulty
Stark County, Case No. 2012CA00070                                                       6


speaking. We find his observations provide sufficient probable cause Appellant was

intoxicated while operating the vehicle.       Appellant's first assignment of error is

overruled.

                                                II.

      {¶29} In the second assignment of error, Appellant maintains the trial court erred

in failing to suppress the results of the blood test or in finding the State had failed to

comply with the Ohio Department of Health Regulations regarding collection and

handling of the blood specimen.

      {¶30} Appellant was not charged with a violation of R.C. 4519.11(A)(1)(f); rather,

R.C. 4511.19(A)(1)(a) only. Upon review of the record, at the beginning of the hearing,

Appellant withdrew the portion of the motion pertaining to the blood draw not being

performed within three hours of the accident. The trial court granted Appellant leave to

amend her motion to state with particularity those areas which Appellant wished to

further challenge by amending her motion to suppress.         Appellant's original motion

asserted the state failed to comply with the Ohio Department of Health Regulations

concerning the collection and handling of the blood specimen up to the point the sample

was placed into evidence at the Massillon Police Department. Specifically, Appellant

now maintains the witnesses did not have personal knowledge of how the sample was

handled or tested; therefore, there was no evidence provided as to compliance with

refrigeration requirements.

      {¶31} Appellant did not specifically challenge the contents of the lab report or the

test results. Appellant had an opportunity to amend her motion to suppress and to

submit thereafter additional testimony concerning the lab report itself, the qualifications
Stark County, Case No. 2012CA00070                                                         7


of the personnel involved, and/or the procedure used concerning refrigeration. We find

Appellant failed to do so by failing to take advantage of the trial court’s granting of leave

to amend her motion and/or for further evidentiary hearing theron.

       {¶32} The second assignment of error is overruled.

       {¶33} The judgment of the Massillon Municipal Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                              s/William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ W. Scott Gwin_____________________
                                              HON. W. SCOTT GWIN


                                              s/ John W. Wise _____________________
                                              HON. JOHN W. WISE
Stark County, Case No. 2012CA00070                                                8


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


STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :          JUDGMENT ENTRY
                                            :
CHRISTINE M. TIPTON                         :
                                            :
       Defendant-Appellant                  :          Case No. 2012CA00070


       For the reasons stated in our accompanying Opinion, the judgment of the

Massillon Municipal Court is affirmed. Costs to Appellant.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin_____________________
                                            HON. W. SCOTT GWIN


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE
