[Cite as State v. McCall, 2017-Ohio-34.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                        C.A. No.        15CA010861

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ARTHUR MCCALL                                        COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   13CR086836

                                 DECISION AND JOURNAL ENTRY

Dated: January 9, 2017



        WHITMORE, Judge.

        {¶1}     Appellant, Arthur McCall, appeals from the September 30, 2015 judgment of the

Lorain County Court of Common Pleas. This Court affirms.

                                                 I

        {¶2}     In State v. McCall, 9th Dist. Lorain No. 14CA010582, 2015-Ohio-1251, ¶ 2-7,

(“McCall I”), this Court set forth the facts and procedural history as follows:

        On February 23, 2013, around 6:15 a.m., police received several calls about a
        dark vehicle stopped at a green light in the northbound lanes of Lorain Boulevard
        in Elyria near State Route 57. The callers were concerned for the safety of the
        person in the vehicle as it did not appear the person was moving. Police located
        the vehicle at Lorain Boulevard and Foster Avenue. The vehicle was in a lane of
        traffic and was stopped at a green light.

        The driver, Mr. McCall, was the only person in the vehicle. Officers Patrick Jama
        and Scott Willis approached the driver’s side and Officer Michael Darmstadt
        approached the passenger’s side. Officers Jama and Willis were unable to wake
        Mr. McCall by calling out to him or by tapping him. They thus proceeded to pull
        Mr. McCall out of the car. At that point, Mr. McCall became conscious and
        grabbed the steering wheel. Notwithstanding, the officers extracted Mr. McCall
                                               2


       from the vehicle. Mr. McCall smelled of alcohol, had difficulty maintaining his
       balance, and had red glossy eyes.

       The officers handcuffed him, placed him in a cruiser, and transported him to the
       station. As Mr. McCall had several previous convictions for operating a vehicle
       while intoxicated, he was informed that if he refused a chemical test, the officers
       could use reasonable means to ensure that one was obtained from him. Mr.
       McCall refused a field sobriety test, but initially agreed to a urine screen.
       However, he ultimately refused to submit to a urine test but, according to the
       officers, agreed to a blood draw. Mr. McCall was transported to EMH Regional
       Medical Center where a phlebotomist drew his blood. The blood was tested in a
       forensics lab with the results concluding that Mr. McCall’s blood plasma
       contained .2655 grams percent alcohol.

       Ultimately, Mr. McCall was indicted on one count of operating a vehicle under
       the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), along with a
       specification that in the past 20 years he had been convicted of five or more
       equivalent offenses, one count of operating a vehicle under the influence of
       alcohol in violation of R.C. 4511.19(A)(1)(f), along with a similar specification,
       and one count of driving under suspension in violation of R.C. 4510.11(A).

       Mr. McCall filed a motion to suppress articulating 20 grounds for suppression.
       The State filed a written response opposing the motion. Only at the hearing did
       the State assert that Mr. McCall’s motion failed to set forth the grounds with
       particularity. Following the hearing, the trial court allowed both sides to submit
       additional briefing on the issues.

       The trial court granted the motion to suppress concluding that, based upon
       Missouri v. McNeely, 133 S.Ct. 1552 (2013), the blood draw was impermissible
       as Mr. McCall did not consent to the blood draw and there were no exigent
       circumstances justifying the blood draw. Additionally, the trial court concluded
       that evidence obtained from the blood draw should be suppressed because the
       State failed to demonstrate substantial compliance with respect to Ohio
       Admin.Code 3710-53-05 and 3710-53-07.

Further, in its order suppressing the blood draw evidence, the trial court found “that there was

reasonable suspicion to stop [Mr. McCall’s] vehicle based upon the testimony presented at the

[h]earing * * * [and] * * * that probable cause existed to arrest [Mr. McCall] for the offense of

OVI.” As such, the trial court denied “all other issues raised in [Mr. McCall’s] [m]otion to

[s]uppress[.]”
                                                3


       {¶3}    Pursuant to Crim.R. 12(K), the State appealed certifying that: (1) “[t]he appeal

[was] not taken for the purpose of delay” and (2) “[t]he ruling on the trial court’s exclusion of

evidence in response to a motion to suppress has rendered the [S]tate’s proof with respect to the

pending charge so weak in its entirety that any reasonable possibility of effective prosecution has

been destroyed.”

       {¶4}    In McCall I at ¶ 16, this Court affirmed the trial court’s decision to suppress the

blood draw evidence stating that “we cannot conclude that the State substantially complied with

Ohio Admin.Code 3701-53-05(C) as the State failed to demonstrate that Mr. McCall’s blood was

drawn into a tube containing a solid anticoagulant. Thus, the trial court did not err in granting

Mr. McCall’s motion to suppress the evidence obtained from the blood draw.”

       {¶5}    Based upon the State’s Crim.R. 12(K) appeal, Mr. McCall then filed a motion to

dismiss all charges against him, including one count of operating a vehicle under the influence of

alcohol and/or a drug of abuse, in violation of R.C. 4511.19(A)(1)(a), with a specification, and

one count of driving under suspension or in violation of license restriction, in violation of R.C.

4510.11(A). In his motion, Mr. McCall argued that the State should be barred from further

prosecution on all counts in the indictment because it failed to provide supporting

“documentation” that its Crim.R. 12(K) certification was limited only to the per se violation

pursuant to R.C. 4511.19(A)(1)(f).

       {¶6}    In response, the State argued that “Crim.R. 12(K) only bars [it] from prosecuting

the ‘same offense’ that relied upon the suppressed evidence, leaving [it] free to prosecute the

remaining offenses.” Thus, the State contended that Mr. McCall’s motion should be denied, and

that it should be allowed to prosecute the two remaining charges.

       {¶7}    In denying Mr. McCall’s motion, the trial court stated:
                                                 4


       The instant matter is before the [c]ourt upon [Mr. McCall’s] [m]otion to [d]ismiss.
       The State * * * filed a [r]esponse thereto. Upon consideration of [Mr. McCall’s]
       [m]otion, the State’s [r]esponse, and the law applicable to this issue, the [c]ourt
       finds [Mr. McCall’s] [m]otion to [d]ismiss to not be well-taken and it is therefore
       denied. The remaining [c]ounts, specifically [c]ounts [o]ne and [t]hree, remain
       pending and shall be set for [t]rial.

       {¶8}   The State dismissed the R.C. 4511.19(A)(1)(f) per se violation, and Mr. McCall

pleaded no contest to the remaining counts and specification in the amended indictment. The

trial court found Mr. McCall guilty and sentenced him to a collective prison term of 1 year and

60 days, with a $1,350 fine, and a 3 year driver’s license suspension. The trial court stayed Mr.

McCall’s sentence pending appeal.

       {¶9}   Mr. McCall appeals raising two assignments of error. For ease of discussion, we

consolidate Mr. McCall’s assignments of error.

                                                 II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED IN NOT DISMISSING THE COMPANION OVI
       CHARGE AFTER AFFIRMANCE OF ITS SUPPRESSION ORDER BY THE
       COURT OF APPEALS, EFFECTIVELY PERMITTING AN APPEAL
       WITHOUT A FINAL, APPEALABLE ORDER[.]



                                Assignment of Error Number Two

       THE TRIAL COURT ERRED IN PERMITTING THE STATE TO CONTINUE
       TO PROSECUTE A CASE AFTER CERTIFYING “ANY REASONABLE
       POSSIBILITY OF EFFECTIVE PROSECUTION HAS BEEN DESTROYED[.]”

       {¶10} In his first assignment of error, Mr. McCall argues that the trial court erred in

denying his motion to dismiss the companion OVI charge, thus retroactively creating a non-final,

appealable order in McCall I.
                                                  5


       {¶11} We disagree with Mr. McCall’s argument regarding finality because R.C.

2945.67(A) specifically allows for an immediate appeal from an order granting a motion to

suppress.

       {¶12} In his second assignment of error, Mr. McCall argues that the trial court erred in

permitting the State to prosecute the remaining charges in the indictment after its certification

that “[t]he ruling on the trial court’s exclusion of evidence in response to a motion to suppress

has rendered the [S]tate’s proof with respect to the pending charge so weak in its entirety that

any reasonable possibility of effective prosecution has been destroyed.”

       {¶13} In Tallmadge v. Barker, 9th Dist. Summit No. 23961, 2008-Ohio-2154, ¶ 5, this

Court stated:

       Section 3(B)(2), Article IV of the Ohio Constitution grants courts of appeals ‘such
       jurisdiction as may be provided by law to review and affirm, modify, or reverse
       judgments or final orders[.]’ R.C. 2945.67(A) includes within our jurisdiction
       certain orders that may be appealed by the State, including motions to suppress
       evidence.

“R.C. 2945.67(A) provides, in pertinent part: ‘A prosecuting attorney * * * may appeal as a

matter of right any decision of a trial court in a criminal case * * * which decision grants * * * a

motion to suppress evidence * * *.’” State v. Dalchuk, 9th Dist. Summit No. 21423, 2003-Ohio-

4152, ¶ 6. The State’s appeal from an order granting a motion to suppress evidence must comply

with Crim.R. 12(K), which provides, in part:

       When the [S]tate takes an appeal as provided by law from an order suppressing or
       excluding evidence, * * * the prosecuting attorney shall certify that both of the
       following apply:

       (1) the appeal is not taken for the purpose of delay;

       (2) the ruling on the motion or motions has rendered the [S]tate’s proof with
       respect to the pending charge so weak in its entirety that any reasonable
       possibility of effective prosecution has been destroyed * * *.
                                                  6


Further, Crim.R. 12(K) states that:

       The appeal from an order suppressing or excluding evidence shall not be allowed
       unless the notice of appeal and the certification by the prosecuting attorney are
       filed with the clerk of the trial court within seven days after the date of the entry
       of the judgment or order granting the motion. Any appeal taken under this rule
       shall be prosecuted diligently.

       {¶14} In the present matter, the trial court partially granted Mr. McCall’s motion to

suppress evidence. Specifically, the trial court suppressed the blood draw evidence essential to

the State’s prosecution of the per se violation in the indictment. As stated above, Mr. McCall

was indicted on (1) one count of operating a vehicle under the influence of alcohol and/or a drug

of abuse, in violation of R.C. 4511.19(A)(1)(a), with a specification, (2) one count of operating a

vehicle under the influence of alcohol and/or a drug of abuse, in violation of R.C.

4311.19(A)(1)(f), with a specification, and (3) one count of driving under suspension or in

violation of license restriction, in violation of R.C. 4510.11(A).

       {¶15} Pursuant to R.C. 4511.19(A)(1)(f): “[n]o person shall operate any vehicle * * *

within this [S]tate, if, at the time of the operation, * * * [t]he person has a concentration of

seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the

person’s whole blood.” With the blood draw evidence suppressed, the State could not prosecute

Mr. McCall on the alleged per se violation pursuant to R.C. 4511.19(A)(1)(f). Thus, based upon

the partial granting of Mr. McCall’s motion, resulting only in the suppression of the blood draw

evidence, the State filed a timely Crim.R. 12(K) appeal, with respect to that particular charge in

the indictment, because the exclusion of the blood draw evidence “rendered the [S]tate’s proof

with respect to the [alleged per se violation] so weak in its entirety that any reasonable possibility

of effective prosecution ha[d] been destroyed.” See Crim.R. 12(K).
                                                  7


        {¶16} Additionally, we note that the remaining counts in the indictment, alleging

violations of R.C. 4511.19(A)(1)(a)1 and R.C. 4510.11(A)2, did not wholly rely upon the blood

draw evidence for effective prosecution. According to Crim.R. 12(K):

         If an appeal from an order suppressing or excluding evidence pursuant to this
        division results in an affirmance of the trial court, the [S]tate shall be barred from
        prosecuting the defendant for the same offense or offenses except upon a showing
        of newly discovered evidence that the [S]tate could not, with reasonable
        diligence, have discovered before filing of the notice of appeal.

(Emphasis added.) Because the two remaining “offenses” in the indictment differ from the

“offense” listed in R.C. 4511.19(A)(1)(f), Crim.R. 12(K) does not bar the State from prosecuting

Mr. McCall for those offenses. (See generally State v. Noble, 9th Dist. Lorain No. 07CA009083,

2007-Ohio-7051, where the State filed an appeal regarding only that part of the indictment

affected by a pre-trial ruling.)

        {¶17} Therefore, the trial court did not err in denying Mr. McCall’s motion to dismiss;

thus allowing the State to prosecute the two remaining counts in the indictment.

        {¶18} Mr. McCall’s first and second assignments of error are overruled.




1
  R.C. 4511.19(A)(1)(a) states, in relevant part, that: “[n]o person shall operate any vehicle * * *
within this [S]tate, if, at the time of the operation, * * * [t]he person is under the influence of
alcohol, a drug of abuse, or a combination of them.”
2
   R.C. 4510.11(A) states, in relevant part, that: “[e]xcept as provided in division (B) of this
section and in sections 4510.111 and 4510.16 of the Revised Code, no person whose driver’s * *
* license * * * has been suspended under any provision of the Revised Code, other than Chapter
4509[] of the Revised Code, or under any applicable law in any other jurisdiction in which the
person’s license or permit was issued, shall operate any motor vehicle upon the public roads and
highways or upon any public or private property used by the public for purposes of vehicular
travel or parking within this [S]tate during the period of suspension unless the person is granted
limited driving privileges and is operating the vehicle in accordance with the terms of the limited
driving privileges.”
                                                 8


                                                III

       {¶19} Mr. McCall’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                      BETH WHITMORE
                                                      FOR THE COURT

CARR, P. J.
SCHAFER, J.
CONCUR.

APPEARANCES:

MICHAEL E. STEPANIK and JACK W. BRADLEY, Attorneys at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG, Assistant Prosecuting
Attorney, for Appellee.
