[Cite as State v. Troyer, 2013-Ohio-3697.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2013CA00038
ADEN TROYER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Canton Municipal
                                               Court, Case No. 2012TRC8231


JUDGMENT:                                      Reversed and Remanded



DATE OF JUDGMENT ENTRY:                        August 26, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOSEPH MARTUCCIO                               MICHAEL A. BOSKE
CANTON LAW DIRECTOR                            122 Central Plaza North
TYRONE D. HAURITZ                              Canton, Ohio 44702
CANTON CITY PROSECUTOR
TASHA FORCHIONE
ASSISTANT CITY PROSECUTOR
218 Cleveland Avenue, SW
Post Office Box 24218
Canton, Ohio 44701-4218
Stark County, Case No. 2013CA00038                                                     2

Wise, J.

       {¶1}   Appellant Aden Troyer appeals the decision of the Canton Municipal Court

denying his motion to suppress.

       {¶2}   Appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

       {¶3}   On December 23, 2012, Appellant Aden Troyer was stopped for making

an improper lane change. Canton Police subsequently took Appellant to Aultman

Hospital in order to obtain a blood sample. (Supp. T. at 15). As a result of the blood

alcohol test, Appellant was charged with OVI.

       {¶4}   On February 1, 2013, Appellant filed a Motion to Suppress the results of

the blood alcohol test.

       {¶5}   On February 4, 2013, the State of Ohio filed an Objection to Appellant's

Motion to Suppress.

       {¶6}   On February 11, 2013, the trial court overruled the State’s objection and a

hearing was held on Appellant’s Motion.

       {¶7}   The following testimony and evidence was presented at the suppression

hearing:

       {¶8}   The blood sample was taken at 2:50 a.m. by a "tech'' using a kit prepared

by the Stark County Crime Lab. (Supp. T. at 24, 26, 42). The sample was placed in an

envelope, marked with a bio-hazard sticker. (Supp. T. at 22). The sample was then

taken to the Canton Police Department by Officer Scott Jones and placed in a

refrigerator located in the supervisor’s office. (Supp.T.at 16-17).
Stark County, Case No. 2013CA00038                                                        3


       {¶9}   The Lab Report indicates that on December 24, 2012, another officer,

Officer Kevin Clary, who did not testify, removed the sample from the refrigerator and

transported it to the Crime Lab. (Supp. T. at 17, 32). The sample was received at 8:45

a.m. by Jennifer Creed, an employee of the Crime Lab, who also did not testify.

       {¶10} No evidence was presented by the State regarding when the sample left

the police station, how long it took to transport the sample to the Crime Lab, or how it

was maintained when not being transported.

       {¶11} When questioned about whether the Stark County Crime Lab had passed

a proficiency test or whether the lab director had signed the procedural manual, the

Criminalist stated that only the individual permit holders took proficiency tests. (Supp. T.

at 41-42). He further stated that he did not know whether the acting director at the time

had signed the labs procedural manual. (Supp. T. at 40).

       {¶12} At the conclusion of the hearing, the trial court orally denied Appellant’s

Motion to Suppress, followed by a written Judgment Entry filed the same day.

       {¶13} On February 11, 2013, Appellant entered a plea of no contest and was

sentenced.

       {¶14} Appellant now appeals, assigning the following error for review:

                               ASSIGNMENT OF ERROR

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

TO SUPPRESS THE RESULTS OF THE APPELLANT’S BLOOD ALCOHOL TEST.”

                                             I.

       {¶16} In his sole Assignment of Error, Appellant argues the trial court erred in

denying his motion to suppress. We agree.
Stark County, Case No. 2013CA00038                                                         4


       {¶17} 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.”

       {¶18} This Court has previously addressed what the burden on the State is

when a defendant challenges the admission of test results on the basis of

noncompliance with Department of Health Regulations:

       {¶19} “Crim.R. 47 provides that a motion to suppress ‘shall state with

particularity the grounds upon which it is made and shall set forth the relief or order
Stark County, Case No. 2013CA00038                                                         5

sought.’” The state waives this issue if not raised by objection. State v. Mayl, 154 Ohio

App.3d 717, 2003–Ohio–5097, ¶ 22.

       {¶20} “ ‘The defendant must first challenge the validity of the alcohol test by way

of a pretrial motion to suppress; failure to file such a motion “waives the requirement on

the state to lay a foundation for the admissibility of the test results.” State v. French

(1995), 72 Ohio St.3d 446, 451, 650 N.E.2d 887. After a defendant challenges the

validity of test results in a pretrial motion, the state has the burden to show that the test

was administered in substantial compliance with the regulations prescribed by the

Director of Health. Once the state has satisfied this burden and created a presumption

of admissibility, the burden then shifts to the defendant to rebut that presumption by

demonstrating that he was prejudiced by anything less than strict compliance. * * *

Hence, evidence of prejudice is relevant only after the state demonstrates substantial

compliance with the applicable regulation.’ Burnside, 100 Ohio St .3d 152, 2003–Ohio–

5372, 797 N.E.2d 71, ¶ 24.” State v. O'Neill, 175 Ohio App.3d 402, 887 N.E.2d 394,

2008–Ohio–818, ¶ 19.” State v. Falconer, 5th Dist. No. 2011 CA00233, 2012–Ohio–

2293, ¶ 24–25.

       {¶21} In the instant case, Appellant’s suppression motion argued that “the

sample was not obtained by a qualified person and was not collected in accordance

with the statutes and regulations governing such procedures. Additionally, the sample

was not maintained and transported as required by O.A.C. 3701-53-05.”

       {¶22} Upon review, we find that the State failed to present testimony or evidence

at the suppression hearing in regard to the chain of custody, or of preservation of

Appellant’s blood sample during transport as required by O.A.C. 3701.53-05.              We
Stark County, Case No. 2013CA00038                                                     6


further find that the State failed to present evidence of substantial compliance that the

Stark County Crime Lab was in compliance with O.A.C. 3701-53-09 on the issue of

completion and passage of a proficiency test or O.A.C. 3701-53-06 requiring that the

director review, sign and date the procedure manual, certifying its compliance with such

rule.

        {¶23} Based on the foregoing, we find that he State failed to carry its burden to

show that the blood test in the case sub judice was administered in substantial

compliance with the regulations prescribed by the Director of Health.

        {¶24} Appellant’s sole Assignment of Error is sustained.

        {¶25} The judgment of the Canton Municipal Court, Stark County, Ohio, is

reversed and this matter is remanded for further proceeding consistent with the law and

this opinion.


By: Wise, J.

Farmer, P. J., and

Baldwin, J., concur.



                                             ___________________________________
                                             HON. JOHN W. WISE


                                             ___________________________________
                                             HON. SHEILA G. FARMER


                                             ___________________________________
                                             HON. CRAIG R. BALDWIN


JWW/d 0812
Stark County, Case No. 2013CA00038                                                7


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




STATE OF OHIO                                :
                                             :
       Plaintiff-Appellee                    :
                                             :
-vs-                                         :          JUDGMENT ENTRY
                                             :
ADEN TROYER                                  :
                                             :
       Defendant-Appellant                   :          Case No. 2013CA00038




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court, Stark County, Ohio, is reversed and remanded

for further proceedings consistent with this opinion.

       Costs assessed to Appellee.




                                             ___________________________________
                                             HON. JOHN W. WISE


                                             ___________________________________
                                             HON. SHEILA G. FARMER


                                             ___________________________________
                                             HON. CRAIG R. BALDWIN
