[Cite as Tallmadge v. Ragle, 2011-Ohio-5896.]


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

CITY OF TALLMADGE                                   C.A. No.       25706

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
ZACHARY L. RAGLE                                    STOW MUNICIPAL COURT
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   2010TRC04803

                                DECISION AND JOURNAL ENTRY

Dated: November 16, 2011



        DICKINSON, Judge.

                                           INTRODUCTION

        {¶1}    Zachary Ragle drove his truck off the road and into a tree. When Officer Dennis

Eichler arrived at the scene, he found Mr. Ragle lying across the front seats of the truck,

unconscious. There was a strong odor of alcoholic beverages coming from inside the vehicle,

and there was a case of beer on the floorboard of the truck with two of the cans missing. Officer

Eichler cited Mr. Ragle for driving while under the influence and operating a motor vehicle

without reasonable control. Emergency personnel transported Mr. Ragle to the hospital, where a

nurse drew his blood. After testing revealed that the blood-alcohol content of Mr. Ragle’s blood

was 0.185, Officer Eichler cited him for another count of driving while under the influence. Mr.

Ragle moved to suppress the evidence against him, arguing that Officer Eichler did not have

probable cause to arrest him and that the blood draw was not done in substantial compliance with

Section 3701-53-05 of the Ohio Administrative Code. After the municipal court denied his
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motion, Mr. Ragle entered a plea of no contest. The municipal court found him guilty of the

offenses and sentenced him to 180 days in jail. It suspended 174 of the days upon the condition

that Mr. Ragle complete a driver intervention program, serve three days in jail, and obey all laws

for one year. Mr. Ragle has appealed, arguing that the municipal court incorrectly denied his

motion to suppress. We affirm in part, but vacate his sentence for the blood-alcohol content

offense because that count merged at sentencing.

                                      PROBABLE CAUSE

       {¶2}    Mr. Ragle’s second assignment of error is that the municipal court incorrectly

denied his motion to suppress because Officer Eichler did not have probable cause to arrest him

for driving while under the influence. A motion to suppress evidence presents a mixed question

of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, at ¶8. Generally, a

reviewing court “must accept the trial court’s findings of fact if they are supported by competent,

credible evidence.” Id. But see State v. Metcalf, 9th Dist. No. 23600, 2007-Ohio-4001, at ¶14

(Dickinson, J., concurring). The reviewing court “must then independently determine, without

deference to the conclusion of the trial court, whether the facts satisfy the applicable legal

standard.” Burnside, 2003-Ohio-5372, at ¶8.

       {¶3}    Officer Eichler testified that, when he approached Mr. Ragle’s truck, he saw Mr.

Ragle lying across the driver’s and passenger’s seats with his head lying on the passenger door.

Mr. Ragle was not wearing a seat belt and was unconscious. Officer Eichler observed “a strong

odor of alcoholic beverage[s] coming from inside the vehicle” and a case of beer on the

floorboard. Two cans were missing from the case of beer. As emergency personnel were

moving Mr. Ragle onto a back board, he regained consciousness and began struggling, so Officer

Eichler held Mr. Ragle’s hands down while the emergency personnel strapped him to the board.
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Officer Eichler testified that he was “over” Mr. Ragle as he held his hands down and smelled “a

very strong odor of alcoholic beverage[s] coming from his breath.” While Officer Eichler was

not able to observe Mr. Ragle’s eyes because they were closed most of the time, he noticed that

his speech was slurred.

       {¶4}     “In determining whether the police had probable cause to arrest an individual for

[driving under the influence], we consider whether, at the moment of arrest, the police had

sufficient information, derived from a reasonably trustworthy source of facts and circumstances,

sufficient to cause a prudent person to believe that the suspect was driving under the influence.”

State v. Homan, 89 Ohio St. 3d 421, 427 (2000). “In making this determination, we . . . examine

the ‘totality’ of facts and circumstances surrounding the arrest.” Id. It is not necessary for a

police officer to conduct field sobriety tests or to have observed erratic driving to make an arrest

for driving under the influence. Id.; State v. Kurjian, 9th Dist. No. 06CA0010-M, 2006-Ohio-

6669, at ¶17.

       {¶5}     Upon a review of the totality of the circumstances, we conclude that the municipal

court correctly concluded that Officer Eichler had probable cause to arrest Mr. Ragle on

suspicion of driving while under the influence. Mr. Ragle was the sole occupant of a truck that

was involved in a one-vehicle crash, his breath smelled strongly of alcoholic beverages, and

there was a case of beer in the front area of the truck with him, with some of the cans missing.

Mr. Ragle’s first assignment of error is overruled.

                                         BLOOD DRAW

       {¶6}     Mr. Ragle’s second assignment of error is that the municipal court incorrectly

denied his motion to suppress the results of the blood-alcohol content test because the City failed

to prove that his blood was drawn in substantial compliance with Section 3701-53-05 of the Ohio
                                                  4


Administrative Code. He has argued that the City did not establish that the nurse who drew his

blood used a sterile needle, that the vial into which his blood was placed contained a solid

anticoagulant, or that the label on the vial had the time of collection.

       {¶7}    We do not need to determine whether the blood draw substantially complied with

the Ohio Administrative Code because, even if it did not, the error was harmless. Officer Eichler

cited Mr. Ragle for two violations of Section 333.01 of the Codified Ordinances of the City of

Tallmadge, Ohio. One citation was for operating a vehicle “under the influence of alcohol”

under Section 333.01(a)(1)(A).       The other was for operating a vehicle while having “a

concentration of seventeen-hundredths of one per cent or more by weight per unit volume of

alcohol in [his] whole blood” under Section 333.01(a)(1)(F). Although the municipal court

found him guilty of both offenses, it “merged” the blood-alcohol content offense with the

operating under the influence count because they were the “same offense.”              If a count is

eliminated through merger, any error regarding the count is rendered harmless beyond a

reasonable doubt. State v. Powell, 49 Ohio St. 3d 255, 263 (1990) (superseded by constitutional

amendment on other grounds); State v. Dew, 7th Dist. No. 08 MA 62, 2009-Ohio-6537, at ¶135

(superseded by constitutional amendment on other grounds); see Crim. R. 52(A) (providing that

“[a]ny error . . . which does not affect substantial rights shall be disregarded.”). Mr. Ragle’s first

assignment of error is overruled.

                                             MERGER

       {¶8}    Under Section 2941.25(A) of the Ohio Revised Code, a defendant may be charged

with multiple offenses based on the same conduct but may be convicted of only one. State v.

Gapen, 104 Ohio St. 3d 358, 2004-Ohio-6548, at ¶135. “A ‘conviction’ includes both the guilt

determination and the penalty imposition.” Id. In this case, the municipal court merged the
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blood-alcohol content offense after imposing a sentence on it. The Ohio Supreme Court has

explained that the correct time to merge counts, however, is before imposing sentence. State v.

Damron, 129 Ohio St. 3d 86, 2011-Ohio-2268, at ¶17 (“[A] trial court must merge the crimes

into a single conviction and impose a sentence that is appropriate for the offense chosen for

sentencing.”). We, therefore, vacate the sentence that the municipal court imposed on the blood-

alcohol content count because that count had merged into the count for operating a vehicle under

the influence of alcohol.

                                         CONCLUSION

       {¶9}    Officer Eichler had probable cause to arrest Mr. Ragle for driving while under the

influence. Because the blood-alcohol content count was eliminated by merger, any irregularity

with the blood draw was harmless error. The judgment of the Stow Municipal Court is affirmed

in part, and Mr. Ragle’s sentence for violating Section 333.01(a)(1)(F) of the Codified

Ordinances of the City of Tallmadge, Ohio, is vacated.

                                                                        Judgment affirmed in part,
                                                                      and sentence vacated in part.




       There were reasonable grounds for this appeal.

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

Court, County of Summit, 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(E). The Clerk of the Court of Appeals is
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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.




                                                      CLAIR E. DICKINSON
                                                      FOR THE COURT




CARR, P. J.
CONCURS

MOORE, J.
CONCURS IN PART, AND DISSENTS IN PART, SAYING:

       {¶10} I concur in the majority’s analysis and conclusions regarding the issues of

probable cause. I also agree the trial court erred in sentencing on both the OVI and the blood

alcohol content counts before attempting to merge them. The majority, however, has elected to

vacate the sentence on the blood alcohol content count, while the Ohio Supreme Court has said

that election rests with the city. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2. “In this

case, the court of appeals properly corrected the trial court’s error in sentencing Whitfield for the

allied offenses of drug possession and drug trafficking. But the court of appeals erred in

ordering that this case be ‘remanded to the trial court with instructions to vacate the conviction

and sentence for drug possession only.’” Id. at ¶19. Further, the court held “[t]he court of

appeals impermissibly intruded on the state’s right to elect by directing the trial court to vacate

[one] conviction.” Id. at ¶22. The Supreme Court in Whitfield remanded the matter to the trial

court for a new sentencing hearing where the state must elect the offense on which the defendant
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would be sentenced. Id. at ¶22. See, also, State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268,

at ¶18.

          {¶11} For these reasons, I dissent from so much of the majority’s opinion as purports to

select the count upon which Ragle should be sentenced. Accordingly, I would consider the

efficacy of the blood draw on the merits.


APPEARANCES:

BRIAN M. PIERCE, Attorney at Law, for Appellant.

PENNY TAYLOR and MEGAN E. RABER, Attorneys at Law, for Appellee.
