FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 13CR086836
MICHAEL E. STEPANK and JACK W. BRADLEY, Attorneys at Law, for
P. WILL, Prosecuting Attorney, and ELIZABETH LINDBERG,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
Appellant, Arthur McCall, appeals from the September 30, 2015
judgment of the Lorain County Court of Common Pleas. This
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
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 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
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.
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[.]"
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
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
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 ...