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State v. McCall

Court of Appeals of Ohio, Ninth District, Lorain

January 9, 2017

STATE OF OHIO Appellee
v.
ARTHUR MCCALL Appellant

         APPEAL 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 Appellant.

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

          DECISION AND JOURNAL ENTRY

          BETH 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 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} 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 ...


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