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State v. Harper

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 22, 2018

STATE OF OHIO PLAINTIFF-APPELLANT
v.
BRANDON M. HARPER DEFENDANT-APPELLEE

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-609724-A

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor BY: Jennifer King Anthony Thomas Miranda Assistant Prosecuting Attorneys The Justice Center,

          ATTORNEYS FOR APPELLEE Joseph C. Patituce Catherine Meehan Patituce & Associates.

          BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., Judge.

         {¶1} Plaintiff-appellant, the state of Ohio, brings this appeal challenging the trial court's judgment granting the motion to suppress filed by defendant-appellee, Brandon Harper ("Harper"). The state argues that the results of Harper's blood test were admissible pursuant to R.C. 4511.19(D)(1)(a) and that the trial court erroneously held that the state should have obtained search warrants to conduct the blood test and obtain the test results. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} The instant criminal proceedings arose from a motor vehicle accident that Harper was involved in on June 22, 2016. Harper sustained a head injury during the accident and the responding Fairview Park police officers transported him to the emergency department at Fairview Hospital where he was treated. Hospital personnel decided to perform a blood draw in the course of Harper's medical treatment. The blood test revealed that Harper had an ethanol alcohol level of 308, which converts to a blood alcohol concentration of .256. (Tr. 85.) The state obtained the results of Harper's blood test through a subpoena.

         {¶3} In Cuyahoga C.P. No. CR-16-609724-A, the Cuyahoga County Grand Jury returned a four-count indictment on September 22, 2016, charging Harper with (1) aggravated vehicular assault, a third-degree felony in violation of R.C. 2903.08(A)(1)(a), (2) aggravated vehicular assault, a fourth-degree felony in violation of R.C. 2903.08(A)(2)(b), (3) driving while under the influence, a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(a), and (4) driving while under the influence, a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(g). Harper was arraigned on October 6, 2016; he pled not guilty to the indictment.

         {¶4} On November 29, 2016, Harper filed a motion to exclude certain testimony pursuant to Evid.R. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Specifically, Harper sought to prohibit the state from introducing testimony and evidence regarding the blood draw, the results of the blood draw, and the derivation of his blood alcohol content.

         {¶5} On January 20, 2017, Harper filed a motion to suppress (1) the results of the tests pertaining to his coordination, sobriety, and alcohol or drug consumption, (2) any observations or opinions of the responding police officers, (3) any statements made by Harper, and (4) any physical evidence obtained by the responding officers. Harper argued, in relevant part, that the results of his blood test should be suppressed because the officers lacked probable cause to arrest him, he had not been placed under arrest when the blood draw was performed, his blood was taken without a warrant in violation of the Fourth Amendment to the United States Constitution, his blood sample was not properly collected, contained, sealed, and stored as required by Ohio Administrative Code Section 3701-53-05, and the "chemical test" was not admissible pursuant to Evid.R. 702 and Daubert.

         {¶6} On June 20, 2017, the trial court held a hearing on Harper's motion to suppress. The state called the following four witnesses at the suppression hearing: (1) Karen Patel, a physician assistant in the emergency department at Fairview Hospital, (2) Dena Allen, Fairview Hospital laboratory manager, (3) Dr. Harold Schueler, chief toxicologist with the Cuyahoga County Medical Examiner's Office, and (4) Fairview Park Police Officer Richard Rutt, who responded to the scene of the motor vehicle accident.

         {¶7} At the close of the suppression hearing, the trial court concluded that "there is no expert testimony that the Court could rely on to determine the validity of the blood alcohol test." (Tr. 156.) Furthermore, the trial court held that the blood draw should have been conducted pursuant to a search warrant, and that the results of the blood draw should also have been obtained through a search warrant, rather than a subpoena. Accordingly, the trial court granted Harper's motion to suppress in part, suppressing the results of the blood test.

         {¶8} It is from this judgment that the state filed the instant appeal on June 30, 2017. The state assigns two errors for review:

I. Because Harper's blood was drawn and analyzed by a health care provider pursuant to R.C. 4511.19(D)(1)(a), the trial court erred in suppressing the results due to non-compliance with regulations.
II. The trial court erred in suppressing blood results on the basis that they were obtained without a search warrant because the blood draw was done for a medical purpose by a non-governmental actor and obtained by police through lawful subpoena pursuant to R.C. 2317.02(B)(2)(a).

         II. Law and Analysis

         A. ...


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