Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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
D. CELEBREZZE, JR., Judge.
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.
Factual and Procedural History
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.
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.
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.
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.
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.
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.
It is from this judgment that the state filed the instant
appeal on June 30, 2017. The state assigns two errors for
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).
Law and Analysis