IN THE SUPREME COURT OF OHIO STATE OF OHIO, ..7o,1 5 32 Appellee, vs. KIMBERLY RAUSCHER, Appellant. On Appeal From The Marion County Court Of Appeals, Third Appellate District Court of Appeals Case No. 9-06-42 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT, KIMBERLY RAUSCHER Robert E. Wilson #0015226 WILSON & KOCHHEISER CO., L.P.A. 132 S. Main Street Marion, OH 43302 (740) 387-0970 Fax: (740) 387-3406 COUNSEL FOR APPELLANT, KIMBERLY RAUSCHER Jason Warner Prosecuting Attorney 233 W. Center Street Marion, OH 43302 (740) 387-4817 (74) 382-5274 F AUG 15 20L17 CLERK OF COURT SUPREME COURT OF OHIO COUNSEL FOR APPELLEE, STATE OF OHIO
Transcript
IN THE SUPREME COURT OF OHIO
STATE OF OHIO, ..7o,1 5 32Appellee,
vs.
KIMBERLY RAUSCHER,
Appellant.
On Appeal From TheMarion County CourtOf Appeals, ThirdAppellate District
Court of AppealsCase No. 9-06-42
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT, KIMBERLY RAUSCHER
Robert E. Wilson #0015226WILSON & KOCHHEISER CO., L.P.A.132 S. Main StreetMarion, OH 43302(740) 387-0970Fax: (740) 387-3406
COUNSEL FOR APPELLANT, KIMBERLY RAUSCHER
Jason WarnerProsecuting Attorney233 W. Center StreetMarion, OH 43302(740) 387-4817(74) 382-5274
FAUG 15 20L17
CLERK OF COURTSUPREME COURT OF OHIO
COUNSEL FOR APPELLEE, STATE OF OHIO
TABLE OF CONTENTS
TABLE OF CONTENTS ...... ........................................................................................................I
EXPLANATION OF WHY TIIIS CASE IS OF PUBLIC AND GREAT GENERALINTEREST AND INYOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION.........1
STATEMENT OF THE CASE AND FACTS .............................................................................4
ARGUMENT IN SUPPORT OF PROPOSTIONS OF LAW ....................................................8
Proposition of law No. I: The State does not comply with R.C. 4511.19 when itfails to obtain a blood sample within the time limit prescribed by Section4511.19(D)(1)(b) ..................................................................................................................8
Proposition of law No. II: The State does not substantially comply with OhioAdm. Code 3701-53-05 when it fails to prove the blood sample was drawn incompliance with the requirements prescribed by the Department of Health . . ..................10
A. Court of Appeals Opinion in State v. Rauscher, (July 2, 2007) Marion App. No. 9-06-42,2007-Ohio-3339.
B. Journal Entry in State v. Rauscher, (July 2, 2007) Marion App. No. 9-06-42, 2007-Ohio-3339.
C. Ruling on Motion, State v. Rauscher, Marion Municipal Court, filed May 11, 2006.
D. Journal Entry, State v. Rauscher, Marion Municipal Court, filed August 2, 2006.
i
EXPLANATION OF VVFIY THIS CASE IS OF PUBLIC AND GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION
This appeal concerns the sufficiency of proof of compliance with legal requirements for
blood alcohol testing under the "per se" provisions of R.C. § 4511.19. It implicates requirements
set forth in the statute as well as requirements in the regulations promulgated pursuant to the
statute. The issue is not whether the alleged compliance was substantial but whether the State's
evidence was sufficient to establish any level of compliance. The doctrine of substantial
compliance "does not relieve the state of its burden to prove compliance with the alcohol-testing
regulations, but rather defines what compliance is." State v. Burnside, (October 22, 2003) 100
Ohio St.3d 152, 2003-Ohio-5372, ¶27 emphasis in original. The criteria for compliance are set
out in R.C. § 4511.19 and Ohio Adm. Code 3701-53-05.
The statute provides,
In any criminal prosecution * * * for a violation of division (A) or (B) * * *, thecourt may admit evidence on the concentration of alcohol * * * in the defendant'swhole blood, blood serum or plasma, * * * at the time of the alleged violation asshown by chemical analysis of the substance withdrawn within two hours of thetime of the alleged violation." R.C. § 4511.19(D)(1)(b).1
Thus, the statute requires that Kimberly's blood had to be drawn within two hours of her
operation of the motor vehicle.
The Ohio Administrative Code provides:
"(A) All samples shall be collected in accordance with section 4511.19, orsection 1547.11 of the Revised Code, as applicable.
1 The statute was amended effective Apri14, 2007. The statute now provides, "In any criminalprosecution * * * for a violation of division (A) or (B) * * * the court may admit evidence on theconcentration of alcohol * * * in the defendant's whole blood * * * at the time of the allegedviolation as shown by chemical analysis of the substance withdrawn within three hours of thetime of the alleged violation." R.C. § 4511.19 (D)(1)(b), emphasis added.
1
"(B) When collecting a blood sample, an aqueous solution of a non-volatileantiseptic shall be used on the skin. No alcohols shall be used as a skin antiseptic.
"(C) Blood shall be drawn with a sterile dry needle into a vacuum container with asolid anticoagulant, or according to the laboratory protocol as written in thelaboratory procedure manual based on the type of specimen being tested.
"(D) The collection of a urine specimen must be witnessed to assure that thesample can be authenticated. Urine shall be deposited into a clean glass or plasticscrew top container which shall be capped, or collected according to thelaboratory protocol as written in the laboratory procedure manual.
"(E) Blood and urine containers shall be sealed in a manner such that tamperingcan be detected and have a label which contains at least the followinginformation:
"(1) Name of suspect;
"(2) Date and time of collection;
"(3) Name or initials of person collecting the sample; and
"(4) Name or initials of person sealing the sample.
"(F) While not in transit or under examination, all blood and urine specimensshall be refrigerated." Ohio Adm. Code 3701-53-05.
Thus, the State was required to prove (1) use of an aqueous solution of a nonvolatile antiseptic on
the skin, (2) use of a sterile dry needle to draw blood into a vacuum container with a solid
anticoagulant, (3) sealing the blood container in accordance with the appropriate procedure, and
(4) refrigeration of the blood specimen when it is not in transit or under examination. State v.
The purpose of these regulations is to ensure the accuracy of the alcohol-test results. State
v. Burnside, (October 22, 2003) 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 21, State v. Dickerson
(1986), 25 Ohio St.3d 64, 65-66. Because a conviction under the "per se" offenses in R.C.
4511.19 turns ahnost exclusively on the result of such a test, accurate testing is critical. Against
these values, is balanced the burden of cost and inconvenience. It is important to note that there
2
is a constant, inherent and inevitable tension between expedience and due process. The
requirements set forth in the statute and the regulations make it more difficult for the government
to obtain convictions. But that is the balance struck by the legislature and the Department of
Health. The burden on the government is more than offset by the benefits that accrue in the
accuracy of the test, justice, and public trust in the judicial system.
This appeal squarely presents substantial constitutional issues regarding proof of
compliance under the "per se" provisions of R.C. § 4511.19. Central to the concept due process
of law is the requirement that a criminal conviction be supported by sufficient evidence. This
case presents an opportunity for this Court to clarify what is sufficient proof of compliance with
R.C. § 4511.19 and Ohio Adm. Code 3701-53-05. It also presents substantial constitutional
issues regarding the separation of powers and judicial restraint. It is undisputed that R.C. §
3701.143 charges the director of health with promulgating regulations that will ensure the
accuracy of blood-alcohol test results in an R.C. 4511.19 prosecution. This Court has warned:
"A court infringes upon the authority of the Director of Health when it holds thatthe state need not do that which the director has required. Such an infringementplaces the court in the position of the Director of Health for the precise purpose ofsecond-guessing whether the regulation with which the state has not complied isnecessary to ensure the reliability of the alcohol-test results. This approach furtherprecipitates conflicting decisions from lower courts and impedes the public policyof achieving uniformity and stability in the law." State v. Burnside, (October 22,2003) 100 Ohio St.3d 152, 2003-Ohio-5372 ¶33, citing Painter, Ohio DrivingUnder the Influence Law (2003), Section 9.3, 116.
This case is of public and great general interest because it is an issue of fundamental fairness that
will touch a large number of people and because it will impact the public policy of uniformity
and stability in the law.
3
STATEMENT OF THE CASE AND FACTS
Sometime in the early morning of September 2, 2005, Defendant-Appellant, Kimberly
Rauscher was involved in a one car accident on State Route 203 near County Road 107 in
Marion County. (Tr., p.5, 6, 10-11) She called 911 for assistance. At 3:36 a.m. Highway
Patrolman Steve Walsh was dispatched to the scene. (Tr., p.6, 10, 11) When he arrived at the
scene, Kimberly already was on a stretcher, about to be transported to Marion General Hospital.
(Tr., p.8, 14) His only contact with her at the scene was to ask her who she wanted to tow her
car. (Tr., p.14) At the scene, he interviewed witnesses who either saw or heard the crash.z (Tr.,
p.13) Then Trooper Walsh went to the Hospital to interview Kimberly. (Tr., p.15)
At the Hospital, while Kimberly was strapped to a backboard, Trooper Walsh took her
statement by writing his questions on a piece of paper and then writing Kimberly's answers under
them. (Tr., p.15-16, Defendant's Exhibit A) He did not ask her what time the crash occurred.
(Tr., p.15-16, 17) He did not ask her about making a 911 call. (Tr., p.17-18) He didn't ask her
how long she had been at the scene of the crash before he arrived. (Tr., p.18) Defense counsel
asked the Trooper, "Did you ask her, at any time, anything about times to determine where she
left from, what time she left, approximately what time the accident might have occurred?" He
responded, "No, I didn't." (Tr., p.17)
The Trooper testified he requested that Kimberly supply a blood sample. She agreed.
(Tr., p.8) He handed a State Patrol blood kit to a person he believed to be a nurse to draw blood.
(Tr., p.8) The Trooper then completed a Property Control Form stating the blood was collected
at 5:05 a.m. (Tr., p.9-1 1) The Trooper testified he didn't know what had been done to Kimberly
4
before he requested a blood sample. He didn't know whether the Hospital had already drawn
blood. (Tr., p.19) After the blood sample was drawn, he placed it in the mail to the Crime Lab.
(Tr., p.21)
Kimberly was charged with a violation of R.C. § 4511.19(A)(1)(a), Operating A Motor
Vehicle While Under The Influence of Alcohol, as well as Failure To Control, in violation of
R.C. § 4511.202. On the January 9, 2006, Trooper Walsh received the blood test results. They
indicated.085 grams by weight of alcohol per one hundred milliliters of whole blood. An
additional charge was filed alleging a violation of R.C. 4511.19(A)(1)(b), which prohibits driving
with a blood concentration greater than .08 grams.
Kimberly pled Not Guilty to all three charges. A Motion to Suppress Evidence was filed
on October 27, 2005. It sought to suppress all evidence obtained as a result of the arrest because
the State failed to comply with the two-hour time limit set forth in R.C. § 4511.19(D)(1)(b) and
because State failed to follow the collection procedures set forth by the Ohio Department of
Health Regulations.
An evidentiary hearing was held on the Motion on May 4, 2006. The State presented the
testimony of Trooper Walsh. He was the only witness at the hearing. The Trooper testified he
was dispatched to the scene at 3:36 a.m. and that he wrote 3:34 as the time of the accident:
"because in my experience, the time that you get the call and thetime of the crash, there is a couple of minute delay. The crashactually occurred at a given time and then you are dispatched to it,and that's generally about two minutes". (Tr., p.7)
On cross examination, he testified:
2 Defense Counsel asked Trooper Walsh if he had any statements from those witnesses. Hestated, "I don't have a copy of the crash in front of me right now so I don't know the answer tothat." (Tr., p.13)
5
There was an accident that you investigated, is that correct?
A. Yes.
Q. Do you know what time - it was a one-car accident, correct?
A. Right.
Q. The vehicle went off the road and rolled over?
A. Yes, it did.
Q. Do you know what time that occurred?
A. I received the call at 3:36.
Q. Do you know what time that car rolled off the highway?
A. Prior to 3:36.
Q. Do you know when prior to 3:36 it rolled of the highway?
A. I wasn't there, so exactly, no, I don't.
Q. Do you know, or can you testify with any degree of certainty, as to whetherthis blood was drawn at 5:05 a.m. from Kimberly Rauscher was drawnwithin two hours of the time that car left the highway?
A. I received the call at 3:36. The blood was drawn at 5:05." (Tr., p.11)
Trooper Walsh testified that the 911 call goes to the Sheriff's Office where someone calls the
State Patrol Post where a dispatcher contacts the Trooper. (Tr., p.7) He believes the accident
occurred "shortly before 3:36" because he listened to the 911 call and Kimberly stated she had
just crashed her car. (Tr., p.12, 13) Trooper Walsh admitted that he could not say how long
Kimberly was at the crash scene prior to calling 911. (Tr., p.18)
On May 11, 2006, the trial court denied the Motion To Suppress. See Ruling on Motion,
p.1, attached to Appellant's Brief as Appendix C. On August 2, 2006, Kimberly withdrew her
plea of Not Guilty and entered a Plea of No Contest to violation of R.C. 4511.19(A)(1)(b). The
charges based on R.C. 4511.19(A)(1) and R.C. 4511.202 were dismissed. The Trial Court found
her guilty and sentenced her to thirty (30) days in jail and a fine of $1,000.00 with twenty-seven
(27) days of the jail time and $600.00 of the fine would be suspended upon the condition that she
6
attend a three-day jail alternate course and abide by the laws of the State of Ohio and the
subdivisions for a period of one year. In addition, she would have to pay the court costs and a
six-month suspension of her driver's license was invoked. See Judgment Entry, p.1, attached to
Appellant's Brief as Appendix B.
On August 2, 2006, Kimberly filed her Notice of Appeal with the Third District Court of
Appeals. She assigned the following errors:
1. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
IN DENYING HER MOTION TO SUPPRESS THE BLOOD-ALCOHOL TEST
RESULTS WHEN THERE WAS NO EVIDENCE TO SHOW THAT THE
BLOOD WAS WITHDRAWN WITHIN TWO HOURS OF ANY ALLEGED
OPERATION OF A MOTOR VEI-IICLE.
2. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT WHEN IT FAILED TO SHOW SUBSTANTIAL COMPLIANCE
WITH R. C. 4511.19(D)(1) AND THE OHIO ADMINISTRATIVE CODE
CHAPTER 3701-53 IN OVERRULING APPELLANT'S MOTION TO
SUPPRESS THE BLOOD ALCOHOL TEST RESULTS.
On July 2, 2007, the Third District affirmed the decision of the trial court. See State v.
Rauscher, (July 2, 2007) Marion App. No. 9-06-42, 2007-Ohio-3339, attached to Appellant's
Brief as Appendix A. The Court of Appeals found that there was "competent credible evidence
to support the trial court's finding that Rauscher's blood was drawn at 5:05 a.m. and that the
earliest documented time for the violation was 3:34 a.m." Rauscher, (July 2, 2007) Marion App.
No. 9-06-42, 2007-Ohio-3339, ¶13. The Court opined that the trial court reasonably inferred "the
phrase `just had an accident' indicates that the 911 call was very near in time to the accident."
Id. Because Kimberly failed to provide any other explanation for her statement, it affirmed the
7
trial court's ruling that the blood was withdrawn within two hours of the alleged violation
pursuant to R.C. 4511.19.
The Court of Appeals also found that the State had established substantial compliance
with the Ohio Administrative Code regulations. State v. Rauscher, (July 2, 2007) Marion App.
No. 9-06-42, 2007-Ohio-3339, attached to Appellant's Brief as Appendix A The Court of
Appeals found substantial compliance was established by Trooper Walsh's testimony that a
person he believed to be a nurse drew the blood, that person used an iodine swab which
contained no alcohol, and that the blood was inserted into a sealed vial which contained an
anticoagulant. The Court of Appeals concluded the trial court did not err in denying Kimberly's
motion to suppress. From this judgment, Kimberly now appeals.
ARGUMENT IN SUPPORT OF PROPOSTIONS OF LAW
PROPOSITION OF LAW NO. I: THE STATE DOES NOT COMPLY WITHR. C. 4511.19 WHEN IT FAILS TO
OBTAINA BLOOD SAMPLE WITHIN THE TIME LIMIT PRESCRIBED BYSECTION 4511.19(Df (1) (b).
This issue was raised at the trial court by a Motion to Suppress Evidence. Appellate
review of a motion to suppress presents a mixed question of law and fact. When considering a
motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best
position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills
(1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. An appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence. State v. Fanning (1982), 1
Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. The appellate court must then independently
8
determine, without deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard. State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539.
DUI offenses are prosecuted within a statutory and regulatory framework. State v.
"In any criminal prosecution *** for a violation of division (A) or (B) ***, thecourt may admit evidence on the concentration of alcohol * * * in the defendant'swhole blood, blood serum or plasma, * * * at the time of the alleged violation asshown by chemical analysis of the substance withdrawn within two hours of thetime of the alleged violation." R.C. § 4511.19(D)(1)(b).3
The statute also provides: "The bodily substance withdrawn shall be analyzed in accordance with
methods approved by the director of health ***." Id. Ohio Courts of Appeals have
"characterized R.C. 4511.19 as a legislatively created exclusionary rule analogous to the
exclusionary rule established in Weeks v. United States." State v. Edwards, (December 7, 2005),
107 Ohio St.3d 169, 2005-Ohio-6180 ¶10, internal citations omitted. Thus, it bars the
introduction of evidence that has been seized without compliance with the statute and the
regulations.
In this case, the State offered nothing but speculation that Kimberly operated her motor
vehicle within two hours of her blood sample being drawn. The Trooper could have obtained
evidence from her when he interviewed her. But, he did not. The State could have produced the
testimony of witnesses who saw or heard the crash. But, it did not. This is not a novel situation:
3 The statute was amended effective Apri14, 2007. The statute now provides, "In any criminalprosecution * * * for a violation of division (A) or (B) * * * the court may admit evidence on theconcentration of alcohol * * * in the defendant's whole blood * * * at the time of the allegedviolation as shown by chemical analysis of the substance withdrawn within three hours of thetime of the alleged violation." R.C. § 4511.19 (D)(1)(b), emphasis added.
9
"It is generally known that the issue of whether a specimen was collected withintwo hours of the alleged violation is most likely to arise in accident scenarios,where the operation of the vehicle was not witnessed by police. If the time of theviolation is not affrnnatively established by the state, suppression of the testresults for purposes of R.C. 4511.19(A)(2), (A)(3), (A)(4),.... In accident cases,the time of operation might be otherwise established by witnesses to the accidentor even through the defendant's own admissions. Circumstantial evidence alonesuch as allegedly fresh tire marks...or even leaking radiator fluid...usually will notaffirmatively prove compliance with the two-hour requirement. However, if theState is able to conclusively show that the accident and corresponding vehicleoperation could not have occurred more than two hours earlier than the time of thespecimen collection, it has met the burden. For example, witnesses passing by theidentical location of the accident prior to its occurrence, but within two hours ofthe time the specimen was collected, might testify that at the time they were at thescene, there was no accident and the defendant's vehicle was not present " Ohio
Driving Under The Influence Law, Judge Mark P. Painter, Section 7.4, Page 111.
Here, the State simply did not provide competent evidence probative of compliance. The Motion
to Suppress should have been granted.
PROPOSITION OF LAW No. II.' THE STATE DOES NOT SUBSTANT14LLY COMPLY WITH OHio ADM.
CODE 3701-53-05 WHEN IT FAILS TO PROVE THE BLOOD SAMPLE WAS DRAWN IN COMPLIANCE
WITH THE REQUIREMENTS PRESCRIBED BY THE DEPARTMENT OFHEALTfL
An appellate court must consider whether the facts in the instant case demonstrate
substantial compliance with the Department of Health regulations under a de novo standard of
review. State v. Burnside, (October 22, 2003) 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.
Resolution of this issue requires an examination of the blood-testing procedures in Ohio
Adm.Code 3701-53-05.
R.C. § 3701.143 charges the director of health with promulgating regulations that will
ensure the accuracy of blood-alcohol test results in an R.C. 4511.19 prosecution. Because a
conviction under the "per se" offenses in R.C. 4511.19 turns almost exclusively on the result of
such a test, accurate testing is critical. R.C. 4511.19(D) governs the admissibility of alcohol-test
results. It provides that a defendant's blood, breath, or urine "shall be analyzed in accordance
10
with methods approved by the director of health by an individual possessing a valid permit issued
by the director of health pursuant to section 3701.143 of the Revised Code." R.C. 3701.143
requires the director of health to "determine, or cause to be determined, techniques or methods
for chemically analyzing a person's blood." Pursuant to the statute, the Director of Health
promulgated the following alcohol-testing regulations in Ohio Adm. Code 3701- 53-05:
"(A) All samples shall be collected in accordance with section 4511.19, orsection 1547.11 of the Revised Code, as applicable.
"(B) When collecting a blood sample, an aqueous solution of a non-volatileantiseptic shall be used on the skin. No alcohols shall be used as a skin antiseptic.
"(C) Blood shall be drawn with a sterile dry needle into a vacuum container with asolid anticoagulant, or according to the laboratory protocol as written in thelaboratory procedure manual based on the type of specimen being tested.
"(D) The collection of a urine specimen must be witnessed to assure that thesample can be authenticated. Urine shall be deposited into a clean glass or plasticscrew top container which shall be capped, or collected according to thelaboratory protocol as written in the laboratory procedure manual.
"(E) Blood and urine containers shall be sealed in a manner such that tamperingcan be detected and have a label which contains at least the followinginformation:
"(1) Name of suspect;
"(2) Date and time of collection;
"(3) Name or initials of person collecting the sample; and
"(4) Name or initials of person sealing the sample.
"(F) While not in transit or under examination, all blood and urine specimensshall be refrigerated."
The purpose of these regulations is to ensure the accuracy of the alcohol-test results. State v.
Burnside, (October 22, 2003) 100 Ohio St.3d 152, 2003-Ohio-5372, ¶21, citing State v.
This Court has held that rigid compliance with the alcohol-testing procedures in the Ohio
Administrative Code is not a prerequisite to the admissibility of alcohol-test results. Burnside
¶22, citing State v. Steele (1977), 52 Ohio St.2d 187, 6 0.O.3d 418, 370 N.E.2d 740 (the failure
to observe the subject for a "few seconds" while the officer exited and walked around his patrol
car did not render the test results inadmissible.) This Court has also held, absent a showing of
prejudice to a defendant, the results of a urine-alcohol test administered in substantial compliance
with Ohio Adm.Code 3701-53-05 are admissible. State v. Plummer (1986), 22 Ohio St.3d 292,
22 OBR 461, 490 N.E.2d 902, at syllabus (a three-to-four-hour interval without refrigeration did
not render the test results inadmissible). Most recently, this Court held In State v. Burnside,
(October 22, 2003) 100 Ohio St.3d 152, 2003-Ohio-5372, this Court held, "The state does not
substantially comply with Ohio Adm. Code 3701-53-05 when it fails to use a solid anticoagulant
in a blood test." The Court observed, "Our conclusion that the state must establish substantial
compliance rather than strict compliance, however, does not relieve the state of its burden to
prove compliance with the alcohol-testing regulations, but rather defines what compliance is."
State v. Burnside, (October 22, 2003) 100 Ohio St.3d 152, 2003-Ohio-5372, ¶27
Here, the State produced no medical personnel. The Trooper's testimony was only a
guess that the person drawing the blood was the "nurse", that a non-alcoholic antiseptic was
used, that a sterile needle was used, that there was a chain of custody presented, that it was
analyzed in accordance with the Department of Health regulations, and that while not in transit, it
was refrigerated. The record indicates that the only thing he can testify about was that he gave
the person drawing the blood a package swab identified as iodine, that the blood was put into a
gray container and signed by the person and later shipped by him to the laboratory. The State
failed to produce the person who collected the specimen and the person who analyzed it.
12
CONCLUSION
For the reasons discussed above, this case involves matters of public and great general
interest and a substantial constitutional question. The appellant requests that this court accept
jurisdiction in this case so that the important issues presented will be reviewed dn the merits.
Respectfully submitted,
^e-^ ^^^. ^ ^'''--9Robert E. Wilson (0015226) by K in 1 . Collins (0029811)WILSON & KOCHHEISER CO., L.P.A.132 S. Main St.Marion, Ohio 43302Telephone: (740)387-0970Fax: (740) 387-3406ATTORNEY FOR APPELLANTKIMBERLY RAUSCHER(Counsel of Record)
PROOF OF SERVICE
The undersigned hereby certifies that a true copy of the foregoing Memorandum InSupport of Jurisdiction was served upon Jason D. Warner, Assistant Law Director, at his officelocated at 233 West Center Street, Marion, Ohio 43302 by ordinary U.S. Mail, postage prepaid,this 15'h day of August, 2007.
Robert E. Wilson (0015226) b Kevin P. Collins (0029811)ATTORNEY FOR APPELLANTKIMBERLY RAUSCHER(Counsel of Record)
13
APPENDICES
E. Court of Appeals Opinion in State v. Rauscher, (July 2, 2007) Marion App. No. 9-06-42,2007-Ohio-3339.
F. Journal Entry in State v. Rauscher, (July 2, 2007) Marion App. No. 9-06-42, 2007-Ohio-3339.
G. Ruling on Motion, State v. Rauscher, Marion Municipal Court, filed May 11, 2006.
H. Journal Entry, State v. Rauscher, Marion Municipal Court, filed August 2, 2006.
14
MUNICIPALCOURT rHUt n`07/30/2007 10:18 7403825274
COURT OF APPEALSTHIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF 01iII0,
kL.A.INTIFF-APPELLEE,
v.
HIMBERLY ItAUSC.HER,
DEFENDANT-APPELLANT.
WURTW^
JUL - $ 2007
CASE NO. 9-06-42
OPINION
CHARACTER OF PROCEEDINGS: Crinc►inal Appeal from MunicipalCourt
JUDGMENT: Judgment Affiirmed
DATE OF JUDGIVIENT ENTRY: July 2, 2007
ATTORNEYS:
ROBERT E. WILSONAttorney at LawReg.#0015226132 South Main StreetMarion, Ohio 43302For AppeIIant
JASON D. WARNERAsst. Law DirectorReg. #0066451233 West Center StreetMarion, Ohio 43302For Appellee
MUNICIPALCDURT07/30/2007 10:18 7403825274
Case No. 9-06-42
PRESTON, J.
{¶1} Defendant-appellant Kimberly Rauscher appeals the judgrnent of the
Marion County Municipal Court.. For the reasons that follow, we affirm the trial
court.
{12} On September 2, 2005, Rauscher ca.Ued 911 to report that she had
"just" been in an accident. The Maxion Post of the Highway Patrol dispatched
Trooper Walsh to the single car accident at approximately 3:36 a.m. Rauscher
was taken to the Marion Hospital. At the hospital, Trooper Walsh read Rauscher
an implied consent form and Rauscher consented to a blood alcolxol test. Trooper
Walsh then supplied a blood Icit provided by the Highway Patrol, and a nurse
collected Rauscher's blood. Trooper Walsh filled out the property control form
which indicated that the blood was collected at 5:05 a.m., and he mailed the blood
sample.
{13} Rauscher was charged with operating a vehicle while under the
inftuence of alcohol in violation of R.C. 4511.19(A)(1)(a), and failure to control in
violation of R.C. 4511.202. After Trooper Walsh received the blood test result of
.085 grams by weight of alcohol per one hundred uvlliliters of whole blood, he
also charged Rauscher with operating a vehicle with a prohibited concentration of
alcohol, in violation of R.C. 4511.19(A)(1)(b).
2
07/30/2007 10:18 7403825274
Case No. 9-06-42
MUNICIPALCUUKi
(54) Rauscher pled not guilty to the charges. Rauscher then filed a
motion to suppress the blood alcohol test. The trial court subsequently denied the
znotion.
{¶5} On August 2, 2006, Rauscher pled no contest with a stipulated
finding of guilty to the violation of R.C. 4511.19(A)(1)(b), and the remaining
charges were dismissed. The trial court found Rauscher guilty. The trial court
sentenced Rauscher to thirty days in jail and a fine of $1,000 with twenty seven
days of the jail sentence and $600 of the fine suspended if the defendant attends a
three day jail alternate course and abides by the laws of the State of Ohio and its
subdivisions for one year. The trial court also ordered a six month drivers license
suspension and court costs.
{1[6} It is from the trial court's judgment denying Rauscher's motion to
suppress that Rauscher appeals and sets forth two assignments of error for our
review.
ASSIGNMENT OF ERROR NUMBER I
THE TRI,AtL COURT ERRED TO THE PREJUDICE OFDEFENDANT IN DENYING HER MOTION TO SUPPRESSTHE BLOOD-.AALCOHOL TEST RESULTS WHEN THEREWAS NO EVIDENCE TO SHOW THAT THE BLOOD WASWITHDRAWN WITHIN TWO I'[OURS OF ANY ALLEGEDOPERATION OF A MOTOR VEHICLE.
{17} In her first assignment of error, Rauscher argues that in order for the
blood alcohol test results to be admitted the blood must be drawn, within two houzs
3
07/30/2007 10:18 7403825274
Case No. 9-06-42
MUNICIPALC:UUK i
of the accident. Rauscher argues the state failed to preesent evidence that the blood
was withdrawn within the time requirements, and thus, the trial court erred in
denying her rrAotion to suppress.
{18} "Appellate review of a motion to suppress presents a mixed question
of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, at ¶S. When deciding a suppression motion, the trial court assumes the
role of the trier of fact, and thus, the trial court is in the best position to evaluate
the evidence and the credibility of witnesses. Td., citirtg State v. Mills (1992), 62
accept the trial court's findings of fact if they are supported by competent, credible
evidence." Id., citing State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437
N.E.2d 583. However, an appellate court must review the trial court's conclusions
of law under a de novo standard and determine "whether the facts satisfy the
applicable legal standard." Id., citing State v. Mc.Narnara (1997), 124 Ohio
App.3d 706, 710, 707 N.E.2d 539.
{Q9} R.C.4511.19(D)(1) provides,
In any criniinal prosecution * * * for a violation of division (A)or (B) ***, the court nxay admit evidence on the concentrationof alcohol * in the defendant's whole blood, blood serum orplasma, *** at the time of the alleged violation as shown bychemical analysis of the substance withdrawn within two hours
4
MUNICIPALCOURT rHUt n°07/30/2007 10:18 7403825274
Case No. 9-06-42
ol'the time of the alleged violation."
R.C. 4511.19)D)(1).'
{¶10} In the present case, the trial court found that Itauscher made a 911
call at 3:36 a.m. on September 2, 2005. During the 911 call, Rauscher stated that
she "just had an accident." The trial court further found that Trooper Walskt was
dispatclled to the scene and that he noted the time of the incident as 3:34 a.m.
because he allowed for an approximats gap of two nainutes for the call and for
dispatch to contact him. The trial court determined that the earliest time
documented for the violation was 3:34 a.m. arnd that Rauscher's blood was
collected at 5:05 a.m. Accordingly, the trial court found that the blood was
collected within the two hour limit provided by statute.
{111} After reviewing the record, we find that there is competent, credible
evidence to support the trial court's determination. Trooper Walsh testif'ied that he
was dispatched to the accident and that Rauscher was the driver of the vehicle.
The 911 tape reveals that .Rauscher called 911 and stated that she had "just had an
accident." Trooper Walsh testified "(Itauscher) said she just crashed her car and
that call came in just before 3:36." There was no indication that 12auscher lost
' The statute has been amended effective April 4, 2007. The statute now provides, '7n any criminalprosecution *"` for a violation of division (A) or (B) *•* the court may admit evidence on theconcentration of alcohol *•• in the defendant's whole blood *'' at the time of the alleged violation asshown by cbemical analysis of the substance withdrawn within three hours of the time of the allegedviolation." R.C. 4511.19 (Dx1)(b), emphasis added.
Accordingly, we fmd the trzal court did not err in ruling that the blood was
withdrawn within two hours of the alleged violation pursuant to R.C. 4511.19.
{114} Rauscher's first assignment of error is ovezxnled.
ASSIGNMENT OF ERROR NU1V1$E12 II
TIiE TRIAL COURT ERRED TO THE PREJUDICE OF THEDEFEND.ANT WHEN IT FAILED TO SHOW SUBSTANTIALCO1bIPLIANCE WIT$ R.C. 4511.19(D)(1) AND THE OHIOADMIlVTSTRATIVE CODE CHAPTER 3701-53 INOVERRULING APPELLANT'S MOTION TO SUPPRESSTHE BLOOD ALCOHOL TEST RESULTS.
{¶I5} In her second assignnaent of error, Rauscher argues that the
prosecution failed to provide evidence to show substantial compliance with the
blood testing requiremetlts. Specifically, Rauscher argues that the officer's
testimony was only a guess that the person drawing the blood was a"nurse", that a
non-alcoholic antiseptic was used, that a sterile needle was used, that there was a
chain of custody present, that the sample was analyzed in accordance with the
Department of blealth regulations, and that when the sample was not xn transit that
it was refrigerated.
{116} The prosecutiou has the burden of proving substantial compliance
with the regulations in the Ohio Administrative Code. State v. Glenn, 3d Dist. No.
13-04-15, 2004-Ohio-7038, at ¶10, citing State v. Plummer (1986), 22 Olzio St.3d
292, 294, 490 N.E.2d 902. The Ohio Supreme Court has limited the substantial
conapliamce standard in Plummer to "excusing only errors that are clearly de
7
07/30/2007 10:18 7403825274
Case No. 9-06-42
MUNICIPALCUUKI
miniznis." Burnside, 2003-Ohio-5372, at ¶34; Glenn, at ¶10. Once the
prosecution establishes substantial compliance, the burden shifts to the defendant
to demonstrate that the defendant is prejudiced by anything less than strict
conapliance. Burnside, 2003-Ohio-5372, at ¶24, citin.g State v. Brown (1996), 109
Ohio App.3d 629, 632, 672 N.E.2d 1050.
{¶17} At the beginning of the suppression hearing the following discussion
occurred:
Mr. Wilson: The issues, Your Honor, in this case center aroundseveral tbings. Whether the two-hour time liruit was adhered toas required by the statute. In other words, whether the bloodtest, if the blood test, in this case, was taken witbin two hours ofthe time of the aUeged driving and the second aspect of it iswhether it was collected properly.The Court: so those are the two main issues?Mr. Wilson: Those are the two maiu issues.
{118} In addition, the following discussxon occurred at the end of the
suppression hearing regarding the issues being challenged:
Mr. Wilson: * * * I guess we may ask the Record to stay open.My understanding is we are here on whether the blood wascollected in two hours. (Inaudible) was it collected correctly.There's been some questions about when it was received in thelab and so fortb and if we need to present evidence on that, I'mgoing to have to get somebody from the lab and I did notarrange for that (inaudible).The Court: Mr. Wilson, at the beginning of this Hearing, I havedown in my notes that it's the two-hour limit collection of theblood test and whether it was collected properly. Are youtaking this further into the lab?Mr. Wuson: Wheu it was received In Columbus and the analysisdown in Columbus- - no (inaudible).
The Court: Okay, so you're just leaving it with the officer'scollection and the trooper's collection?Mr. Wilson: Yeah, and with that we rest, Your Honor.
(119) At the suppression heaxing, ltauscher's attorney specifically limited
the issues to whether the blood was collected within two hours of the incident and
whether the officer properly collected Rauscher's blood. Accordingly, we find the
issues regarding calibration, chain of custody, aud the analyzing of the blood
sample have been waived for purposes of appeal.
(120) Under R.C. 4511.19(D)(1), "on,ly a physician, a registered nurse, or
a qualified technician, chemist, or phlebotomist shall withdraw blood for the
purpose of determining the alcohol **°° content of the whole blood, blood serum,
or blood plasma." Further, Ohio Administrative Code 3701-53-05 provides,
"(B) When collecting a blood sample, an aqueous solution of anou-volatile-antiseptic shall be used on the skin. No alcoholsshall be used as a skini antiseptic.
(C) Blood shall be drawn with a sterile dry needle into a vacuumcontainer with a solid anticoagulant, or according to thelaboratory protocol as written in the laboratory proceduremanual based ou the type of specimen being tested.
***
(E) Blood * * * shall be sealed in a manner such that tamperingcan be detected and have a label which contains at least thefollowing information:
(1) Name of suspect;
(2) Date and time of collection;
9
MUNICIPALCOURT rH^t 1'07/30/2007 10:18 7403825274
Case No. 9-06-42
(3) Name or inltials of person collecting the sample;and
(4) Name or initials of person sealing the sample;
(F) Whi1e not in transit or under egam.iuation, a,ll blood ***shaU be refrigerated.
{121} At the suppression hearing, Trooper Walsh tesdfied that he opened a
blood kit and had the nurse draw the blood and insert the blood into a vial.
Trooper Walsh further testified that the blood kit had an iodine swab, that he saw a
nurse use an iodine swab, and that there was no alcohol in the iodine swab.
According to Trooper Walsh's testimony, there was an anticoagulant already in
the sealed tube. Trooper Walsh further testified that after the nurse draws the
blood "[t]he nurse signs off on a stopper cap sticker, an evidence sticker. The
nurse who drew the blood, what time it was drawn, and he hands it to me."
{122} Furthermore, Trooper Walsh testified that the blood was collected at
5:05 a.na., that he packaged the sample in accordance with the instructions in the
blood kit, that he mailed the paclcage to the OSP Crime Lab, and that he put the
blood sample in the mail at 7:15 a.m. The Ohio Adrninistrative Code only
requires the blood to be refrigerated when the blood is not in transit or being
analyzed. See Ohio Admirustrative Code 3701-53-05(F). The two hours and ten
minutes that elapsed between the time the blood sample was collected and the
sample was placed in transit constituted substantial compliance with the Ohio
10
MUNICIPALCOURT rHun lc07/30/2007 10:16 7403825274
Case No. 9-06-42
Administrative Code. See Village of Gates Mills v. Wazbiraski, 8th Dist. No.
81863, 2003-Ohio-5919, at ¶54 (holding that the failure to refrigerate a blood
sample for three hours constituted substantial compliance).
{¶23} The trial court found that the Trooper observed the nurse collecting
Rauscher's blood into the kit the Trooper ktad supplied. The trial court fiuther
found that an anticoagulant was in the tube prior to the collection, and the nurse
sealed and labeled the tube. The trial court also found that the Trooper packaged
the sample and mailed the sample that same day.
{124} After reviewing the record, we find that the prosecution has
established substantial compliance with the Ohio Administrative Code regulations.
Trooper Walsh testified that a nurse drew the blood, the nurse used an iodine swab
which contained no alcohol, and that the blood was inserted into a sealed vial
which contained an anticoagulant. The Trooper furtlter testitzed that the blood
sample was labeled, packaged, and placed in transit within two hours and ten
minutes after the blood was withdrawn. Moreover, Rauscher has failed to show
that she was prejudiced by anything less than strict compliance. Accordingly, we
hold that the trial cnurt did not err in denying Rauscher's motion to suppress.
{1[25} Rauscher's second assignment of error is overt'uled.
requires that when collecting blood, an aqueous solution of non-volatile antiseptic (no
alcohol) shall be used on the skin; blood shall be drawn with a sterile dry needle into a
vaccum container with a solid anticoagulant; blood containers shall be sealed in a manner
such that tampering can be detected and be labeled with the name of the suspect, the date
and time of collection and the name or initials of the person collecting or sealing the
sample. In this regard, the nurse was observed by the Trooper to collect the Defendant's
blood into the kit he supplied. The Trooper testified that the anticoagulant was in the
tube prior to the collection and that the nurse sealed the tube and labeled it accordingly.
The Trooper further testified to his packaging the sample and mailing it that same day,
thus immediately putting it into transit. This is complies with the Ohio Revised Code and
the Ohio Department of Health's regulations.
It is therefore the ORDER of this Court that Defendant's Motion to Suppress is
denied and the evidence will be admitted. The case will proceed to trial.
ITIS SO ORDERED.
Assistant Marion City Law DirectorRobert Wilson, Attorney for Defendant
J `fC) CLiENTs'}^`TO A7TY
...4__....,..^.;^^F:'"i,^'"'_ . ..
MARION MUNICIPAL COURT, Alm'YARI®1oT9 OHIO
State of Ohia/City of Marion . CASE NO.
Plaintiff
Defendant
OFFENSE: 44 1- ll/ /^
EOar-,d[JDGIVZNT ENTRY
[_Defiffd-ant was advised of the charge(s) and possible maximum ponatties.
Defendant acknowledged receipt of a copy of the Complaint.
j] /75efendant entered a plea of Guilty.Defendant entered a plea of No Contest, with a stipulated finding of Guilty.
[ Defendant was advised of all rights as required by Traf°nc Rule 10(D) and/or Criminal Rule I 1(E), and the Courtdetermined that Defendant's waiver of all rights was made knowingly, intelligently and vohustarily in compliance withState v, Watldns 99 Ohio St. 3d 12, 2003-Ohio-2419.
[] fendant waived his/her right to counsel.[ Defendant was repres:.ro.ted by counsel.
^f daat was given opportunity to speak before senteaacing.
[ Defemdant has stated that sh s a ci&m of the United States (ORC 2943.031).
() Jn cases where original charge was Assault, Domestic Violence, Aggravated Menacing, Menacing, or Inntimidation of aCrime Victim or Witaess, the Prosecutor has failed to confer with the victim, because the Defendant pled at arraignment,
' [ Plea acospted. [ f -'Finding of (3uilty
=[ ] Defindant is indigent[ ] Finding ofNot Guilty
The Court having considered the principles of sentenoing outlnmed in R.C. 2929.21 and the factors set forth in R.C. 2929.22,
IP IS HEREBY OIdDERED, ADJUDGED AND DECREED THAT THE FOLp.,07YINJ^^DIAI.TYES BE'd167P®SED:
days (Suspended^ Credit Enforced 3 ,Jail time to be served CONCLIRRENT/CONSECTPIVE to
The Court finds that Defendant has the ability to pay:
hi accordance with O.R.C. 2929.28(D), judgmeat is hereby rendered against Defendaot and in favor of the appropriate politicalsubdivision or legal enti6y for the fiuanoial sanctions imposed herein. ^ X^^ s. ^ ^^
7pthroz'P,h^ ,
OPEEYtAT®R'S LICENSE: Suspended for a period of Effective "[ ) Limited privileges granted beginning •[] Defendant must provide proof of and maintain required insurance (FRA) for limited privileges to be valid; '[] Defendaut must make timely and consistent payments on fines, cewt costs, and 3a:Y Atternate Frogram fm for
limited privileges to be vatid;[] Defendant must pay all fines and court costs in full by for limited privileges to be valid;
Defendant must only opeiate motor vehicles that have restricted license plates for limited privileges to be valid.
or because the victim, though notified, failed to appear for scheduled hearing.
70:/ / PROBATION dEPARi[^ENT^
.[i]/ C®A^IRiII1ViTY C®NTR®d. SANCTIyl31^S:( year(s), subject to the following terms and co oas:
[Ir^dant shall abide by the laws of the State of Ohio and its subdivisions.[rJ' De^ndant shall attend and comptete a court-approved Jail Alternate Program and any follow-up counseling that may
be ordered.[] Defandant shall take the Domestic Assessment Test and shall attend and complete any program of intervention,
tresbnent, or counseling ihat may be ordered.Defendant shall obtain a assessment at Marion Area Counseling Centeror any other state•certified agency and shall attend and complete any follow-up counseling that may be ordered.Defendant sball makerestitutiar as documented for the Municipal Court Probation Department in the amount of$ (plus applicable service charges, if any) toforand shall show proof to the Municipal Court Probation by Payments shall be made at therate of at least $ per until paid in fiilL
[] Defendant sball make restitution in an amount to be documented for the Iviunicipal Court Probation Deparlment for thecosts of prosecution incurred by any law enforoment agency involved in the investigation of this matter, at the rate ofat least $ per until paid in fu1L
[] In aceordance with O.R.C. 2929.2^(D), judgment is hereby rendered against Defendant and in favor offor the restitution ordered herein.
[] Defendant shall obey aU terms and conditions of a supervised probation until the supervised probation is completed.[] Defendant shalt perform hours of community service work.[ J Defendant shall stay away from and have no contact or communicatioi•< of any kind, in any manner with
except as follows:[] Defendant shall stay away from[ l Defendant shaIl complete a state-certified program of alcohol/drug counseling.
Defendant shall not conswne or possess any alcoholic beverage.[ 7 Defendant shall not consome or possess any illegal drug and/or drug paraphernaGa.
Defendant shail not operate any motor vehicle without a valid Ohio operator's license.[] Defendant shall not operate any motor vehicle witSout required and proper insurance.[ J Defendant shall comply with all requ9rements of Ohio Revised Code § 955.22 with regard to the proper confinement
and insurance of the dog(s) subject to this case and any vicious dog(s) which he/she owns, keeps or harbors. Proof ofsame shall be shown or provided to the Marion County Dog Warden within thirty (30) days. If Defendant fails toprovide said prooi said dog(s) are hereby ordered forfeited to the Marion County Dog Warden.
f l Defendant shall strictly comply with all terms and conditions of any protection order casrrelxtly pending in which he/sheis Hsted as the Respondent unless or until said order is officially modified or terminated by the court.
[] Defendant shall comply with any orders or requirements of Marion County Children Services and/or the MarionFamily Court relative to the children involved in the within case.
![Fornshell v. Roetzel & Andress, L.P.A. · [Cite as Fornshell v. Roetzel & Andress, L.P.A., 2009-Ohio-2728.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL](https://static.documents.pub/doc/80x56/5c4a4f0793f3c31f4f7ce19c/fornshell-v-roetzel-andress-lpa-cite-as-fornshell-v-roetzel-andress.jpg)
