[Cite as State v. Hardesty , 2020-Ohio-246.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2018CA00178 RICHARD HARDESTY Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2017CR2320

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: Januar y

27, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t JOHN D. FERRERO D. COLEMAN BOND Prosecutin g Attorne y 116 Cleveland Avenue, N.W. Stark Count y , Ohio 600 Court y ard Centre Canton, Ohio 44702 KRISTINE W. BEARD Assistant Prosecutin g Attorne y Appellate Section 110 Central Plaza, South, Ste. #510 Canton, Ohio 44702-1413Stark Count y , Case No. 2018CA00178 2
Hoffman, P.J. {¶1} Appellant Richard Hardesty appeals the judgment entered by the Stark County Common Pleas Court convicting him following his pleas of no contest to four counts aggravated vehicular homicide, two counts aggravated veh icular assault, two counts vehicular assault, operating a vehicle under the influen ce of alcohol, driving under suspension, and driving under OVI suspension, and sentencing hi m to an aggregate term of incarceration of sixteen years. Appellee is the state of Oh io STATEMENT OF THE FACTS AND CASE {¶2} At approximately 10:15 p.m. on November 17, 2017, Officer Mike Manos of the Massillon Police Department was dispatched to the scene of a serious automobile accident on State Route 21 at Walnut Road SW, in the city of Ma ssillon. Appellant was identified as the operator of a Jeep Wrangler w hich caused the rear-end collision, resulting in the death of one person and serious injuries to tw o other individuals. According to witnesses at the scene, Appellant rammed into stop ped vehicles at a high rate of speed without applying his brakes. Officer Manos did n ot observe skid marks or note any other evidence Appellant took evasive action prior to slamming into the vehicle in front of him. {¶3} Officer Manos spoke to Appellant while Appellant remained in hi s vehicle. The officer noted Appellant’s eyes were glassy and bloodshot, b ut did not initially smell alcohol. However, Appellant’s airbag had deployed producing a chemical smell, in addition to the other chemical odors from the crash itself, and the officer had been ill. The officer felt Appellant could be driving while impaired due to t he condition of Appellant’s eyes, the severity of the crash, and Appellant’s failure to app ly his brakes to try to avoid the collision.Stark Count y , Case No. 2018CA00178 3 {¶4} Officer Manos intended to administer three field sobriety tests : the horizontal gaze nystagmus test, the one-leg stand test, and the walk and turn test. During the testing, Officer Miguel Riccio joined Officer Manos. Offic er Riccio noted a strong odor of alcohol about Appellant. When Officer Riccio asked Appellan t if he had anything to drink, Appellant responded he had one beer. {¶5} After administering the horizontal gaze nystagmus test, Officer Manos indicated Appellant demonstrated all clues of impairment in bot h the right and left eyes. When the officer attempted to administer the one-leg stand test , Appellant was only able to lift his leg a few inches and could not hold the position lo nger than a second. Appellant further was unable to count as requested during the test. Appe llant was unable to follow the instructions for the walk and turn test, and started walkin g before instructed to begin the test. {¶6} Appellant was transported to the hospital by ambulance, where h e was met by Officers Manos and Riccio. Officer Manos read the BMV Impli ed Consent Form 2255 to Appellant before requesting a blood and urine test. Appella nt acknowledged he understood, and he signed the consent form. However, the origi nal consent form was misplaced, and Officer Manos had only photocopied the front of the form. {¶7} Appellant’s blood was collected for testing by a hospital emplo yee, and the officers personally observed Appellant provide a urine sample i n the collection cup provided. {¶8} Appellant was indicted by the Stark County Grand Jury on the el even counts noted, supra. He filed a motion to suppress, including argumen ts he was questioned in violation of Miranda; the officers failed to conduct field sobr iety tests in substantialStark Count y , Case No. 2018CA00178 4 compliance with the National Highway Traffic Safety Administrat ion (NHTSA) standards; he did not voluntarily consent to providing blood and urine sam ples, and the doctrine of implied consent is inapplicable because he was not under arrest at the time of testing; and his blood and urine samples were not collected, tested and stored in substantial compliance with the Ohio Administrative Code. {¶9} Following evidentiary hearings conducted over several days, the trial court suppressed the results of the horizontal gaze nystagmus test. The trial court overruled the remainder of Appellant’s motion to suppress. {¶10} Appellant changed his plea to no contest to all eleven counts o f the indictment, and was convicted and sentenced to an aggregate ter m of incarceration of sixteen years. It is from the November 30, 2018 judgment of co nviction and sentence Appellant prosecutes this appeal, assigning as error:

I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS ALL OF THE FIELD SOBRIETY TESTS BECAUSE THE STATE FAILED TO SATISFY ITS BURDEN TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE TESTS WERE ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH THE TESTING STANDARDS FOR ANY RELIABLE, CREDIBLE, AND GENERALLY ACCEPTED FIELD SOBRIETY TESTS THAT WERE IN EFFECT AT THE TIME THE TESTS WERE ADMINISTERED. II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS ALL EVIDENCE STEMMING FROM THEStark Count y , Case No. 2018CA00178 5

COLLECTION AND TESTING OF THE APPELLANT’S BLOOD AND URINE FOR PURPOSES OF PROVING A VIOLATION OF R.C. 4511.19 BECAUSE THE STATE FAILED TO SUBSTANTIALLY COMPLY WITH THE PROVISIONS OF THE OHIO ADMINISTRATIVE CODE 3701-53 WHEN COLLECTING AND ANALYZING THE SAMPLES. III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS ALL EVIDENCE STEMMING FROM THE COLLECTION AND TESTING OF THE APPELLANT’S BLOOD AND URINE SAMPLES FOR PURPOSES OF PROVING A VIOLATION OF R.C. 4511.19 BECAUSE THE TESTIMONY PRESENTED BY THE STATE ESTABLISHED THAT THE BLOOD AND URINE SAMPLES THAT WERE TESTED IN THIS MATTER WERE NOT THE BLOOD AND URINE SAMPLES COLLECTED FROM THE APPELLANT. IV. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS ALL EVIDENCE STEMMING FROM THE COLLECTION AND TESTING OF THE APPELLANT’S BLOOD AND URINE FOR PURPOSES OF PROVING A VIOLATION OF R.C. 4511.19 BECAUSE THE APPELLANT DID NOT EFFECTIVELY CONSENT TO THE WARRANTLESS SEARCHES AND SEIZURES OF HIS BLOOD AND URINE. V. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS ANY AND ALL STATEMENTS MADE BY THEStark Count y , Case No. 2018CA00178 6

APPELLANT AS THE LAW ENFORCEMENT OFFICERS VIOLATED THE APPELLANT’S RIGHT TO BE FREE FROM SELF-INCRIMINATION. VI. THE APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN REGARD TO THE FILING OF THE AFFIDAVIT OF DISQUALIFICAT ION WITH THE OHIO SUPREME COURT.

I. {¶11} Appellant’s first five assignments of error challenge the trial court’s ruling on his motion to suppress. {¶12} There are three methods of challenging on appeal a trial court' s ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must d etermine whether said findings of fact are against the manifest weight of the evidenc e. State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein , 73 Ohio App.3d 486, 597 N.E.2d 1141(1991); State v. Guysinger , 86 Ohio App.3d 592, 621 N.E.2d 726(1993). Second, an appellant may argue the trial court failed to apply the appropr iate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. State v. Williams , 86 Ohio App.3d 37, 619 N.E.2d 1141 (1993). Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independentlyStark Count y , Case No. 2018CA00178 7
determine, without deference to the trial court's conclusion, w hether the facts meet the appropriate legal standard in any given case. State v. Curry , 95 Ohio App.3d 93, 641 N.E.2d 1172 (1994); State v. Claytor , 85 Ohio App.3d 623, 620 N.E.2d 906 (1993); Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S. , 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a ge neral matter determinations of reasonable suspicion and probable cause shoul d be reviewed de novo on appeal.” {¶13} When ruling on a motio n to suppress, the tri al court assumes th e role of trier of fact and is in the best position to resolve questions of fac t and to evaluate the credibility of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243, 652 N.E.2d 988; State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). {¶14} In his first assignment of error, Appellant argues the trial co urt erred in failing to suppress the results of the one-leg stand and walk and turn field sobriety tests because the officer did not testify regarding the applicable standards as set forth in the NHTSA manual, and further did not testify he conducted the tests in c ompliance with the standards set forth in the manual. {¶15} The instant case provides an unusual scenario in which there we re no results of either the one-leg stand test or the walk and turn t est due to Appellant’s failure to complete the tests past the instructional stage. Officer M anos’s testimony demonstrated he was unable to score either test. 5/14/18 Tr. 1 13. {¶16} The Ohio Supreme Court has held even where an officer failed to substantially comply with NHTSA testing standards, the officer may testify as to his observations of the defendant during administration of non-scie ntific field sobriety tests:Stark Count y , Case No. 2018CA00178 8 The nonscientific field sobriety tests involve simple exercises , such as walking heel-to-toe in a straight line (walk-and-turn test). The manner in which defendant performs these tests may easily reveal to the a verage layperson whether the individual is intoxicated. We see no reas on to treat an officer's testimony regarding the defendant's performance on a nonscientific field sobriety test any differently from his test imony addressing other indicia of intoxication, such as slurred speech, bloodsho t eyes, and odor of alcohol. In all of these cases, the officer is testifyi ng about his perceptions of the witness, and such testimony helps resolve th e issue of whether the defendant was driving while intoxicated. Unlike the actual test results, which may be tainted, the offic er's testimony is based upon his or her firsthand observation of the defendant's conduct and appearance. Such testimony is being offered to assi st the jury in determining a fact in issue, i.e., whether a defendant was d riving while intoxicated. Moreover, defense counsel will have the opportunit y to crossexamine the officer to point out any inaccuracies and weaknesse s. We conclude that an officer's observations in these circumstances are permissible lay testimony under Evid. R. 701. Therefore, we ans wer the certified question in the negative and hold that a law enforcem ent officer may testify at trial regarding observations made during a defen dant's performance of nonscientific standardized field sobriety tests.Stark Count y , Case No. 2018CA00178 9 {¶17} State v. Schmitt , 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶¶ 14- 15 (2004). {¶18} In the instant case, there were no results of the tests to supp ress, but only testimony of the officer’s observations of Appellant during the attempted tests. Therefore, even if the State failed to demonstrate the tests were administ ered in accordance with NHTSA standards, the officer’s testimony concerning his observa tions of Appellant during his attempted administration of the one-leg stand and walk and turn tests would have been admissible. Accordingly, even if the trial court erred in finding substantial compliance with NHTSA testing standards, any error is harmless, as the only testimony available to the State concerning these tests was not results o f the testing, but the officer’s admissible observations. {¶19} The first assignment of error is overruled.

II. {¶20} In his second assignment of error, Appellant argues the court e rred in overruling his motion to suppress his blood and urine test resu lts because the evidence did not demonstrate the State substantially complied with the s ealing and labeling requirements set forth in OAC 3701-53-05, failed to demonstrate the blood sample was collected in accordance with hospital protocol as set forth in the laboratory procedure manual, and failed to demonstrate the person who tested the blo od and urine was qualified in accordance with OAC 3701-53-07. He further argues the State was required to demonstrate strict compliance with OAC collection and labeli ng procedures because the State failed to demonstrate the blood and urine samples tes ted in the instant caseStark Count y , Case No. 2018CA00178 10 were the samples actually collected from him, based on a discre pancy in the testimony regarding the external packaging of the samples. {¶21} When results of blood -alcohol tests are cha llenged in an aggrav ated vehicular homicide prosecution which depends upon proof of an R .C. 4511.19(A) violation, the state must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm. Code Chapter 3701–53 before the test results are admissibl e. State v. Mayl , 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 48 (2005). {¶22} Ohio Administrative Code (OAC) Section 3701-53-05 sets for the standards for collecting a legal blood or urine sample:

(A) All samples shall be collected in accordance with section 4511.19, or section 1547.11 of the Revised Code, as applicable. (B) When collecting a blood sample, an aqueous solution of a no nvolatile antiseptic shall be used on the skin. No alcohols shal l be used as a skin antiseptic. (C) Blood shall be drawn with a sterile dry needle into a vacuu m container with a solid anticoagulant, or according to the labor atory protocol as written in the laboratory procedure manual based on the type of specimen being tested. (D) The collection of a urine specimen must be witnessed to ass ure that the sample can be authenticated. Urine shall be deposited into a clean glass or plastic screw top container which shall be capped, or collectedStark Count y , Case No. 2018CA00178 11
according to the laboratory protocol as written in the laborato ry procedure manual. (E) Blood and urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at le ast the following information: (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 ur ine specimens shall be refrigerated.

{¶23} If the State meets its burden of going forward with evidence de monstrating substantial compliance, a presumption of admissibility arises, and the burden shifts to the defendant to rebut the presumption by demonstrating prejudice f rom the State's failure to strictly comply with the applicable regulations in the Ohio Adm inistrative Code. State v. Baker , 146 Ohio St.3d 456, 2016-Ohio-451, 58 N.E.3d 1114, ¶ 23 (2016 ). {¶24} Appellant first argues the State failed to demonstrate substant ial compliance with the laboratory manual of Affinity Hospital, the hospital at which the blood sample was drawn. We note the rule requires the sample to be d rawn according to laboratory protocol as written in the procedure manual, or the blood to be drawn with a sterile dry needle into a vacuum container with a solid anticoa gulant.Stark Count y , Case No. 2018CA00178 12 {¶25} In the instant case, Dannielle Shavers, a certified phlebotomis t at Affinity Medical Center, testified she used a blood kit provided by the police officers, which included a gray capped vacutainer tube. She testified she ster ilized Appellant’s skin with betadine, and used a dry sterile needled provided by the hospit al to draw the blood into the vacutainer tube provided by police. 4/2/18 Tr. 19, 37, 39. Jennifer Creed, a criminalist in the drug chemistry section of the Stark County Crime Lab, te stified the crime lab provides the Massillon Police Department with the blood draw ki ts, including the vacutainer tube with a gray cap. The gray cap identifies the t ube as containing solid anticoagulants. 4/17/18 Tr. 122-125. Because the State present ed evidence the blood was drawn with a sterile dry needle into a vacuum container wit h a solid anticoagulant, the State was not required to prove compliance with laboratory protocol. We find the testimony demonstrated substantial compliance with OAC 3701-53- 05(C). {¶26} Appellant next argues the evidence failed to demonstrate the bl ood and urine samples were sealed and labeled in compliance with OAC 37 01-53-05(E). {¶27} Danielle Shavers testified the vacutainer she used to collect A ppellant’s blood immediately seals itself when removed from the needle. S he testified she removed the tube from the needle and handed the sample to one of the po lice officers present in the room. She then used the same needle to draw a medical bloo d sample for hospital use. After she drew the medical sample, she used a preprinted label including Appellant’s name, date of birth, and date of the procedure to identify the first legal sample. She then wrote the time of collection and her name, attached the label t o the tube, pla ced the tube in a biohazard bag, and handed the sample to the officers. 4/2/ 18 Tr. 37, 51, 80, 111.Stark Count y , Case No. 2018CA00178 13 We find Ms. Shavers testimony sufficient to demonstrate substan tial compliance with OAC 3701-53-05(E) as to the sealing and labeling of the blood s ample. {¶28} With regard to the urine sample, Officer Manos testified he pro vided Appellant with a standard sterile urine collection cup. Althou gh they looked away to provide Appellant some privacy, the officers were present in th e room with Appellant and able to hear the urine hitting the cup. Officer Manos then cap ped the urine specimen and sealed the cup with evidence tape which was labeled with Appell ant’s name, date, time of collection and the officer’s initials. 4/2/18 Tr. 83-84, 12 3-128. We find this testimony sufficient to demonstrate substantial compliance with OAC 3701- 53-05(E) as to the sealing and labeling of the urine sample. {¶29} Appellant next argues the State failed to demonstrate Jennifer Creed, the criminalist who tested the samples at the Stark County Crime La b, had the credentials required by OAC 3701-53-07:

(A) Blood, urine, and other bodily substance tests for alcohol shall be performed in a laboratory by an individual who has a laboratory director's permit or, under his or her general direction, by an individual who has a laboratory technician's permit. General direction does not mean that the laboratory director must be physically present during the perfo rmance of the test. Laboratory personnel shall not perform a technique or met hod of analysis that is not listed on the laboratory director's permit

. (1) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered b y aStark Count y , Case No. 2018CA00178 14 national program for proficiency testing for the approved techn ique or method of analysis for which the permit is sought and who posse sses at least two academic years of college chemistry and at least two years of experience in a clinical or chemical laboratory and possesses a minimum of a bachelor's degree shall meet the qualifications for a labo ratory director's permit. (2) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered b y a national program for proficiency testing for the approved techn ique or method of analysis for which the permit is sought, has been cer tified by the designated laboratory director that he or she is competent to p erform all procedures contained in the laboratory's procedure manual for t esting specimens and meets one of the following requirements shall mee t the qualifications for a laboratory technician's permit: (a) Has a bachelor's degree in laboratory sciences from an accredited institution and has six months experience in laborat ory testing; (b) Has an associate's degree in laboratory sciences from an accredited institution or has completed sixty semester hours of academic credit including six semester hours of chemistry and one year e xperience in laboratory testing; (c) Is a high school graduate or equivalent and has successfull y completed an official military laboratory proc edures course of at least fiftyStark Count y , Case No. 2018CA00178 15
weeks duration and has held the military enlisted occupational specialty of medical laboratory specialist (laboratory technician); or (d) Is a high school graduate or equivalent and was permitted o n or before July 7, 1997.

{¶30} State’s Exhibit 10, which was identified and used during the te stimony of Ms. Creed during the suppression hearing and attached to the St ate’s response to Appellant’s motion to suppress, includes a summary of expert wi tness qualifications. The summary states Ms. Creed has worked as a forensic scientist at the crime lab since 1996. She has held a permit from the Ohio Department of Health for ga s chromatography method of alcohol analysis since 2016, and was awarded a Bachel or of Science degree in forensic science by Michigan State University. We find the record reflects Ms. Creed was qualified to perform the requested alcohol analysis of Appe llant’s blood and urine. {¶31} Finally, Appellant argues because the State failed to demonstra te a chain of custody sufficient to demonstrate the blood and urine tested by Ms. Creed was the same blood and urine collected from Appellant on November 17, 2 017, and the testimony demonstrated a discrepancy in the external packaging, the State was required to prove strict compliance with the Ohio Administrative Code. {¶32} Jennifer Creed reviewed and identified her lab report, which do cumented the labels used to seal and/or to identify the samples containe d in the blood tube and the urine cup submitted to her for testing. She testified the labe l reflected the urine sample was collected by Patrolman Manos, and the blood sample was coll ected by Danielle Shaver. 4/17/18 Tr. 118. She testified the samples were seale d when she received them.Stark Count y , Case No. 2018CA00178 16
4/17/18 Tr. 120. Ms. Creed’s lab report reflects the sealed ur ine sample and sealed blood collection kit were labeled with Appellant’s name. State’s Exh ibit 10. {¶33} The State bears the burden of establishing the proper chain of custody; however, it is not an absolute duty. State v. Moore , 47 Ohio App.2d 181, 183, 1 O.O.3d 267, 268, 353 N.E.2d 866, 870 (1973). In order to meet its burd en, the State need only prove that it is “reasonably certain that substitutions, altera tion or tampering did not occur.” Id . Moreover, a chain of custody may be established by direct tes timony or by inference. State v. Conley , 32 Ohio App.2d 54, 60, 61 O.O.2d 50, 54, 288 N.E.2d 296, (1971). Officer Manos testified he transported the samples to t he evidence locker on November 17, 2017, where he filled out paperwork logging in his information. He testified the samples were in separate Ziploc bags. Officer Baumgardner of the Massillon Police Department testified he examined the samples on Monday, Novembe r 20, 2017, and logged them into the system at 7:12 a.m. He testified the samp les appeared to be sealed. However, Officer Baumgardner testified one sample was in a clea r plastic bag and the other sample in a 6 x 6 manila envelope. {¶34} Shelly Showers of the Stark County Crime Lab testified she rece ived the samples on November 20, 2017, checked to make sure they were se aled, and had Officer Baumgardner sign the appropriate paperwork. She placed the sam ples in the crime lab refrigerator. {¶35} Jennifer Creed testified she removed the samples for analysis f rom the crime lab refrigerator. She testified the samples were sealed, and testified the labels contained the date of collection and person collecting the samp les in accordance with the prior testimony of Ms. Shaver and Officer Manos.Stark Count y , Case No. 2018CA00178 17 {¶36} We find the testimony sufficient to meet the State’s burden to prove it was reasonably certain substitutions, alteration, or tampering did not occur. Any discrepancies in the description of the external packaging of t he sealed and labeled samples are insufficient to demonstrate prejudice which would r equire the State to demonstrate strict compliance with the Ohio Administrative Code

. {¶37} The second assignment of error is overruled. III. {¶38} In his third assignment of error, Appellant argues the court er red in failing to suppress the results of the blood and urine samples because the State failed to prove a proper chain of custody, and the testimony regarding a discre pancy in the external packaging of the samples demonstrates the samples testified at the crime lab were not the samples taken from Appellant. {¶39} The State bears the burden of establishing the proper chain of custody; however, it is not an absolute duty. State v. Moore , 47 Ohio App.2d 181, 183, 1 O.O.3d 267, 268, 353 N.E.2d 866, 870 (1973). In order to meet its burd en, the State need only prove that it is “reasonably certain that substitutions, altera tion or tampering did not occur.” Id . Moreover, a chain of custody may be established by direct tes timony or by inference. State v. Conley , 32 Ohio App.2d 54, 60, 61 O.O.2d 50, 54, 288 N.E.2d 296, (1971). Any break in the chain of custody goes to the credibili ty, or weight of the evidence, and not to admissibility. State v. Bazler , 5th Dist. Licking No. 18-CA-29, 2018-Ohio-5306, ¶ 11. {¶40} As discussed in the second assignment of error above, the State demonstrated a sufficient chain of custody to prove with reason able certaintyStark Count y , Case No. 2018CA00178 18
substitutions, alteration, or tampering did not occur. Any dis crepancy in testimony regarding whether the urine sample was in a Ziploc bag or a man ila envelope went to the credibility or weight of the evi dence, and not to its admissibi lity. {¶41} The third assignment of error is overruled. IV. {¶42} In his fourth assignment of error, Appellant argues the court e rred in failing to suppress the results of his blood and urine tests because hi s consent was invalid. He argues the implied consent law did not apply because Officer Ma nos testified he did not obtain consent under the implied consent law, but rather by ask ing Appellant for consent, which Appellant was unable to voluntarily give due to his medic al condition at the time. In the alternative, he argues Officer Manos did not obtain vali d consent under the implied consent law because the original BMV Form 2255 signed by Appell ant had been lost, and the officer could not specifically remember what he told Appell ant regarding Appellant’s rights prior to obtaining consent. {¶43} The Ohio Legislature has adopted a statutory scheme whereby any one who operates a motor vehicle on a public roadway is presumed to hav e given consent to chemical testing pursuant to R.C. 4511.191(A)(2):

Any person who operates a vehicle, streetcar, or trackless trol ley upon a highway or any public or private property used by the pu blic for vehicular travel or parking within this state or who is in phys ical control of a vehicle, streetcar, or trackless trolley shall be deemed to hav e given consent to a chemical test or tests of the person's whole blood , blood serumStark Count y , Case No. 2018CA00178 19 or plasma, breath, or urine to determine the alcohol, drug of a buse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, bre ath, or urine if arrested for a violation of division (A) or (B) of section 4 511.19 of the Revised Code, section 4511.194 of the Revised Code or a substan tially equivalent municipal ordinance, or a municipal OVI ordinance.

{¶44} An arrest occurs when four elements are present: (1) an intent to arrest, (2) under real or pretended authority, (3) accompanied by actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested. State v. Darrah , 64 Ohio St.2d 22, 26, 18 O.O.3d 193, 195, 412 N.E.2d 1328, 13 30–1331 (1980). {¶45} The trial court made the following findings concerning whether Appellant was under arrest at the time he consented to the blood and urin e testing:

Officer Manos testified that based on his observations at the s cene, he made the decision to arrest Defendant for OVI. After admini stering the field sobriety tests, the officer handcuffed Defendant and plac ed him in the cruiser. The officer’s original intent was to transport Defend ant to the hospital in his cruiser. After consulting with others on the s cene it was decided to transport Defendant by ambulance. While Defendant w as uncuffed for medical transport and treatment, two officers follow ed Defendant to the hospital. The decision to transport Defendant to the ho spital was made by law enforcement and not at the request of Defendant. U pon arrivalStark Count y , Case No. 2018CA00178 20
at the hospital, Officers Riccio and Manos met Defendant in his room. They both testified that they were in full uniform and stationed in Defendant’s room and that Defendant was not free to leave. The record is c lear that at the time Officer Manos requested the blood and urine tests, Def endant was under arrest.

{¶46} Judgment Entry, June 27, 2018, p. 15. {¶47} We agree with the trial court’s finding, which is supported by the testimony at the suppression hearing, Appellant was under arrest at the t ime consent was obtained. {¶48} Appellant argues he was physically unable to give voluntary con sent due to injuries sustained in the accident. However, voluntary consent is only relevant in the event Appellant was not under arrest at the time the officers a sked for consent to obtain a blood and urine sample. Because we find Appellant was under arrest, the implied consent law applies in the inst ant case. As discussed by the trial court:

Because Defendant was under arrest for a violation of R.C. 4511 .19, Ohio’s implied consent law applies. Under Ohio’s Implied Conse nt Law, Defendant’s consent it [sic] implied, unless Defendant refuses. “For the purpose of R.C. 4511.191, a refusal to submit to a chemical tes t of the blood, breath or urine will occur where a person, by his acts, words or general conduct, manifests an unwillingness to submit to the te st.” Hoban v. Rice , 25 Ohio St.2d 111, 111-12, 267 N.E.2d 311, 312, (1971). The statue goes so far as to say that in the event that a defendant is dead orStark Count y , Case No. 2018CA00178 21
unconscious he is deemed to consent. Defendant expressed no in tent to refuse the officer’s request for the blood and urine samples. He verbally consented to both. He was calm and compliant when the phleboto mist drew his blood. While the phlebotomist may not have clearly told De fendant she was drawing the blood for law enforcement purposes, the officer had just asked him for a blood sample and Defendant was present in the r oom when the officer told the phlebotomist that Defendant had consented to a sample and provided the phlebotomist with a blood draw kit containing a vial for Defendant’s blood collection. With regard to the urine sample, Defendant was handed a cup and urinated into it voluntarily. Had Defenda nt wished to refuse, there are many ways he could have physically done so , ranging from refusing to urinate to urinating outside of the collection cup. Thus, none of Defendant’s actions expressed a manifest intent to refu se the test. Since Defendant did not refuse, he is deemed by law to have con sented.

{¶49} Judgment Entry, June 27, 2018, p. 15-16. {¶50} Finally, Appellant argues the State presented insufficient comp liance with R.C. 4511.191(C) because the original implied consent form sign ed by Appellant was lost, the State only had a photocopy of the front of the form, and th e officers could not remember precisely what they said to Appellant in informing him of his rights. {¶51} While the failure to inform a defendant of the consequences of refusal to submit to testing may well preclude the suspension of his licen se pursuant to R.C. 4511.191 and .193, there is no provision in R.C. 4511.19 which requires compliance withStark Count y , Case No. 2018CA00178 22 implied consent procedures as a condition of the admissibility of chemical test results in a DUI prosecution. City of Mansfield v. Ishikawa , 5th Dist. Richland No. 95-CA-51, 1996 WL 363772, *1, Thus, the failure to warn a defendant of the co nsequences of refusing and/or submitting to chemical testing does not require the excl usion of the chemical test results in the criminal prosecution. Id

. See, also, Cincinnati v. Ramey , 1st Dist. Hamilton App. No. C-860748, unreported (June 17, 1987)(error to grant mo tion to suppress for failure of prosecutor to produce implied consent form used to a dvise defendant of consequences of refusing to submit to test); State v. Yost, 5th Dist. Stark App. No. CA7662, unreported (May 15, 1989) (fact implied consent form left unread not a constitutional violation invoking the exclusionary rule); State v. Brewer , 5th Dist. Ashland App. No. CA-796, unreported (October 28, 1983) (failure to corr ectly advise defendant of consequences of refusing to submit to breathalyzer test does no t create constitutional violation to justify granting of motion to suppress). {¶52} The officers testified Appellant was read the preprinted inform ation on the back of BMV Form 2255. Therefore, although the officers could not provide the actual original copy of the form signed by Appellant, and the photocop y did not include the back of the form, we find there was evidence from which the court co uld conclude Appellant was read the information required by Ohio’s implied consent law . Further, even if Appellant was not properly instructed of the consequences of re fusal, the exclusionary rule does not require suppression of the blood and urine result s obtained in the instant

case. {¶53} The fourth assignment of error is overruled.Stark Count y , Case No. 2018CA00178 23

V. {¶54} In his fifth assignment of error, Appellant argues the court er red in failing to suppress statements made during field sobriety testing because he was not read his rights in accordance with Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). {¶55} In Miranda , the United States Supreme Court held when an individual is taken into custody or otherwise deprived of his freedom in any significant way and is subjected to questioning, he must be warned prior to any questi oning he has the right to remain silent, anything he says can be used against him in a co urt of law, he has the right to the presence of an attorney, and if he cannot afford an atto rney one will be appointed for him. Id . at 478–479. Unless such warnings are demonstrated by the pros ecution at trial, no evidence obtained as a result of the interrogation ca n be used against the defendant. Id . A custodial interrogation is defined as “questioning initiate d by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id . at 444. {¶56} In Berkemer v. McCarty , 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the U.S. Supreme Court held roadside questioning of a m otorist detained pursuant to a routine traffic stop did not constitute “custodia l interrogation” for purposes of the Miranda rule, so pre-arrest statements the motorist made in answer to such questioning were admissible against the motorist. If the motori st “thereafter is subjected to treatment that renders him ‘in custody’ for practical purpos es, he will be entitled to the full panoply of protections prescribed by Miranda .” Id . at 440.Stark Count y , Case No. 2018CA00178 24 {¶57} In Berkemer, an Ohio State Highway Patrol trooper stopped a vehicle he observed weaving on the highway. The trooper asked the driver to exit the vehicle. When the driver had difficulty standing, the trooper asked him to pe rform a field sobriety test, which he failed. When asked whether he had been using intoxica nts, the driver responded he consumed beer and smoked marijuana. The United St ates Supreme Court concluded during the roadside questioning, the driver of the ve hicle had not been taken into custody for purposes of Miranda

. Id. at 441-42. {¶58} In the instant case, at the time Appellant made the statement t o Officer Riccio he had consumed one beer, we find he had not been taken into custody. The encounter occurred at the scene of the accident, and the office rs were still attempting to discern what exactly happened. Appellant was not placed in han dcuffs and was not placed in the cruiser at this point in time. The officers were still attempting to determine if Appellant was driving impaired when he caused the crash. Be cause the questioning of Appellant at the scene of the accident was not a custodial inte rrogation, Miranda warnings were not required, and we find the trial court did not err in o verruling Appellant’s motion to suppress statements made at the scene. {¶59} The fifth assignment of error is overruled. VI. {¶60} In his sixth assignment of error, Appellant argues counsel was ineffective in failing to file an affidavit with extrinsic evidence of prejudi ce in his motion to disqualify the trial court judge in the instant case. {¶61} A properly licensed attorney is presumed competent. State v. Hamblin , 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to p revail on a claim ofStark Count y , Case No. 2018CA00178 25
ineffective assistance of counsel, Appellant must show counsel' s performance fell below an objective standard of reasonable representation and but for counsel’s error, the result of the proceedings would have been different. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s conduct so undermined the proper functioning of the adversarial process that the tria l cannot be relied upon as having produced a just result. Id

. {¶62} On July 27, 2018, counsel for Appellant filed an affidavit of d isqualification of the trial judge in the instant case. Counsel claimed the tr ial judge was biased against Appellant based on information he received ex parte from the pr osecutor’s office before the initial pretrial conference, criticized the trial court’s p articipation in plea negotiations, and claimed the judge was personally hostile toward defense cou nsel. {¶63} The Ohio Supreme Court denied Appellant’s affidavit for disqual ification on August 8, 2018. The court first found the affidavit untimely, as it was based on events occurring in January, 2018, yet not filed until late July. The court found further even if the affidavit was timely filed, it did not set forth sufficient gro unds for disqualification. Relevant to this assignment of error, the court found counsel failed to support his allegations of hostility and involvement in plea negotiations with transcripts of the proceedings. {¶64} Appellant has not demonstrated had he provided transcripts in s upport of his claims, the result of the disqualification proceedings woul d have been different. Appellant does not point to specific portions of the transcript filed with this Court which demonstrate his claims the trial court was hostile to counsel a nd/or biased against Appellant, and concedes transcripts were not available to demon strate his claim the trialStark Count y , Case No. 2018CA00178 26
judge was improperly involved in plea negotiations. Further, Appellant has not demonstrated the Ohio Supreme Court’s denial of the affidavit o f disqualification affected the outcome of the instant case. {¶65} The sixth assignment of error is overruled. {¶66} The judgment of the Stark County Common Pleas Court is affirmed

.

By: Hoffman, P.J. Gwin, J. and Wise, John, J. concur