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Date: 03-25-2021

Case Style:


Case Number: C-190522, C-190523

Judge: Pierre H. Bergeron


Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney

Defendant's Attorney:

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Cincinnati, OH - Criminal defense attorney represented Andrew Albright with a motion to suppress the results of his blood draw.

In June 2019, Andrew Albright crashed his car in a single-car accident.
He sustained serious injuries, and authorities transported him directly from the
scene of the crash to the emergency room. Colerain Township Police Officer Adam
Quinn responded to the crash and later accompanied Mr. Albright to the emergency
{¶4} At the emergency room, Officer Quinn read Mr. Albright his Miranda
rights. He also read a BMV Form 2255, advising Mr. Albright that he was under
arrest for operating a vehicle under the influence (“OVI”). While Officer Quinn read
the forms, Mr. Albright lay groaning unintelligibly on his hospital bed. The nurse
then administered a “sternum rub,” a painful procedure that involved applying
pressure to Mr. Albright’s chest to gauge his alertness. When Mr. Albright jolted OHIO FIRST DISTRICT COURT OF APPEALS
awake, Officer Quinn asked if he would consent to a blood draw. Mr. Albright
responded: “Take whatever you want.” Emergency room staff completed a blood
draw, which eventually tested positive for fentanyl and norfentanyl. Officer Quinn
later testified that he was unsure, due to Mr. Albright’s injuries and behavior,
whether Mr. Albright was genuinely conscious during the encounter.
{¶5} Charged with OVI in violation of R.C. 4511.19(A)(1)(a), OVI in
violation of R.C. 4511.19(A)(1)(j), and driving under OVI suspension in violation of
R.C. 4510.14, Mr. Albright moved to suppress his statements granting consent to the
blood draw as well as the results of the blood draw. The hearing on the motion to
suppress revolved around whether or not Mr. Albright was conscious when Officer
Quinn read his Miranda rights. A secondary issue concerned Mr. Albright’s
consciousness when Officer Quinn recited the BMV Form 2255 and declared him
under arrest. Officer Quinn’s body camera captured his full interaction with Mr.
Albright at the emergency room, and both defense and prosecution counsels relied
heavily on the footage in furtherance of their arguments.
{¶6} At the motion to suppress hearing, the prosecutor argued that the body
camera footage showed that Mr. Albright was conscious and gave actual, knowing
consent to the blood draw. Defense counsel insisted to the contrary, contending that
the extent of Mr. Albright’s injuries and his generally unintelligible groaning
reflected a lack of consciousness until the sternum rub jolted him awake—and then
only briefly. Building on that premise, defense counsel maintained that Mr. Albright
had not been properly advised of his Miranda rights by virtue of his foggy mental
state, and that any hint of consent by Mr. Albright was both uninformed and a
product of “torture” via the sternum rub. OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Toward the end of the hearing, the state offered an “in-the-alternative”
argument to support denial of the motion. Even if Mr. Albright were unconscious,
the prosecution asserted, the United States Supreme Court’s recent holding in
Mitchell v. Wisconsin, 588 U.S. __, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2020),
established the Fourth Amendment constitutionality of a blood draw from an
unconscious driver under the “exigent circumstances” doctrine. After taking a few
days to ponder these arguments and review Mitchell, the trial court denied Mr.
Albright’s motion to suppress. The court found that “Mr. Albright was either
unconscious or in a stupor at the time of the events.” It then held “that under the
rule of Mitchell v. Wisconsin, [for] a criminal defendant who is either unconscious or
in a stupor, the State is not required to seek a warrant for a blood draw.” Neither
party—nor the court—ever addressed Ohio’s statutory framework for implied consent
of an unconscious driver in an OVI case.
{¶8} Following the trial court’s denial of his motion to suppress, Mr.
Albright pled no contest to OVI in violation of R.C. 4511.19(A)(1)(a) and driving
under OVI suspension. He received a 180-day sentence on each charge, to be served
consecutively, along with fines, court costs, and a driver’s license suspension. He
now appeals, asserting a single assignment of error.
{¶9} In his sole assignment of error, Mr. Albright contends that the trial
court went astray “by broadly interpreting the U.S. Supreme Court decision of
Mitchell v. Wisconsin to apply to all cases of unconscious persons,” not only those
suspected of driving under the influence of alcohol. But we need not wrestle with the OHIO FIRST DISTRICT COURT OF APPEALS
proper application of Mitchell to dispose of this appeal, because statutory grounds
suffice for resolving the motion to suppress.
{¶10} “Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court's findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard.” State v. Taylor, 174 Ohio App.3d 477,
2007-Ohio-7066, 882 N.E.2d 945 (1st Dist.), ¶ 11. We review “whether the facts
satisfy the applicable legal standard” de novo. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
{¶11} Before diving into Mr. Albright’s claim, it is helpful to review the
Supreme Court’s holding in Mitchell. Mitchell concerned “a narrow but important
category of [DUI] cases: those in which the driver is unconscious and therefore
cannot be given a breath test.” Mitchell, 588 U.S. __, 139 S.Ct. 2525, 2531, 204
L.Ed.2d 1040. A Wisconsin driver arrested for driving under the influence of alcohol
moved to suppress the results of his blood test on Fourth Amendment grounds,
challenging application of Wisconsin’s implied-consent statute to his case. Id. at
2532. The Supreme Court granted certiorari to decide “[w]hether a statute
authorizing a blood draw from an unconscious motorist provides an exception to the
Fourth Amendment warrant requirement.” Id. But the Mitchell court stopped short
of answering this question: instead, in a plurality opinion authored by Justice Alito,
four Justices held that in drunk-driving cases involving an unconscious driver, “the
exigent-circumstances rule almost always permits a blood test without a warrant.”
{¶12} The trouble for Mr. Albright is that Mitchell does not actually resolve
his motion to suppress—or, for that matter, this appeal. The state now concedes that
the trial court should not have relied on Mitchell to deny Mr. Albright’s motion to
suppress. Instead, it points to Ohio’s implied consent statute for unconscious drivers
in R.C. 4511.191(A), which provides, in relevant part:
R.C. 4511.191(A)(2): Any person who operates a vehicle, streetcar, or
trackless trolley upon a highway or any public or private property used
by the public for vehicular travel or parking within this state or who is in
physical control of a vehicle, streetcar, or trackless trolley shall be
deemed to have given consent to a chemical test or tests of the person's
whole blood, blood serum or plasma, breath, or urine to determine the
alcohol, drug of abuse, controlled substance, metabolite of a controlled
substance, or combination content of the person’s whole blood, blood
serum or plasma, breath, or urine if arrested for a violation of division
(A) or (B) of section 4511.19 of the Revised Code, section 4511.194 of the
Revised Code or a substantially equivalent municipal ordinance, or a
municipal OVI ordinance.
. . .
R.C. 4511.191(A)(4): Any person who is dead or unconscious, or who
otherwise is in a condition rendering the person incapable of refusal,
shall be deemed to have consented as provided in division (A)(2) of this
section, and the test or tests may be administered, subject to sections
313.12 to 313.16 of the Revised Code.
Under R.C. 4511.191(A)(4), an unconscious driver is deemed to have consented to a
blood draw. And the Ohio Supreme Court has squarely held that “ ‘Section 4511.191 *
* * does not violate the search and seizure provision of the Fourth Amendment * * * .’
” State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 18,
quoting State v. Starnes, 21 Ohio St.2d 38, 254 N.E.2d 675 (1970).
{¶13} Mr. Albright does not challenge the trial court’s factual finding that he
was “unconscious or in a stupor” at the time of his blood draw (and we note that the
word "stupor" is sufficient to invoke the portion of the statute concerning a person OHIO FIRST DISTRICT COURT OF APPEALS
"in a condition rendering the person incapable of refusal"). Nor do we see any
reason to disturb this finding on appeal. Badly injured, Mr. Albright was moaning
unintelligibly and lying back on his hospital bed; Officer Quinn testified that he
remained unsure throughout the encounter whether Mr. Albright was conscious.
Moreover, Mr. Albright offers us no argument as to why R.C. 4511.191(A)(4) should
not apply in his case.
{¶14} It is unfortunate that neither party addressed the implications of R.C.
4511.191(A) below, but “[t]he trial court can be right for the wrong reasons.” In re
L.S., 1st Dist. Hamilton No. C-150526, 2016-Ohio-5582, ¶ 20 (upholding denial of a
motion to suppress under the automobile exception, rather than the inventory search
exception relied upon by the trial court).

Outcome: Accordingly, we overrule Mr. Albright’s assignment of error and affirm the judgment of the trial court.

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