COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67820 CITY OF LAKEWOOD : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KATHLEEN GILLETT : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Lakewood Municipal Court Case No. 94-C-3399 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: TIMOTHY J. GAUNTNER, ESQ. JAMES S. CASEY, ESQ. City of Lakewood THOMAS C. WAGNER, ESQ. 12650 Detroit Road GAINES & STERN CO., L.P.A. Lakewood, Ohio 44107 1400 Renaissance Center 1350 Euclid Avenue Cleveland, Ohio 44115-1817 - 2 - DYKE, J.: Plaintiff-appellant, Kathleen Gillett, appeals her conviction for Driving Under the Influence of Alcohol, (DUI) a violation of Lakewood Codified Ordinance, Section 333.01(A). In a single assignment of error, appellant claims that the trial court erred in overruling her motion to suppress her blood alcohol test because her blood sample was drawn without probable cause to arrest. Appellant also claims that she was not under arrest at the time the sample was drawn and that therefore, implied consent for the test was not triggered pursuant to R.C. 4511.19.1. Upon review, we find that appellant was under a lawful arrest at the time she gave actual consent to the chemical testing of her blood pursuant to R.C. 4511.19.1. Accordingly, the trial court's ruling and appellant's conviction are affirmed. A transcript of the instant suppression hearing demonstrates that on April 12, 1994 at approximately 1:30 a.m., the appellant was driving home from a bar where she and her passenger had been celebrating her passenger's birthday. The transcript also demonstrates that directly enroute from the bar, the appellant lost control of her vehicle which traveled over a curb, onto a sidewalk and hit a concrete filled pole. Officer Busi testified that he arrived on the scene at 1:42 a.m.; that the appellant was in the driver's seat; that she had sustained a severe laceration of her forehead; that he detected a strong odor of alcohol within the vehicle and a moderate odor of - 3 - alcohol about appellant's person and that while the appellant was coherent, her speech was somewhat slurred. Busi also testified that the appellant told him that she had consumed two glasses of wine. He further stated that appellant's passenger, David Washington admitted to being intoxicated. On cross-examination, Busi admitted that it was possible that the car could have slid into the pole as the road was wet due to heavy rain and the front tires of appellant's vehicle were bald. Busi stated however, that he was aware of these factors and had taken them into consideration at the time but still felt that alcohol was a factor in the accident. Busi also admitted that he did not perform any field sobriety tests due to appellant's 1 injuries. Busi stated that he ordered Officer Fuerst to follow the appellant to the hospital and to observe her in the emergency room as he suspected that she was DUI and he intended to arrest her. Busi indicated that upon his arrival, he proceeded directly to appellant's bedside where he advised her of her Miranda rights and read the provisions of the automatic license suspension form (ALS) which commences with the sentence, "you are now under arrest." (Tr. 15) See, (R.C. 4511.19.1(C)(2)(a} and (b)). Busi testified that he then requested and received appellant's consent 1 Busi admitted that he did not conduct field sobriety tests. He stated that he did not even ask the appellant to perform the ABC test because "... every time she moved, every time she talked, her head went up" and he "didn't want her to get hurt." (Tr. 32) Busi also testified that in addition to her deep and bleeding head wound which required over three hundred stitches to repair, the appellant complained of foot and arm injuries. - 4 - to perform the blood alcohol test after explaining to her for a second time, the penalties associated with refusing consent pursuant to R.C. 4511.19.1 (C)(2)(a). Busi stated that the appellant signed the form and the record demonstrates that appellant's blood sample indicated an alcohol content level of .18. Appellant's passenger and friend, David Washington testified that five minutes after the accident he did not notice that the appellant's speech was slurred or that she had bloodshot eyes or an odor of alcohol about her person. On cross-examination he admitted that he had been drinking "quite a bit" before the accident (Tr. 54); that he was intoxicated at the time of the accident; that things happened very quickly and that his testimony was "as good 2 as" he could recollect. (Tr. 55) Ruth Ann O'Leary, appellant's aunt testified that she saw the appellant in the emergency room at 3:30 a.m.; that she did not notice slurred speech, bloodshot eyes or an odor of alcohol about the appellant's person. She stated that the officer at the hospital did not tell her that the appellant was under arrest but did tell her that the appellant could be charged with failure to control a vehicle or DUI or no offenses at all. The appellant testified that she could not remember anything 2 Washington also admitted that he was uncertain whether the police car that responded to the scenes black and white or unmarked and also admitted that he could not remember whether Officer Busi asked him for his sweater to cover the appellant that evening. - 5 - between the time she hit the pole and the time she was admitted to the emergency room. She disputed Officer Busi's testimony indicating that he did not advise her of her Miranda rights but obtained consent to the blood test by telling her that she would lose her license for a year if she refused. She also stated that she did not know or understand that she was under arrest when she consented to the test although she remembered an officer reading a form to her which she subsequently signed. Officer Fuerst testified that pursuant to Officer Busi's orders he proceeded from the scene of the accident and followed the ambulance to the hospital taking up residence in emergency room No. 7 where the appellant was being treated. He further stated that Officer Busi entered the room shortly thereafter and advised the appellant of her Miranda rights prior to reading the ALS form which outlined the penalties for refusing to consent to blood alcohol testing. See, R.C. 4511.19.1(C)(2)(b). Fuerst stated that the appellant consented to the test and signed the form after Busi explained the ramifications associated with the penalties enumerated in the form. After closing arguments, the court overruled appellant's motion. She withdrew her not guilty plea and entered a plea of no contest. The instant appeal followed. I THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS THE RESULTS OF A BLOOD TEST TAKEN FROM APPELLANT IN VIOLATION OF THE FOURTH AMENDMENT. In her sole assignment of error, appellant claims that - 6 - appellee lacked probable cause to arrest her. Appellant relies upon a number of cases which she claims require sobriety testing as a pre-requisite to establishing probable cause. We find appellant's arguments to be unpersuasive. Probable causes exists where there is a "reasonable ground of suspicion, supported by circumstances sufficiently strong in and of themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Huber v. O'Neill (1981), 66 Ohio St.2d 28, 30. To support an arrest for drunk driving, the arresting officer must observe not only the indicia of alcohol consumption, but also "the existence of some reasonable indicia of operation while under the influence of alcohol * * *." State v. Taylor (1981), 3 Ohio App.3d 198, 198. Ohio Appellate Courts have held that where a police officer arrives at the scene of an accident without actually witnessing it, an officer has probable cause to arrest, if a suspect is found in the automobile with an odor of alcohol on or about their person. See, Westlake v. Vilfroy (1983), 11 Ohio App. 3d 26, paragraph one of the syllabus; Oregon v. Szakovits (1972), 32 Ohio St.2d 271 and Fairfield v. Regner (1985), 23 Ohio App. 3d 79. In the instant case, Officer Busi testified that he observed a single car accident, found the appellant in the driver's seat and detected a moderate odor of alcohol about her person. Hence, such evidence satisfies the threshold for probable cause set forth in - 7 - 3 the syllabus of Vilfroy. In addition, Busi testified that appellant's speech was somewhat slurred; that she admitted to drinking two glasses of wine and that there was no evidence at the scene to indicate that the appellant slowed her vehicle or took any evasive action to avoid the accident. Busi also testified that circumstances indicated that the appellant had been celebrating her passenger's birthday for most of the evening and early morning; that the appellant was proceeding directly from a bar at the time of the accident and that he did not believe appellant's passenger's assertion that appellant had consumed only two glasses of wine that evening. Hence, there were reasonable grounds for suspicion that the appellant was DUI notwithstanding her theory that wet pavement and bald tires caused the accident. Appellant also maintains that she was not under arrest for DUI at the time appellee read the ALS form to her and that therefore, 3 Paragraph one of the Vilfroy syllabus states that: The police officer's observations that defendant was lying on the grass, in the early morning hours, with the odor of alcohol on her breath, near a car that struck a utility pole, do not demonstrate the defendant's guilt beyond a reasonable doubt, but do provide probable cause for her arrest for operating a vehicle while under the influence of alcohol. Id., at 26. In Vilfroy, no sobriety tests were conducted because the woman fainted. While appellant claims that Vilfroy, is off point because the officers were barred from conducting sobriety tests and because Vilfroy failed to move to suppress her breathalyzer test, we find that the case nevertheless stands for the proposition of law that an accident and the odor of alcohol on the driver's person is sufficient to establish probable cause for DUI. - 8 - 4 her implied consent was not triggered pursuant to R.C. 2511.19.1. Again we, find appellant's arguments to be unpersuasive. The Ohio Supreme Court has held that an arrest occurs when the following four elements are present: (1) an intent to arrest, (2) under real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person and (4) which is so understood by the person arrested. See, State v. Darrah (1980), 64 Ohio St.2d 22. Officer Busi unequivocally testified that he suspected the appellant was DUI and that he intended to arrest her. Hence, the first and second elements of Darrah have been established. With respect to the third element, constructive seizure and detention of the appellant occurred when Officer Busi ordered Officer Fuerst to follow the ambulance to make sure it did not stop anywhere and further ordered him to observe the appellant in the emergency room 5 to make sure that she did not drink anything. Officer Fuerst's 4 R.C. 4511.19.1(A) provides in relevant part that: Any person who operates a vehicle upon a highway . . . of this state shall be deemed to have given consent to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcohol, drug or alcohol and drug content of his blood, breath or urine if arrested for operation a vehicle while under the influence of alcohol... . The chemical test shall be administered at the request of a police officer having reasonable grounds to believe that the person has been operating a vehicle...while under the influence of alcohol... . 5 Busi testified that he ordered Fuerst to maintain contact with the appellant so that a timely and proper blood sample could be drawn. - 9 - continuous, privileged and otherwise inappropriate residence in the privacy of appellant's emergency treatment room is ample evidence of such seizure and detention. The fourth element of Darrah, has also been established as both officers testified that the appellant was advised of her Miranda rights prior to the reading of the ALS 6 form which she admitted to hearing. While appellant denies that she was advised of her rights prior to the reading of the form and the giving her consent, it is well settled that in reviewing a motion to suppress, the credibility of the witnesses is a matter for the trier of fact. See, State v. Fanning (1982), 1 Ohio St.3d 19. Hence, the presiding judge in the instant case was free to find the testimony of the responding officers to be more credible than the self-serving testimony of the appellant and her intoxicated friend or the arguably irrelevant testimony of her aunt. It is also well settled that where there is substantial evidence to support the factual findings of a trial court, its ruling will not be disturbed on appeal absent an error of law. See, State v. De Pew (1988), 38 Ohio St.3d 275. Upon review, we find that substantial, competent and credible evidence was adduced during appellant's suppression hearing to support the Findings of Fact and Conclusions of Law set forth in the trial court's opinion. Accordingly, the trial court did not err in overruling appellant's motion to suppress. Appellant's sole assignment of error is 6 Appellant at no time argued that she did not hear or understand the content of the ALS form which was read to her. - 10 - overruled. The court's ruling and her conviction are affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Lakewood Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J., AND NUGENT, J., CONCUR. ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- meat of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .