COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70866 : CITY OF MIDDLEBURG HEIGHTS : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION BERNARD W. KROGER : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 1, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Berea Municipal Court Case No. 95-TRC-03994-1 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: PETER H. HULL, ESQ. RICHARD BARBERA, ESQ. 2000 Standard Building 247 East Smith Road 1370 Ontario Street Medina, Ohio 44256 Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant appeals from the judgment of the trial court wherein he was found guilty of violating R.C. 4511.19(A)(1), driving under the influence. Defendant pled "no contest" after the trial court denied his motion to suppress. On appeal, he argues that the trial court should have suppressed the results of his blood alcohol concentration ("BAC") test because he was unable to obtain his own independent BAC test. For the reasons that follow, we affirm the judgment of the trial court. On November 17, 1995, defendant was pulled over by the Middleburg Heights Police Department. After defendant failed the field sobriety tests, he was charged with driving under the influence, driving with a prohibitive blood alcohol content, and failing to maintain a continuous lane. Upon being taken to the police station, the police administered a breathalyzer test which revealed a BAC of .207. The police then advised defendant that he had a right to an independent chemical test. The police further informed defendant that the police would not take him to the hospital to have the test performed. The police added, however, he could call someone who was sober to drive him there for the test. Defendant did not call anyone. Prior to trial, defendant moved to suppress the results of the police-administered breathalyzer. The trial court denied this motion and issued the following order: - 3 - Defendant was arrested upon probable cause that he was operating a motor vehicle under the influence of alcohol. At the booking room, the officer advised Defendant of his rights including the breath test that was offered and taken at the police station (which showed breath alcohol content of 0.207). Defendant told the officer he wished to take another test--a blood test. Defendant kept asking for another test. He was told he could get the test when released and that he should call and have a responsible person who is sober pick him up and arrange for the test. Defendant said he didn't know who to call and that his daughter's phone was not listed and that he didn't remember the number. Defendant did not use or attempt to use the phone nor did he ask to use it. The officer did not suggest to Defendant he could call a cab or an ambulance or suggest any other way that Defendant could get another test. The officer testified that if the police breath test equipment was not working the practice was for the police to take a suspect to another police station to obtain a test. If there is some physical problem which prevents a breath test, the police will take the suspect to a hospital for a blood test. Southwest General Hospital is within two miles of the police station which is less than a third the distance to the nearest surrounding police station. The court finds that for this or any other defendant to effectively exercise his right to a test of his own choosing it must take place within a reasonable time after the police have finished their interview and testing of Defendant. To have a test the next morning some six to ten hours later is of no value. A reasonable opportunity to take one's own test can be afforded by Defendant being picked up by a responsible friend within an hour of the time the police are finished with processing Defendant. That, of course, can only take place if Defendant is released on bond. If arrangements can't be made for release to a responsible person, then the police can easily transport Defendant to the hospital which is less than two miles distant, have the blood drawn and return Defendant to the station. It is rare that a suspect asks for the blood test so the burden on the police would be minimal. Of course, Defendant must pay the cost of another test and if he can't make arrangements to pay, the trip to the hospital would be useless. The Court finds that the failure of the police to provide an effective means of obtaining a timely - 4 - additional test was unreasonable and a violation of Defendant's statutory rights. In this case, Defendant was tested at 0.207. There was no evidence that the breath testing techniques or equipment in this case would raise any doubt to the validity of this breath test. Considering the high reading, it is highly improbable that a blood test would have shown an alcohol level below 0.100. In State v. Weaver [(1993), 86 Ohio App.3d 427], Defendant repeatedly asked for a blood test but was denied the use of telephone to make arrangements for a blood test. The trial court overruled the motion to suppress but the Weaver court reversed on the basis that the violation of the statutory requirements is comparable to the exclusions of a breath test if the Department of Health are not complied with. While this Court is sympathetic with the notion that a violation of a statutory requirement implies that some sanction (i.e. exclusion from evidence) should apply, State v. Myers [(1971), 26 Ohio St.2d 190] holds to the contrary. In Myers, the Defendant was accompanied by his attorney throughout the booking process, was not advised of a right to another test (statute required that such advise [sic] shall be given), and Defendant did not request another test. The Supreme Court held that the evidence is not subject to exclusion unless it affirmatively appears that Defendant may have been prejudiced by the failure to advise. In the instant case the Court finds no prejudice to Defendant as the test reading was twice the per se standard and there was no evidence that the breath test's accuracy was in doubt. This Court feels compelled to follow the law as determined by the Supreme Court and finds that this case is not distinguishable from Meyers [sic]. Motion to Suppress is overruled. Defendant timely appealed and raised two assignments of error. Both assignments raise the same issue and state as follows: I. THE TRIAL COURT ERRED BY FAILING TO SUPPRESS THE RESULTS OF THE DEFENDANT'S DUI TEST. II. THE TRIAL COURT DID ERR AS A MATTER OF LAW WHEN IT DENIED THE APPELLANT'S MOTION TO DISMISS. - 5 - Defendant argues that the results of the police-administered BAC should be suppressed because his statutory rights under R.C. 4511.19(D)(3) were violated. This statute states in pertinent part as follows: The person tested may have a physician, a registered nurse, or a qualified technician or chemist of his own choosing administer a chemical test or tests in addition to any administered at the request of a police officer, and shall be so advised. The failure or inability to obtain an additional chemical test by a person shall not preclude the admission of evidence relating to the chemical test or test taken at the request of a police officer. (Emphasis added.) The Ohio Supreme Court recently revisited this precise issue and held that a violation of this statute does not require suppression of the police-administered test. The Court in Hilliard v. Elfrink (1996), 77 Ohio St.3d 155 stated in the syllabus as follows: The failure to advise a person chemically tested for determination of the concentration of alcohol in his blood, breath, urine, or other bodily substance that he "may have a physician, a registered nurse, or a qualified technician or chemist of his own choosing administer a chemical test or tests in addition to any administered at the request of a police officer," as required by R.C. 4511.19(D)(3), does not render the results of a police-administered test inadmissible in evidence at trial. (State v. Myers [1971], 26 Ohio St.2d 190, 55 O.O.2d 447, 271 N.E.2d 245, paragraph one of the syllabus, approved and followed.) In his brief, defendant concedes that he was advised of his rights under R.C. 4511.19(D)(3) to an independent test and given the opportunity to call someone to provide transportation. The statute proscribes only that a defendant be advised of his rights to an independent test. The statute does not require the police - 6 - 1 to take the defendant to an independent testing facility. Accordingly, no violation of R.C. 4511.19(D)(3) occurred. Defendant's assignment of error is overruled. Judgment affirmed. 1 Because it is unnecessary to rule further, we do not comment on whether the actions of the police were, as the trial court stated, unreasonable under the circumstances. Each community makes these decisions based on its particular resources. To impose this additional requirement on every community would necessitate legislative amendment. - 7 - 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 Berea Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., and MAHONEY*, J., CONCUR. DIANE KARPINSKI PRESIDING JUDGE *Judge Joseph E. Mahoney, Retired, of the Eleventh District Court of Appeals, sitting by assignment. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .