Constructive Arrest Delivered Up by the Court of Appeals When Needed

By | June 26, 2013

There are times when the prosecutor needs you not to be under arrest. This is usually when probable cause to arrest is a close run thing and the later that the judge can find that the suspect was placed under arrest, the more evidence the judge can point to in order to support the probable cause needed for the arrest. If the arrest occurs too early, the evidence is suppressed and the chargs have to be dismissed against the suspect.

Thus we see the Courts all over Ohio engaging in all sorts of judicial gymnastics to find people not under arrest when the probable cause is insufficient (even when guns are pointed at them or when they are in the back of a police car in handcuffs). These people are not under arrest.

But when the police need you to be under arrest, the slightest showing of force is all that is necessary.

When does the suspect need to be under arrest in order to get the evidence in? Because Ohio’s statutory implied consent law is found in R.C. 4511.191(A)(2), which states in pertinent part:

“Any person who operates a vehicle * * * 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 * * * 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.” (emphasis in allcaps added)

So in order for the police to use implied consent to get the guy’s blood, he needed to be under arrest. But when there has been a crash and injuries and the suspect is in the hospital, the police often forget about the arrest requirement and they just read the suspect the form without arresting him. When that happens, the suspect can move to suppress the results of the test taken from him because the Fifth District Court of Appeals held in State v. Kirschner, 5th Dist. No.2001 CA00107, 2001 Ohio 1915, that a valid arrest must precede the seizure of a bodily substance, including a blood draw, and must precede an implied consent given based upon Form 2255. State v. Rice, 129 Ohio App.3d 91, 98, 717 N.E.2d 351 (1998).

In the case of State v. Hollis, 2013 Ohio 2586, after a pretty bad traffic accident, the highway patrol officer made contact with suspect in the emergency room. The suspect was laying on a hospital bed covered with a blanket, and the trooper did not note any apparent visible injuries. He noticed the odor of alcohol about appellant’s person and intended to read him the BMV 2255 form.

If the trooper had read the form to the guy, the form had the words “you are under arrest” in it. But the failure to read the BMV form 2255 was a big problem until the Fifth District Court of Appeals came up with the following expedient:

The Court wrote “But the trooper was unable to read the form, however, because appellant would not respond to his questions. [The trooper] described appellant crying and wailing, conscious but unresponsive to [his] questions and statements. [The trooper] said he spent several minutes attempting to communicate with appellant, who said nothing or cried and “toss[ed] his head back and forth.” [The trooper] filled out the BMV 2255 but noted appellant was unable to sign because he was unresponsive.”

Unexplained by the Fifth District Court of Appeals was why it was necessary for the suspect to answer questions in order for the trooper to read a paragraph to him. Why couldn’t the trooper have just read the form to the suspect while he lay there on the bed crying? Whether or not someone is under arrest is examined by the court under an objective rather than a subjective standard.

Nothing in the law requires that the suspect having the form read to him needs be quiet. But the Court needed to make some sort of finding that it was impossible for the trooper to have read the form to the suspect in order to reach the result it needed to have the conviction stand. Apparently a trooper’s ability to read a form to a suspect vanishes when the suspect is crying and unresponsive.

But the Fifth District Court of Appeals hung its hat on the concept of “constructive arrest” stating that: “the reality of constructive arrest, particularly in cases such as the one sub judice in which the subject of the drunken driving investigation is hospitalized or undergoing treatment and arrest per se is not feasible. That doesn’t mean the investigation stops. In the instant case, the trial court applied the rationale of our decision in State v. Groves, which we also find to be applicable. 5th Dist. No. 10CA18, 2010 Ohio 5089. In that case, the driver was hospitalized when he was questioned by the officer and read the BMV 2255; the driver was never taken into “custody” as such because he was undergoing medical treatment and there was no time for a citation to be issued. Nevertheless, we found as follows:

“Despite this court’s holding in State v. Kirschner, [5th Dist.] No.2001CA00107, 2001 Ohio 1915, the administrative regulations in the case sub judice were fulfilled. Appellant was told he was under arrest. A citation would have been issued at the hospital but for appellant’s medical emergency. To disallow the results of the blood draw because of the intervening urgent circumstances would place form over substance. The purpose of the mandatory language of the implied consent law is to inform the suspect of his various rights under 4511.191 and the administrative license provisions for non-consent. The language contained in the BMV 2250 form was sufficient to establish an “arrest.” State v. Groves, 5th Dist. No. 10CA18, 2010 Ohio 5089, ¶ 19.

But in this case the suspect was never told he was under arrest and never read the BMV 2255. But that was okay with the Fifth District, who skipped past that right to the following wording: “We find the trooper’s interaction with appellant at the hospital in obtaining the blood sample after his constructive arrest complied with R.C. 4511.191(A)(2) and is reasonable under the Fourth Amendment. See, State v. May, 5th Dist. No. 2010CA1, 2010 Ohio 4594, ¶ 22, appeal not allowed, 127 Ohio St. 3d 1547, 2011 Ohio 647, 941 N.E.2d 803.”

“After his constructive arrest”? When did that happen? Where was the analysis of how there was a constructive arrest? Not very clever.