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Media > Newsletters > Law Enforcement Bulletin > December 2014 > OVI (Coerced Blood Draw): State v. Brunty

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OVI (Coerced Blood Draw): State v. Brunty

Question: When attempting to obtain a blood sample, is consent from the suspect valid if you say “you can consent or I will get a sample by force”.
Quick Answer:  No.  A statement like this is coercive in nature.  The individual is not given a real choice because any reasonable person would chose to say yes rather than have their blood taken by force.
State of Ohio v. Brunty, Eleventh Appellate District, Ashtabula County, Sept. 30, 2014
Facts:  As a result of a vehicle collision resulting in death, the prosecutor ordered a blood sample, without a warrant, to be taken from Jeffery Brunty by using any reasonable force necessary.  The trooper indicated there was no suspicion that Brunty was under the influence during the clearing of the accident scene. Troopers asked Brunty if he would voluntarily provide a blood sample, and he responded he would not.  The trooper then informed him he could obtain it by force, if necessary.  Brunty then said he did not wish to give one, but would go with the trooper and take the test.  The blood sample indicated Brunty had methamphetamine in his system.  Brunty filed a motion to suppress claiming the consent to the blood draw was not voluntary.
Importance: When police request the extraction of blood from an individual, that request constitutes a search and seizure.  A warrant or voluntary consent is required to proceed with the test.  Although Brunty eventually did agree, the consent was determined not to be voluntary, but coerced.  This is because the question was posed by the officer really wasn’t a question.  This was because a typical reasonable person in this same situation would consent to the test rather than be subject to a forcible withdrawal.  The fact that the officer told Brunty he would take the same by force coerced Brunty into saying yes.  In essence, Brunty had the choice to give blood by force or voluntarily—either way his blood was being taken. Brunty had no real choice in the matter at all. 
Keep in mind:  You may be thinking that this outcome doesn’t seem right because in OVI homicide cases you know you can get a blood test no matter what the person says, right?  So why wasn’t that the case here?  Well, implied consent is only triggered when an officer has reasonable grounds to believe the person was operating or in physical control of a vehicle under the influence.  Here, the troopers did not believe Brunty was under the influence at the scene so implied consent did not apply.  That is why the voluntariness of Brunty’s consent mattered.  Otherwise, a warrant would have been required to obtain the blood.  Ohio’s implied consent statute can be found at R.C. 4511.191.
More on OVI
Physical control from the passenger seat? A dispatch call comes in that a vehicle is pulled over on the Ohio Turnpike and a female is walking away from it.  You arrive at the mile marker, but find neither a vehicle nor a female.  About 20 minutes later you find an intoxicated female walking along the road.  You take her to the nearest travel plaza where she identifies the vehicle she had been in.  There is a man sitting in the passenger seat, and the keys are under his leg.  You notice a strong smell of alcohol and his red, glassy eyes. The man refuses to answer questions or take sobriety tests.  Based on your experience and training you know he is under the influence. The vehicle is secured, and you place the man in the patrol car.  You arrest him for OVI.  Did you have probable cause for an OVI since the man was in the passenger seat?  The court in Rodich says yes.  R.C. 4511.19 defines physical control of a vehicle when someone is in the driver’s seat and has possession of the vehicle’s ignition key. Based on facts that the vehicle moved from the point the female exited to the travel plaza, Michael Rodich was inside the vehicle with the keys, and no other person was around the car, circumstantial evidence reasonably leads to the conclusion Michael Rodich drove the vehicle to the plaza.  As a result, he was in physical control of the vehicle while under the influence, and the arrest was proper. State of Ohio v. Rodich, Sixth Appellate District, Sandusky County, Oct. 3, 2014
Intoxilyer 8000 Round Up: 
  • Accused may contest test results and operability of Intoxilyzer 8000:  The Ohio Supreme Court in Cincinnati v. Ilg, says a person charged with OVI now has the right to challenge the accuracy, competence, admissibility, relevance, authenticity, or credibility  of the results of the Intoxilyzer 8000.  The person may also challenge whether the machine was operated properly at the time of the test. This means facts like how you perform the test, your certification, and whether the machine is functioning properly will be called in to question more by criminals.  Make sure you are properly trained and your machine is certified and working properly before giving tests.  Also remember to properly document the testing process and results. Cincinnati v. Ilg, Ohio Supreme Court, Hamilton County, Oct. 1, 2014
  • Dry gas control test not necessary between first and second subject test: Karin Love stuck and killed a person waiting on the side of the highway near his broken down vehicle.  She was given a breathalyzer test and failed. Love claimed that O.A.C. 3701-53-04(B) was not complied with when the machine did not run a dry gas control test between subject test 1 and subject test 2. The court determined that the rule did not require a dry gas control test to be run between the subject tests but only before the test 1 and after test 2. State of Ohio v. Love, Eleventh Appellate District, Ashtabula County, Sept. 30, 2014
  • The meaning of “calendar year” for the proficiency exam: Blaine Michael was pulled over and charged with OVI.  He argued that the officer failed to take the proficiency examination once-per-calendar year because more than 365 days had gone by since the last successful examination.  The court determined that calendar year meant the period of time from January 1 through December 31.  This means an officer can take the examination at any time during the calendar year to be certified for that year.  As a result, an officer has until the end of the year to take the examination, even if in real-time more than 365 days elapsed since the last successful examination.  State of Ohio v. Michael, Third Appellate District, Allen County, Oct. 14, 2014