The Akron Legal News

Appeals court reverses lower court; rules for retrial in vehicular homicide case

ANNIE YAMSON
Special to the Legal News
Published: March 30, 2015

A split panel of three judges in the 8th District Court of Appeals reversed a lower court’s aggravated vehicular homicide conviction, sending back to court for a retrial.

Charles Dukes had been convicted of aggravated vehicular homicide and OVI with a blood alcohol content that was nearly double the legal limit.

The majority, whose opinion was authored by Judge Mary Boyle, held that the Cuyahoga County Court of Common Pleas erred when it refused to suppress the evidence of Dukes’ blood alcohol level and it vacated both of his convictions.

Judge Melody Stewart dissented, holding that even with the suppression of the blood alcohol test, there was enough evidence to convict Dukes of aggravated vehicular homicide.

According to the procedural history of the case, Dukes was indicted in February 2013 after his van collided with a vehicle driven by Thomas Thomas, who died as a result of the incident.

Before his trial, Dukes moved to suppress evidence against him relating to a blood sample taken by police while he was in the hospital following the accident.

Dukes argued that the police did not comply with Ohio Adm.Code 3701-53 and R.C. 4511.19(D)(1)(b) when collecting the blood sample.

The trial court overruled the motion to suppress and, at the close of evidence, a jury found Dukes guilty of aggravated vehicular homicide resulting from causing someone’s death recklessly.

However, he was found not guilty of the subsection of the aggravated vehicular homicide statute that specifies that an offender caused someone’s death as a proximate result of driving under the influence of alcohol.

The jury also found Dukes guilty of driving while under the influence with a blood alcohol level of 0.15.

The Cuyahoga County court sentenced Dukes to five years in prison and notified him that he could be subject to up to three years of discretionary postrelease control.

Dukes appealed from that judgment, arguing that the evidence of his blood test should have been suppressed because the police mishandled the blood.

Reviewing the evidence, the appellate panel found that the blood was, in fact, mishandled.

First, the Ohio Administrative Code specifies that blood to be used for testing “shall be sealed in a manner such that tampering can be detected.”

Dukes maintained that the manner in which his blood was stored was insufficient.

The appellate panel reviewed the testimony of Nurse Paul Ondus, who drew the blood and then placed the sample into a biohazard bag that he handed to police officers. His testimony indicated that he did nothing to seal the bag.

“Although Ohio Adm.Code 3701-53-05(E) does not require evidence tape, it still requires the samples to be sealed in such a way so that tampering can be detected,” Boyle wrote. “A biohazard bag, without more, is insufficient.”

Dukes also argued that the state failed to establish substantial compliance with the requirement that his blood sample be refrigerated.

“We agree,” Boyle wrote. “The state provided evidence that as soon as Nurse Ondus obtained the blood samples from Dukes, he handed them to Det. Cerny; after five or 10 minutes of talking to other police officers, Det. Cerny took the blood samples to the medical examiner’s office.”

There was no other evidence presented at trial that the blood sample was refrigerated from the time that the detective dropped it off until the time it was tested.

The appellate panel also ruled that the lab director of the Cuyahoga County Medical Examiner’s Office, Dr. Thomas Gilson, was qualified to have a laboratory director’s permit, as required by the Ohio Department of Health, but the state failed to prove that he actually had it.

“Accordingly, we are constrained to sustain Dukes’ first assignment of error as the state did not establish substantial compliance with the ODH regulations regarding the sealing of Dukes’ blood sample, refrigerating it and whether the lab director had obtained a permit from the director of health,” Boyle wrote. “Thus, the trial court erred when it denied Dukes’ pretrial motion to suppress evidence surrounding the blood alcohol test.”

At this point, the appellate panel split in its opinion.

Boyle and Presiding Judge Mary Eileen Kilbane agreed that that evidence of the inadmissible blood alcohol test was prejudicial to Dukes’s vehicular homicide conviction.

Therefore, they vacated both of Dukes’ conviction and gave permission to the state to retry Dukes on the vehicular homicide charge.

Judge Stewart, however, wrote that the blood alcohol content was irrelevant to the vehicular homicide conviction because Dukes was convicted of causing someone’s death recklessly, not causing someone’s death as a result of driving under the influence.

“The jury had ample evidence that Dukes recklessly operated his vehicle when causing the victim’s death: He was traveling nearly 60 m.p.h. in a 25 m.p.h. speed zone at 5:55 a.m. (in the month of January) without his headlights on,” Stewart wrote.

She also held that there was other evidence proving Dukes’ intoxication, including his slurred speech, the smell of alcohol emanating from him and his admission to the police that he had been drinking beer and a Long Island iced tea.

“From this evidence, the jury could find that Dukes acted recklessly by speeding while under the influence of alcohol,” Stewart wrote.

The case is cited State v. Dukes, 2015-Ohio-676.

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