State v. Mason , 99 Ohio App. 3d 165 ( 1994 )

I respectfully dissent from the majority's decision to reverse appellant's conviction. I agree with the majority that the conduct of the police in this particular case violated the statutory right to counsel provided for in R.C. 2935.20. However, I do not believe that a violation of a statutorily created right to counsel amounts to a constitutional due process violation which would require suppression of the breathalyzer test results. There is no Sixth Amendment constitutional right to counsel prior to taking a breathalyzer test. McNulty v. Curry (1975), 42 Ohio St.2d 341, 71 O.O.2d 317, 328 N.E.2d 798. The Ohio Supreme Court in McNulty held that the stage of an investigation where a defendant is requested to undergo a breathalyzer test is not a "critical stage" and, therefore, there is no constitutional right to counsel. Where there is no constitutional violation, the exclusionary rule is not applicable. Kettering v. Hollen (1980), 64 Ohio St.2d 232, 18 O.O.3d 435, 416 N.E.2d 598. Moreover, it is generally well accepted that Ohio does not recognize the application of the exclusionary rule to violations of R.C. 2935.20 in prosecutions for driving under the influence. See Mason v. Albertson (May 4, 1992), Warren App. No. CA91-07-059, unreported, 1992 WL 93075; State v. Colvin (Apr. 10, 1991), Fairfield App. No. 26-CA-90, unreported, 1991 WL 59843;State v. Myers (1990), 66 Ohio App.3d 717, 586 N.E.2d 155;Columbus v. Reid (1986), 32 Ohio App.3d 7, 513 N.E.2d 351. For these reasons, I would conclude that the exclusionary rule does not apply to violations of the statutorily created right to counsel prior to taking a breathalyzer test. I, therefore, would hold that the trial court properly denied appellant's motion to suppress the results of his breathalyzer test, and would affirm the judgment of the trial court.