DocketNumber: No. 90-OT-057.
Citation Numbers: 601 N.E.2d 537, 77 Ohio App. 3d 162
Judges: <italic>Per Curiam.</italic>
Filed Date: 9/13/1991
Status: Precedential
Modified Date: 1/13/2023
This is an appeal from the decision and sentence of the Port Clinton Municipal Court which, following a plea of no contest, found appellant guilty of driving under the influence of alcohol. Because we find that the trial court erred in refusing to grant appellant an evidentiary suppression hearing, we reverse.
On July 1, 1990, appellant, Gaetan Rousseau, was stopped by a Port Clinton police officer after the officer observed appellant make a right turn on red at an intersection which was posted as prohibiting such a turn. When the officer approached appellant after the stop, he noted that appellant's speech was slurred and there was a "moderate odor of intoxicants." The officer then requested that appellant perform four separate field sobriety tests, each of which appellant failed. Appellant was then transported to the Port Clinton Police Department where he submitted to a breath test on an intoxilyzer machine which indicated that appellant had an equivalent blood alcohol content of .152 percent. Appellant was cited for driving under the influence of alcohol in violation of R.C.
Appellant pled not guilty and, through counsel, filed a "motion to suppress/motion to dismiss/motion in limine." The motion sought to limit or suppress (1) results of appellant's field sobriety and breath tests, (2) appellant's statements relative to alcohol consumption, and (3) police testimony relative to appellant's sobriety. The motion listed nine grounds upon which appellant asserted suppression or limitation of evidence should be had:
"1. There was no lawful cause to stop the Defendant, detain the Defendant, and/or probable cause to arrest Defendant without a warrant.
"2. The test or tests to determine the Defendant's alcohol and/or drug level were not taken voluntarily and were unconstitutionally coerced when obtained due to the threat of loss of license not sanctioned by the requirement of O.R.C. §
"3. The individual administrating the Defendant's test of alcohol did not conduct the test in accordance with the time limitation and regulations of the State of Ohio in O.R.C. §
"4. The breath testing instrument was not properly surveyed to determine radio frequency interference by two qualified police officers utilizing two radios and surveying from all
position all handheld, mobile and base radios required by OAC §
"5. The operator of the breath testing instrument did not insure that the Defendant's test was conducted free of any radio transmissions from within the affected RFI zone as determined by a properly performed RFI survey OAC §
"6. The solution used to calibrate the testing instrument was invalid and not maintained in accordance with OAC §
"7. The operator was not subject to certain periodic on-site surveys by representatives of the Director of Health as is required pursuant to OAC §
"8. The breath testing instrument utilized in this case was last tested for radio frequency on June 22, 1989. Since that time said breath testing *Page 165
instrument has required internal electronic repair and maintenance, and thereby requiring a new RFI survey as pursuant to OAC §
"9. Statements from the Defendant were obtained in violation of his
The trial court denied appellant an evidentiary hearing on grounds two through nine because, according to the court, they were "* * * insufficient as a matter of law on their face to require a hearing * * *." Additionally, the trial court noted items two and eight were insufficient in that the claims "d[id] not justify relief."
On September 14, 1990, a hearing was held on the only remaining ground for suppression, whether the police had probable cause to stop or detain appellant. Following this hearing the trial court denied appellant's motion to suppress.
On October 26, 1990, appellant filed a motion requesting that the trial court reconsider its denial of a hearing on item four of the original motion. Appellant cited as reason for the reconsideration request the trial court's subsequent allowance of a hearing in a later case based on a motion with identical factual allegations. The testimony elicited at the hearing in the subsequent case indicated that the Radio Frequency Interference ("RFI") survey conducted on the Port Clinton Police Department's intoxilyzer machine had not been conducted in full conformity with the regulations governing such surveys. The trial court denied appellant's motion for reconsideration. Appellant then withdrew his not guilty plea, entered a plea of no contest with a consent to finding, and was found guilty. From this decision appellant brings this appeal citing the following assignments of error:
"1. The trial court erred in denying the appellant's motion to suppress without a pre-trial evidentiary hearing.
"2. The trial court erred when denying appellant's motion to suppress and motion for reconsideration by effectively denying appellant equal protection under the laws, due process of law and failing to allow a further suppression hearing in light of the newly discovered facts and prior ruling applied by the same trial court.
"3. The trial court erred as a matter of law, in denying appellant's motion to suppress; since, there is insufficient evidence on the record to support a finding that there was probable cause to arrest the appellant for operation of a motor vehicle while under the influence of alcohol." *Page 166
During the pendency of the instant appeal, the Supreme Court of Ohio has addressed this very issue as it relates to chemical testing for blood alcohol content in the prosecution of driving under the influence charge brought under R.C.
However, the Supreme Court found that a violation of R.C.
The court reasoned that an in limine motion for an intoxilyzer test is the "functional equivalent of a motion tosuppress where it `renders the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.'" (Emphasis *Page 167
added.) Id. at 4,
Viewing the instant matter in light of the holding ofKretz that a motion in limine relative to an intoxilyzer test is the equivalent of a motion to suppress, we must conclude that items three through eight of appellant's motions were claims which would justify relief if established. Accordingly, the trial court erred in not scheduling an evidentiary hearing on these issues. Appellant's first assignment of error is well taken.
As discussed above, at the time when appellant's motions were pending authority indicated that a motion contesting the sufficiency of the testing of an intoxilyzer's accuracy was a motion in limine and not subject to mandatory pretrial hearings.Solon v. Mallion, supra. A defendant was not precluded from attacking the fundamental basis of a breathalyzer test at trial.State v. Griggy (1982),
On consideration whereof, the court finds that substantial justice was not accorded the defendant. The judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this decision.
Judgment reversedand cause remanded.
GLASSER, MELVIN L. RESNICK and SHERCK, JJ., concur.
"(A) No person shall operate any vehicle * * * within this state, if any of the following apply:
"(1) The person is under the influence of alcohol * * *;
"* * *
"(3) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath."