State v. Urso, 195 Ohio App. 3d 665

Background

Appellant Keith J. Urso was convicted by jury in Trumbull County for OVI with a prior felony OVI and a five-or-more OVI specification within 20 years.
Indictments charged OVI under R.C. 4511.19(A)(1)(a) and (G)(1)(e) and a separate count for BAC .286 under R.C. 4511.19(A)(1)(h) and (G)(1)(e).
Pretrial bail was denied on the state's motion, a ruling previously affirmed on appeal in State v. Urso, 2010-Ohio-2151.
Urso moved to suppress the breathalyzer result and to exclude his pre-test admission; the trial court denied both motions.
At trial, a 9-1-1 call by Keith Beil was admitted; officers testified to a strong odor of alcohol and Urso’s incoherence, leading to arrest.
The BAC DataMaster test yielded a .286 BAC; Urso testified he had high blood pressure and claimed his intoxication result could be explained otherwise, but the jury found him guilty on both counts.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the DataMaster breath test was admissible	Urso contends the DataMaster was improperly used due to a shared outlet with a small refrigerator.	Urso argues the shared outlet violated the DataMaster’s technical requirements and possibly health regulations.	No reversible error; shared outlet not shown to cause prejudice; no substantial compliance violation proven.
Whether Urso’s pre-test admission was illegally obtained	Urso claims Miranda warnings were required before any custodial interrogation related to the test.	State argues the question about taking the test was not custodial interrogation and did not elicit incriminating responses.	Miranda warnings not required; the question was procedural and noncustodial; admission upheld.
Admissibility of the 9-1-1 recording under confrontation clause	Beil’s 9-1-1 recording was improperly admitted, violating Confrontation Clause.	Recording is admissible as nontestimonial under Davis and as a present-sense impression.	Recording admissible; Beil unavailable due to medical condition; transcript harmless error beyond reasonable doubt.
Whether the trial court should have granted a mistrial	Discrepancies between the 9-1-1 transcript and recording prejudiced Urso.	No reversible error; transcript accuracy issues were not shown to be material.	No abuse of discretion; mistrial denied.
Whether the trial court erred by excluding evidence about DataMaster calibration	Manual and prior malfunctions could challenge the reliability of the DataMaster.	Vega limits attacks to device-specific reliability; prior malfunctions are irrelevant.	Properly excluded; Vega controls; no reversible error.

Key Cases Cited

State v. Burnside, 100 Ohio St.3d 152 (Ohio 2003) (mixed law-and-fact standard for suppression, de novo review of law)
State v. Dierkes, 2009-Ohio-2530 (Ohio 2009) (substantial compliance burden after suppression; pretrial ruling framework)
State v. McCauley, 2010-Ohio-6446 (Ohio 2010) (pre-test questions about taking breathalyzer not custodial interrogation)
Davis v. Washington, 547 U.S. 813 (U.S. 2006) (confrontation clause: testimonial vs. nontestimonial statements)
State v. Vega, 12 Ohio St.3d 185 (Ohio 1984) (legislative delegation on reliability of breath testing instruments)
State v. Massie, 2008-Ohio-1312 (Ohio 2008) (limits on challenging general reliability of breathalyzers at trial)
State v. Casner, 2011-Ohio-1190 (Ohio 2011) (trial limitations on general reliability challenges to breathalyzers)
State v. Aleshire, 2010-Ohio-2773 (Ohio 2010) (French limits and Vega framework; admissibility considerations)
State v. Waddy, 1992 Ohio St.3d 424 (Ohio 1992) (tape-transcript parity; material differences standard for mistrial ruling)