648 N.E.2d 597 | Ohio Ct. App. | 1994
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *373
On May 8, 1993, Trooper Robert Lindenborn of the State Highway Patrol observed defendant-appellant, Roger A. George, driving a truck west on Interstate 70 in Preble County, Ohio. Trooper Lindenborn witnessed appellant weave in his lane of travel over the white edge line five times, each time by a distance of one to two feet. Trooper Lindenborn stopped appellant. After noticing a smell of alcohol about appellant, slurred speech, and bloodshot eyes, Trooper Lindenborn administered a field sobriety test to appellant, which he failed. Appellant was subsequently arrested and transported to a patrol post, where he was given a Breath Alcohol Content test ("BAC test"). Appellant registered on a BAC Verifier as having .122 grams of alcohol per two hundred ten liters of breath. Appellant was charged with driving under the influence of alcohol in violation of R.C.
Following a motion to bifurcate, appellant was tried separately on each charge in the Eaton Municipal Court of Preble County, Ohio.1 On November 4, 1993, appellant was convicted of driving under the influence of alcohol in violation of R.C.
On appeal, appellant raises the following assignments of error:
Assignment of Error No. 1: *374
"The trial court erred in finding defendant appellant guilty of a violation of O.R.C.
Assignment of Error No. 2:
"The trial court erred in admitting the BAC verifier result as the state failed to prove that the Ohio Department of Health rules and regulations had been followed by the Ohio State Patrol."
Assignment of Error No. 3:
"The trial court erred in its determination that the four issues listed in Issue I[I] [sic] of appellant's brief and raised as issues by the state at trial went to the weight of the evidence rather than the admissibility of the BAC test result."
In his first assignment of error, appellant argues that there was insufficient evidence to find him guilty beyond a reasonable doubt of violating R.C.
Because appellant restates in his third assignment of error arguments made in his second assignment of error, the two assignments of error will be considered together. Appellant argues that the trial court erred in admitting the results of his BAC test into evidence because it lacked a proper foundation. Specifically, appellant argues that the state failed to prove the minimum required reliability of the qualifications of the operator, the condition of the machine, and the test protocol followed. Appellant failed to raise these issues in a motion to suppress, but did object to the admissibility of the BAC test results at trial.
The state argues, relying on Defiance v. Kretz (1991),
"R.C.
"The admissibility of test results to establish alcoholic concentration under R.C.
This passage makes clear that the principal issue in a prosecution for driving under the influence in violation of R.C.
Some confusion exists concerning the scope of Defiance
because it appears to allow a defendant the opportunity to raise nonconstitutional challenges to the admission of BAC test results in a motion to suppress. This interpretation of Defiance
may be counterintuitive because Traf.R. 11(B) and Crim.R. 12(B) only require a motion to suppress to be raised prior to trial when it is argued that evidence was illegally obtained. In addition, both Traf.R. 11(B) and Crim.R. 12(B) state that "[a]ny defense, objection, or request which is capable of determination without the trial of the general issue" may be raised before trial by motion. Under the per se subsections of
Defiance raises a question concerning when a defendant should challenge the admission of a BAC test result. Two different schools of thought have developed concerning this issue.
In State v. Guy (Apr. 30, 1993), Ottawa App. No. 92-OT-023, unreported, 1993 WL 134000, the Sixth District Court of Appeals held that a defendant waives any objection to the admission of BAC test results if the results are not challenged in a motion to suppress. (Emphasis added.) See, also, State v. Simmons (Nov. 9, 1993), Ross App. No. 92CA1927, unreported, 1993 WL 473217.Simmons and Guy stand for the proposition that BAC test results are automatically admitted into evidence when a defendant does not file a motion to suppress.
A second position, and the one which we adopt today, holds that even if a defendant does not file a motion to suppress, the state must still establish a minimum evidentiary foundation relating to the execution of the test in order for the BAC test results to be admitted into evidence. See State v. Young (1993),
The question then becomes what minimum foundation the state must establish. As the Tenth District aptly pointed out, there are two different foundational challenges a defendant could make in these cases:
"One, of course, is the actual operation of the test itself. This would include all of the items on the operator's checklist for the actual drawing of the bodily substance and the reading of the test result. The foundation for the working of the machinery itself falls into a different category. * * * [Cincinnati v. Sand (1975),
The state is required to demonstrate the minimum foundation required by R.C.
In this case, appellant argues that the state failed to prove Trooper Lindenborn was properly certified to operate the BAC Verifier because he failed to produce a copy of his certificate and because Trooper Lindenborn did not testify that he was a senior operator. First, Trooper Lindenborn testified that he was a certified operator. This testimony was not challenged by appellant. The trial court was entitled to rely on Trooper Lindenborn's testimony that he was a certified operator. SeeState v. Adams (1992),
Appellant also argues that he was not in Trooper Lindenborn's view for three minutes of the required twenty-minute observation period to make sure that there was no oral ingestion of any substance, and therefore, the BAC test results were inadmissible. Appellant was tested approximately twenty-two minutes after he was pulled over. Appellant testified that he had a mint in his mouth while he was driving, but Trooper Lindenborn asked him to remove it when he was stopped. Trooper Lindenborn testified that he observed appellant for twenty minutes prior to administering the BAC test. Trooper Lindenborn did testify that appellant was out of his view for three minutes, but during that time appellant was handcuffed and secured in the back of a police cruiser and was unable to ingest any substance. Appellant testified that he did not ingest any substance after being stopped.
The state was only required to offer evidence that "during the relevant period the subject was kept in such location or condition or under such circumstances that one may reasonably infer that his ingestion of any material without the knowledge of the witness is unlikely or improbable." Adams, supra,
The remainder of appellant's arguments challenge the working of the BAC Verifier. These challenges should have been made in a motion to suppress. Since he did not file a motion to suppress, appellant's remaining arguments are not properly before this court. Lee, supra. Accordingly, appellant's second and third assignments of error are overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
KOEHLER and WILLIAM W. YOUNG, JJ., concur.