State v. HensleyState v. Hensley
This is an appeal from an Auglaize County Municipal Court judgment of conviction dated December 4, 1991. Defendant-appellant, Larry E. Hensley (“appellant”), was charged on September 22, 1991, with a violation of
On October 29, 1991, appellant filed a motion to suppress the breathalyzer results from evidence for the following reasons:
“1. The officer did not properly administer the breathalyzer test to the Defendant, according to the Rules and Regulations of the Health and Human Services.
. “2. The Defendant was not properly advised of his Mirandа warnings.”
By journal entry filed November 1, 1991, the trial court stated:
“A motion has been filed to suppress the results of a breath-alcohol test given to the defendant on September 22nd, 1991, and any and all statements made by him. The motion only sets forth vague conclusions оf improper action on the part of the officer and fails to set forth any operative facts as to the specific problems alleged to have occurred. Additionally no memoranda of law in support of the motion has [sic ] beеn filed. The plaintiff shall have ten days to supplement his motion.”
On November 7, 1991, an amended motion to suppress was filed setting forth the following reasons:
“1. The test instrument used in testing the Defendant is not a proper instrument as required in Section 3701-53-02 of the Ohio Department of Health rules and regulations.
“2. A proper radio frequency interference test as required by the Ohio Department of Health rules and regulations had not been properly performed as required by Section 3701-53-02(0).
“3. The machine’ that was used was not properly calibrated according to Section 3701-53-04 of the Ohio Department of Health rules and regulations.
“5. The personnel that calibrated the machine and performed the [sic] on the Defendant have not submitted to proficiency examinations according to Section 3701-53-08 of the rules and regulations of the Ohio Department of Health.
“6. The personnel that calibrated the machine and ran the test on the Defendant were not properly issued permits as required by Section 3701-53-09 of the rules and regulations of the Ohio Department of Health.
“7. The Defendant was not properly advised of his right to refuse or to obtain an independent test as required by
“MEMORANDUM
“The Defendant’s Motion to suppress from evidence is based upon the case of
[City of] Defiance vs. Kretz
[1991], 60 Oh.St.3rd, page 1-5 [
The trial court’s journal entry of November 19, 1991, states:
“The defendant has filed an amended motion to suppress evidence. The motion contains more specific basis as to the grounds suppression is sought under but no facts supporting those conclusions. Additionally, the memorandum of law is mеrely a citation to the case stating that suppression of evidence is a proper pretrial procedure in a OMVI case.
“The apparent shotgun approach to motion practice is evident when the first branch of the mоtion states that the test instrument was not an approved evidentiary instrument under O.A.C. 3701-53-02. However, the motion does not state what machine was used and that the machine used is not on the approved list. In fact, the court’s file would indicate that a BAC Verifier was used to test the breath sample and that a BAC Verifier is an approved evidentiary instrument.
“The portion of the motion dealing with Miranda rights shall be dealt with as a part of the trial to court as set for November 25, 1991.”
The trial was continued to December 3, 1991, and the appellant appeared with counsel and entered a plea of no contest and was found to be guilty of the
Appellant assigns as error:
“Breathalyzer test results must not be admitted into evidence absent proof, the burden of which resting
[sic
] on the state, that the test was accurate and properly administered under the Ohio Department of Health rules and regulations as required by
“A. The pretrial motion to suppress is the proper procedure for challenging breathalyzer test results when charged with a violation of R.C. 4511.-19(A)(3).
“B. The state has the burden of proving that it complied with the Ohio Department of Health rules and regulations pursuant to O.A.C. 3701-53 when administering a breathalyzer test.”
Since a portion of the appellant’s motion was concerned with Miranda rights and the trial court continued that portion of the motion to be dealt with during the trial itself and the appellant eliminated the necessity of that by entering his no contest plea in lieu of the trial, appellant waivеd that portion of the motion and any assignment of error connected with it.
As to the balance of the motion to suppress, while we had formerly found that the trial court was not required to consider on a motion to suppress those issues which go to thе admissibility of breath test results, we now follow the Supreme Court of Ohio in
Defiance v. Kretz
(1991),
The filing of proper pretrial motions to suppress is encouraged in order that the trial court not be required to stop during the course of a trial to determine collateral issues as to the means by which the prosecution obtained its еvidence. Further, the failure of defense counsel to object to any improperly obtained evidence as soon as he can, may reasonably lead the prosecution to believe that there is no objection to the evidenсe and the prosecution will therefore, based upon that reliance, not go to the trouble and expense of obtaining other necessary evidence for the trial. In addition, failure to timely raise objections to any such improper еvidence before trial may result in waiving the same.
However, defense counsel are not required to file motions to suppress evidence in every case. There should be some particular basis for the filing of the motion which relates to the impropriety of the obtaining of the evidence.
Kimmelman v. Morrison
(1986),
In the instant case, a listing of the machine utilized, the latest radio frequency interference (“RFI”) and calibration reports, and the test scores and permits of the operators are all items that can be obtained by means of proper discovery techniques without requiring the trial court to hold a two- or three-hour hearing.
In addition, a hearing is not mandated upon the filing of every motion to suppress evidence. Such motions are governed by
The court may also make provision by local rule оr order for the submission of the matter upon briefs without oral argument. Loc.R. 13 of the Court of Common Pleas of Auglaize County and Loc.R. 41 of the Municipal Court of Auglaize County. Neither appellant’s original motion nor his amended motion contained a request for an oral hearing.
As set forth in
Xenia v. Wallace
(1988),
Once the initial burden is established, the burden of persuasion is upon the state to show the validity of the evidence. However, neither the prosecution nor the сourt should be expected to anticipate and be prepared to address every specific legal and factual grounds Therefore, the defense counsel must make the grounds clear upon which he challenges the submission of the evidence. Counsel must set forth the violation that has occurred and raise the grounds upon which that violation is based by means of affidavit or other evidentiary material. Failure to adequately raise the basis of the challenge constitutes a waivеr of that issue on appeal.
Therefore, in this case, the initial motion to suppress was totally inadequate because it merely stated that the officer administering the test did not follow the rules and regulations. There was no specificity and no suрporting evidentiary materials.
The amended motion, while setting forth more specificity, still does not zero in on how the listed violations of the rules and regulations were to have occurred. The first alleged violation makes reference to an imрroper instrument but does not state in what manner the instrument is alleged to be improper nor is any evidentiary material supporting the allegation presented for consideration. Likewise, the second paragraph makes reference to the RFI test but does not specify how it is inadequate. Is the timing off? Had the machine been moved? Or is this just another reference to the operator? The same approach is set forth regarding the calibration.
For a supporting memorandum, counsel has merely set forth a reference to the Kretz case. There is not a single word about how the trial court is supposed to apply that case to the allegations made in the motion to suppress nor is there any further support for the allеged improprieties in the several paragraphs of the motion.
In
Salon v. Mallion
(1983),
We find, upon consideration of the allegations set forth in appellant’s motion, that appellant has merely made conclusory statements and has not set forth factual allegations to support the claims with particularity that are sufficient to entitle him to an evidentiary hearing on his motion to suppress. The assignment of error is overruled and the judgment of the municipal court is affirmed.
Judgment affirmed.