State v. HullState v. Hull
{¶ 1} The State of Ohio (“Appellee“) has filed a timely motion for reconsideration of our original opinion in this case, State v. Hull 7th Dist. No. 02 CA 47, 2003-Ohio-3715, which was released on July 7, 2003. Appellee‘s first argument is that we based our Opinion on an outdated section оf the Ohio Administrative Code. Our original Opinion was based, in part, on our presumption that the parties themselves agreed that a prior version of
{¶ 2} Appellee did not challenge Appellant‘s reliance upon former
{¶ 3} When parties agree about the underlying law that applies to the issues on appeal, appellаte courts often resolve disputed issues utilizing the agreed-upon law. State v. Adkins, 5th Dist. No. CA-906, 2002-Ohio-3943, ¶ 43; State v. Lott (May 30, 2002), 8th Dist. Nos. 79790, 79791 and 79792; State v. Smith (1997), 123 Ohio App.3d 48, 50, 702 N.E.2d 1245; State v. Harrison (1993), 88 Ohio App.3d 287, 289, 623 N.E.2d 726. Despite the parties’ law and arguments contained in their briefs, the parties now assert that our presumption that they had agreed to rely on former
{¶ 4} Upon reconsideration of the original assignments of error in this case, we conclude that the result of our original Opinion was cоrrect, although we modify our analysis as follows:
{¶ 5} Appellant originally raised four issues in his first assignment of error. Appellant first argued that the state did not conduct its RFI tests using hand-held radios normally used by the Ohio State Highway Patrol. At the hearing on the motion to suppress, Appellant‘s counsel asked Trooper Hughes whether the state had any evidence that showed what type of radio was used to conduct the RFI test. (12/13/01 Tr. p. 34.) Trooper Hughes did not personally conduct thе RFI tests and could not point to anything in the record indicating what type of radio was used. Appellant relied on this lack of evidence as proof that the RFI tests were not conducted properly. This lack of evidencе as to the type of radio used, though, does not automatically invalidate the RFI tests.
{¶ 6} Appellant next argues that the instrument check solution was not properly refrigerated as required by
{¶ 7} Appellee argued that the state was not required to prove that the instrument check solution was refrigerated, citing our holding in State v. Pagan (Nov. 10, 1999), 7th Dist. No. 97 CA 80, which states: “[I]n the absence of evidence to the contrary, it is not necessary to present testimony that the calibration solution was kept under refrigeration.” Pagan does not support Appellee‘s argument in this case. When a defendant specifically establishes at a suppression hearing that the state‘s witnesses and documentation fail to provide any indication that the test solution was refrigerated after first use, this qualifies as “evidence to the contrary” and places the burden on the state to provide at least some minimal evidence that the test solution was refrigerated. First, of course, that the defendant must properly raise the issue of refrigeration in a motion to suppress.
{¶ 8} In the instant case, Appellant did properly raise the issue of refrigeration in a motion to suppress and at the suppression hearing, but Appellee did not reciprocate with any evidence of refrigeration. Therefore, the state did not substantially comply with its burden of proof concerning refrigeration and Appellant‘s breath test results should have been suppressed.
{¶ 9} Appellant‘s third argument was that the instrument test rеcords were not kept for three years as required by
{¶ 10} Appellant‘s fourth argument was that the evidence was insufficient to show that the instrument check solution was approved by the director of health as required by
{¶ 11}
{¶ 12} Due to the disposition of all the arguments originally raised by Appellant in her appeal, we find that there are three reasons for suppressing the breath test results in this case.
{¶ 13} Appellant also argued on direct appeal that her no contest plea was invalid because the state did not comply with
{¶ 14} “If the offense be a misdemeanor and the accused pleads guilty thereto, the court or magistrate shall receive and enter such plea unless he believes it made through fraud, collusion; or mistake in which case he shall enter a plea of not guilty and set the matter for trial pursuant to Chapter 2938. of the Revised Code. * * *”
{¶ 15} “If the plea be `no contest’ or words of similar import in pleаding to a misdemeanor, it shall constitute a stipulation that the judge or magistrate may make finding of guilty or not guilty from the explanation of circumstances, and if guilt be found, impose or continue for sentence accordingly. * * *”
{¶ 16} Appеllant argues that the state did not present an explanation of the circumstances of the offense, and for this reason, the court should not have accepted the plea. Appellant is correct. We have recently held that:
{¶ 17} “R.C.
{¶ 18} The record contains no explanation of circumstances supporting her plea of no contest. Therefore, the plea must be vacated.
{¶ 19} Appellee argues on reconsideration that this Court failed to take into account the recent Ohio Supreme Court decision in State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419.
{¶ 20} Watkins dealt with the requirements of
{¶ 21} The effect of a no contest plea is defined in
{¶ 22} The issue in Watkins was whether a trial judge satisfied the requirement of
{¶ 23} The Watkins court held that:
{¶ 24} “The protections that the Criminal Rules provide to felony defendants should not be read into the Ohio Traffic Rules, which deal only with misdemeanor offenses. Accordingly, we find that where a defendant сharged with a petty misdemeanor traffic offense pleads guilty or no contest, the trial court complies with
{¶ 25} The provisions of
{¶ 26} While we were well aware of the Watkins decision when we released our Opiniоn, it remains clear to us that Watkins is inapplicable to the issues raised in this appeal. “The provision in
{¶ 27} Based on our reconsideration of the original Opinion issued in this matter, and based on the apparently revised position of the parties, we revise the reasoning of our Opinion but not our original judgment. We sustain both of Appellant‘s assignmеnts of error on appeal. Based on Appellant‘s first assignment of error, we reverse the judgment of the trial court, vacate Appellant‘s plea, and this cause is remanded for further proceedings according to law and consistent with this Court‘s Opinion.
Waite, P.J., Donofri