State v. Thacker, 07 Ca 38 (6-3-2008)State v. Thacker, 07 Ca 38 (6-3-2008)
{¶ 1} Plaintiff-appellant the State of Ohio appeals the May 29, 2007 Judgment Entry of the Fairfield County Court of Common Pleas granting Defendant-appellee Thomas E. Thacker‘s motion to suppress evidence.
STATEMENT OF THE FACTS AND CASE
{¶ 2} The following facts are not disputed on appeal: On March 23, 2006, Appellee was involved in an automobile accident with a horse-drawn buggy. The accident occurred at approximately 7:09 p.m. A breath-test was conducted on Appellee at approximately 9:18 p.m. Subsequently, Appellee was indicted on two counts of aggravated vehicular assault.
{¶ 3} On February 15, 2007, Appellee filed a motion to suppress the results of his breath test on the basis the test was not completed within the statutorily imposed time restriction, pursuant to R.C.
{¶ 4} The State now appeals, assigning as error:
{¶ 5} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR AS A MATTER OF LAW IN SUPPRESSING THE BREATH-TEST RESULTS BY IMPROPERLY APPLYING THE PRE-AMENDED VERSION OF R.C. §
{¶ 6} There are three methods of challenging on appeal a trial court‘s ruling on a motion to suppress. First, an appellant may challenge the trial court‘s findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. See State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486, 597 N.E.2d 1141; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. See State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141, overruled on other grounds. Finally, assuming the trial court‘s findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court‘s conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App.3d 93, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 620 N.E.2d 906; Guysinger, supra.
{¶ 7} In the case sub judice, the State contends the trial court applied the incorrect law to the stipulated facts. Accordingly, we review the trial court‘s ruling de novo.
{¶ 8} Appellant was charged with violating Ohio Revised Code Section
{¶ 9} “In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense, the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance, or a combination of them in the defendant‘s
{¶ 10} This current version was amended effective August 17, 2006. The prior version of the statute set forth a two-hour time limitation.
{¶ 11} On appeal, the State asserts the trial court should have retroactively applied the current version of subsection (D) to the case sub judice. The application of the amended version of R.C.
{¶ 12} In order to determine whether a statute is to apply retroactively, the first step is “to determine whether the General Assembly expressly intended the statute to apply retroactively.” Bielat v. Bielat (2000), 87 Ohio St.3d 350. This question must be answered first based upon R.C.
{¶ 13} The next issue to be determined is whether the statute is substantive or remedial. Bielat, 87 Ohio St.3d at 354, 721 N.E.2d 28. If a statute is retroactive and
{¶ 14} The State maintains the broad language used by the General Assembly in drafting the amended version of R.C.
{¶ 15} The Supreme Court recently addressed the issue of retroactive application of statutory amendments in its decision of Hyle v. Porter, 2008-Ohio-542:
{¶ 16} “We therefore begin our retroactivity analysis with the question of statutory interpretation. Pursuant to R.C.
{¶ 17} “* * *
{¶ 18} “On review of the text of R.C.
{¶ 19} We find the language “in any criminal prosecution” is ambiguous and although it may suggest a legislative intent to apply the amended provisions of subsection (D) retroactively, the mere suggestion or inference of retroactivity is not sufficient to overcome the presumption of prospective application.
{¶ 20} Accordingly, the trial court did not err in applying the pre-amended version of the statute because the subject breath test was performed on March 23, 2006, prior to the amendment of subsection (D).
{¶ 21} The May 29, 2007 Judgment Entry of the Fairfield County Court of Common Pleas is affirmed.
Hoffman, P.J., Farmer, J., and Edwards, J., concur.
For the reasons stated in our accompanying Memorandum-Opinion, the May 29, 2007 Judgment Entry of the Fairfield County Court of Common Pleas is affirmed. Costs assessed to Appellant State of Ohio.