478 N.E.2d 809 | Ohio Ct. App. | 1983
This matter is before the court upon the motion of the state of Ohio for leave to appeal, notice of appeal filed by the state and memorandum in support of jurisdiction. The defendant in the trial court has, pursuant to App. R. 5(A), as construed in State v.Wallace (1975),
Defendant was charged with the offense of driving under the influence of alcohol in violation of R.C.
Appeals by the state are governed by R.C.
"(A) A prosecuting attorney * * * may appeal as a matter or [of] right any decision of a trial court in a criminal case * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections
It is without question that the decision which the state seeks to appeal is not one which is specifically enumerated in R.C.
R.C.
Whether or not the state of Ohio may appeal lies within the sole and sound discretion of this court. The state concedes, and we wholeheartedly agree, that defendant Ulrich may neither be retried nor may the final verdict which the trial court entered in the present case be reversed, as the longstanding constitutional principle of double jeopardy prohibits such a result. But, see, contra, State v. Woods (Nov. 23, 1979), Cuyahoga App. No. 40756, unreported. Further, the movant has in no way intimated that the appeal sought is to challenge the final verdict entered by the trial court. If the state's motion for leave is granted, our eventual decision in this appeal would in no way affect defendant's rights nor would it subject him to further prosecution on the charges for which he was tried. Thus, the question is whether this court, in the case sub judice, should grant the state leave to appeal the trial court's decision that expert testimony which correlates the result of the administered test to the time that the defendant was operating a vehicle is necessary for the prosecution to sustain its burden of proof in proving that the defendant operated a vehicle while intoxicated.
The Supreme Court, in State v. Wallace, supra, at 3, set forth the procedure to be followed in appeals sought by the prosecution pursuant to R.C.
"As applied to such appeals, App. 5(A) may properly be restated to read: *181
"`[In an appeal by the state in a criminal case] * * * a motion for leave to appeal shall be filed with the Court of Appeals * * * setting forth the errors which the movant claims to have occurred in the proceedings of the trial court. The motion shall be accompanied by affidavits, or by such parts of the record upon which the movant relies, to show the probability that the errors claimed did in fact occur, and by a brief or memorandum of law in support of the movant's claims. Concurrently with the filing of the motion the movant shall file with the clerk of the trial court a notice of appeal in the form prescribed by Rule 3 and file a copy of the notice of appeal in the Court of Appeals. The movant shall also furnish a copy of his motion and a copy of the notice of appeal to the clerk of the Court of Appeals who thereupon shall serve the notice of appeal and a copy of the motion for leave to appeal upon the attorney for the * * * [defendant], who may, within thirty days from the filing of the motion, file such affidavits, parts of the record and brief or memorandum of law to refute the claims of the movant.'"
Further, we recognize that the Supreme Court, in Wallace,supra, at 3-4, held that the thirty-day time requirement of App. R. 4(B) also applies to cases in which the prosecution seeks leave to appeal.
In reviewing the materials which have been submitted to us, it is our determination that the state has substantially complied with the procedural guidelines necessary when leave to appeal is sought under R.C.
The prohibition against driving a vehicle while under the influence of alcohol is of manifest importance to the citizens of the Sixth Appellate District, as well as to the entire state of Ohio. Furthermore, the Sixth District Court of Appeals is the final adjudicator of questions of criminal law and procedure within the Sixth Appellate District; that is, of course, until and unless the Supreme Court authoritively addresses such issues. Each day, across our appellate district, trial courts continually decide such questions from which the defendant, obviously, does not appeal. This necessary occurrence, however, unfortunately results in rulings which lack uniformity throughout the various towns and cities of our district. On occasion, otherwise guilty parties may very well escape conviction because of the incorrect rulings of the trial court. Such inconsistent fragmentation does not lend to the integrity of the criminal law, but rather detracts from it while demoralizing our judicial system. The statute in question deserves uniform application throughout this appellate district, and the citizens of this district not only deserve, but are entitled to an authoritative explanation of the law which will undoubtedly be of service to those accused of the offense, the state, the lawyers, and the lower courts of this appellate district for their guidance in the enforcement and administration of the criminal law.
Accordingly, the state of Ohio's motion for leave to appeal the decision of the Perrysburg Municipal Court rendered May 31, 1983, wherein the court held that expert testimony was required in order for the state to sustain its burden of proof that a defendant was driving under the influence of alcohol in violation of R.C.
It is so ordered.
Leave to appeal granted.
HANDWORK and RESNICK, JJ., concur.
"(A) No person shall operate any vehicle, streetcar, or trackless trolley within this state if any of the following apply:
"* * *
"(3) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath;"
"Pursuant to this provision [R.C.
"`1. R.C.
"`2. A judgment of acquittal is a "final verdict," and a municipality may not appeal such a decision pursuant to R.C.
"Although we find the foregoing to be a correct statement of the law, a careful review of the opinion reveals that the court further held, at 188, that:
"`At this time, R.C.
"Upon consideration of the foregoing, we hereby overrule the foregoing portion of this court's decision in Northwood v.Volschow, supra, to the extent that the language implies that the state may not appeal any order, otherwise appealable pursuant to R.C.