State v. Shindler

• Decision Date: 10 August 1994
• Docket Number: No. 93-1546,93-1546
• Citation: 70 Ohio St.3d 54,636 N.E.2d 319
• Parties: The STATE of Ohio, Appellant, v. SHINDLER, Appellee.
• Court: Ohio Supreme Court

Page 54

70 Ohio St.3d 54

636 N.E.2d 319

The STATE of Ohio, Appellant, v. SHINDLER, Appellee.

No. 93-1546.

Supreme Court of Ohio.

Submitted April 6, 1994.

Decided Aug. 10, 1994.

SYLLABUS BY THE COURT

In order to require a hearing on a motion to suppress evidence, the accused must state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided. (Crim.R. 47 and Xenia v. Wallace [1988], 37 Ohio St.3d 216, 524 N.E.2d 889, construed and followed.)

On May 17, 1992, defendant-appellee, Jeanne Shindler, was arrested and charged with operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1), operating a vehicle with a prohibited alcohol concentration in violation of R.C. 4511.19(A)(3) and speeding in violation of R.C. 4511.21. Appellee timely filed a motion to suppress evidence obtained from a warrantless seizure, including test results of appellee's coordination, sobriety and alcohol or drug level, observations and opinions of the police officer who stopped and arrested appellee regarding her sobriety and alcohol or drug level, and any statements made by the appellee.

Appellee's motion to suppress evidence was brought on the following grounds:

"1. There was no lawful cause to stop the defendant, detain the defendant, and/or probable cause to arrest the defendant without a warrant.

"2. The test or tests to determine the defendant's alcohol or drug level were not taken voluntarily and were unconstitutionally coerced when obtained due to the threat of loss of license not sanction [sic ] by the requirements of R.C. 4511.191.

"3. The individual administering the defendant's test of alcohol did not conduct the test in accordance with the regulations of the Ohio Department of Health governing such testing and/or analysis as set forth in Chapter 3701-53-02 of the Ohio Administrative [C]ode, including the operator's checklist instructions issued by the Ohio Department of Health included in the Appendices to O.A.C. 3701-53-02.

"4. The breath testing instrument was not properly surveyed to determine radio frequency interference by two qualified police officers utilizing two radios and surveying from all positions the hand held, mobile, and base radios required by O.A.C. 3701-53-02(C) and Appendix G.

"5. The operator of the breath testing instrument did no [sic ] insure the defendant's test was conducted free of any radio transmissions from within the affected RFI zone and determined by a properly performed RFI survey as required by O.A.C. 3701-53-02(C) and Appendix G.

"6. The machine or instrument analyzing defendant's alcohol level was not in proper working order and not calibrated in accordance within the time and manner required by O.A.C. 3701-53-04.

"7. The solution used to calibrate the testing instrument was invalid and not properly maintained in accordance with O.A.C. 3701-53-04.

"8. The operator was not licensed to operate the instrument analyzing the Defendant's alcohol level nor was he supervised by a senior operator in accordance with O.A.C. 3701-53-07. The person or persons calibrating the instrument analyzing the defendant's alcohol level were not currently licensed to calibrate the instrument in accordance with O.A.C. 3701-53-07.

"9. Statements from the defendant were obtained in violation of the Fifth Amendment right against self-incrimination and both his Fifth and Sixth Amendment right to counsel as applicable under the Fourteenth Amendment."

In a memorandum in support of her motion, appellee further alleged that "[d]efendant was stopped initially because of a speed violation, (Ohio Revised Code Section 4511.21), a minor misdemeanor. This is an insufficient legal basis for a Driving Under the Influence stop."

On June 11, 1992, the trial court overruled appellee's motion to suppress without a hearing, concluding that appellee's "shotgun," "boilerplate" motion failed to set forth a factual basis to justify an evidentiary hearing. Subsequently, appellee filed a motion to reconsider on June 17, 1992, which the trial court denied on June 18, 1992 on the same grounds.

On July 30, 1992, a trial was conducted, during which the results of appellee's Breathalyzer test were admitted into evidence. Appellee was found guilty of driving while under the influence in violation of R.C. 4511.19(A)(1), driving with a prohibited alcohol concentration in violation of R.C. 4511.19(A)(3), and speeding in violation of R.C. 4511.21.

From those convictions, appellee timely appealed to the Court of Appeals for Wood County. The court of appeals reversed appellee's convictions, holding that appellee was entitled to a hearing on her motion to suppress evidence. The court reasoned that appellee's motion gave the prosecutor and the court sufficient notice of the basis of her challenge because appellee's motion to suppress specifically cited the statutes, regulations and constitutional rights she alleged were violated.

Finding its judgment to be in conflict with the decision of the Third District Court of Appeals in State v. Hensley (1992), 75 Ohio App.3d 822, 600 N.E.2d 849, the court of appeals certified the record of the case to the court for review and final determination.

Mark D. Tolles, Bowling Green, for appellant.

William V. Stephenson, Wood County Public Defender, for appellee.

Rittgers & Mengle, Charles H. Rittgers and W. Andrew Hasselbach, Lebanon, urging affirmance on behalf of amicus curiae, OH Ass'n of Criminal Defense Lawyers.

DONALD C. NUGENT, Judge.

The issue presented for our review is to what extent a motion to suppress evidence must set forth its legal and factual bases in order to require a hearing.

Crim.R. 47 provides:

"An application to the court for an order shall be by motion. A motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally. It shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be supported by a memorandum containing citations of authority, and may also be supported by an affidavit.

"To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition."

In Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889, this court held, at paragraphs one and two of the syllabus:

"1. To suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge.

"2. Once a defendant has demonstrated a warrantless search or seizure and adequately clarified that the ground upon which he challenges its legality is lack of probable cause, the prosecutor bears the burden of proof, including the burden of going forward with the evidence, on the issue of whether probable cause existed for the search or seizure."

We further noted that Crim.R. 47 "requires that the prosecution be given notice of the specific legal and factual grounds upon which the validity of the search and seizure is challenged." Id. at 219, 524 N.E.2d at 892.

Appellee's first claim for suppressing the evidence was that the arresting state trooper had no cause for an investigative stop and/or no probable cause to arrest. In her memorandum in support, appellee cited legal authority and set forth a factual basis for challenging the investigative stop and the arrest. Specifically, appellee claimed that the trooper based his arrest on Shindler's minor speeding violation and her moderate odor of alcohol. Appellee claims that these factors, standing alone, do not amount to probable cause to arrest for driving under the influence of alcohol. Thus, appellee's memorandum sufficiently puts the prosecution on notice of the basis of the challenge to the stop and arrest. We conclude that as to the issue of the grounds for the investigative stop and subsequent arrest, appellee's motion to suppress complied with Crim.R. 47 and entitled her to a pretrial hearing.

The next seven grounds listed in appellee's motion to suppress challenge the admission of Shindler's breathalyzer test results into evidence. We recognize that appellee's motion to suppress is a virtual copy of the sample motion to suppress that appears in Ohio Driving...