Hilliard v. Elfrink

• Decision Date: 11 December 1996
• Docket Number: No. 95-2440,95-2440
• Citation: 77 Ohio St.3d 155,672 N.E.2d 166
• Parties: CITY OF HILLIARD, Appellee, v. ELFRINK, Appellant.
• Court: Ohio Supreme Court

Page 155

77 Ohio St.3d 155

672 N.E.2d 166

CITY OF HILLIARD, Appellee, v. ELFRINK, Appellant.

No. 95-2440.

Supreme Court of Ohio.

Submitted Oct. 15, 1996.

Decided Dec. 11, 1996.

The failure to advise a person chemically tested for determination of the concentration of alcohol in his blood, breath, urine, or other bodily substance that he "may have a physician, a registered nurse, or a qualified technician or chemist of his own choosing administer a chemical test or tests in addition to any administered at the request of a police officer," as required by R.C. 4511.19(D)(3), does not render the results of a police-administered test inadmissible in evidence at trial. (State v. Myers [1971], 26 Ohio St.2d 190, 55 O.O.2d 447, 271 N.E.2d 245, paragraph one of the syllabus, approved and followed.)

According to the arrest report, on September 17, 1994, a Hilliard police officer received a report of a person passed out behind the steering wheel of a parked vehicle. The responding officer discovered defendant-appellant, Brian L. Elfrink, apparently asleep in the parked vehicle. The vehicle's key was in the ignition in the accessory position and the radio was playing. The officer detected the odor of alcohol coming from the vehicle and awoke appellant. After appellant failed field sobriety tests, the officer placed him under arrest. The arresting officer cited appellant for OMVI and brought him to the police station. Appellant consented to a breath-alcohol test and tested .105 of one gram by weight of alcohol per two hundred ten liters of his breath.

Appellant was charged with violations of R.C. 4511.19(A)(1) (for operating his vehicle under the influence of alcohol) and of R.C. 4511.19(A)(3) (for operating his vehicle with a concentration of .10 of one gram or more by weight of alcohol per two hundred ten liters of his breath). The arresting officer suspended appellant's driver's license pursuant to the administrative license suspension ("ALS") provisions of R.C. 4511.191, as required by that statute when appellant's breath test revealed that the breath-alcohol concentration exceeded the legal limit of .10.

Appellant filed a motion to dismiss the charges against him in Franklin County Municipal Court, arguing that, under the Double Jeopardy Clauses of both the Ohio and United States Constitutions, an ALS imposed pursuant to R.C. 4511.191 bars a subsequent prosecution on the underlying OMVI violation. Appellant also filed a motion to suppress the results of the breath-alcohol test because the arresting officer did not advise appellant of the right to an independent test, as required by R.C. 4511.19(D)(3).

On March 7, 1995, the trial court held a hearing on the motion to dismiss and on the motion to suppress. At the hearing, the parties stipulated that the arresting officer had not informed appellant of the right to an independent test. The trial court overruled both the motion to dismiss and the motion to suppress. Appellant pled no contest on March 20, 1995, and the trial court sentenced appellant on the R.C. 4511.19(A)(3) charge.

The Court of Appeals for Franklin County affirmed the judgment of the trial court, agreeing with the trial court that double jeopardy principles did not prevent appellant from being prosecuted on the OMVI charges. The court of appeals also upheld the trial court's ruling that the breath-alcohol results should not be suppressed from evidence for the officer's failure to advise appellant of the right to an independent test.

The court of appeals, finding its judgments on both issues to be in conflict with the holdings of other courts of appeals, entered an order certifying the conflicts. As to the first issue, double jeopardy, the court of appeals certified its judgment as in conflict with the decision of the Seventh Appellate District in State v. Gustafson (June 27, 1995), Mahoning App. No. 94 C.A. 232, unreported, 1995 WL 387619. This court determined that a conflict existed, and stayed the briefing schedule on that issue, holding it for the resolution by this court of the pending Gustafson case.

As to the second issue, regarding the failure to advise appellant of the right to an independent test, the court of appeals certified its judgment as in conflict with the decision of the Second Appellate District in State v. Thurman (June 28, 1995), Montgomery App. No. 14741, unreported, 1995 WL 386820. This court determined that a conflict exists and ordered the parties to brief this issue. The cause is now before this court.

Vorys, Sater, Seymour & Pease, William G. Porter II and Susan M. Barrett, Columbus, for appellee.

Judith M. Stevenson, Franklin County Public Defender, and John W. Keeling, Assistant Public Defender, for appellant.

ALICE ROBIE RESNICK, Justice.

We affirm the judgment of the court of appeals on the first certified issue (double jeopardy) based on this court's decision in State v Gustafson (1996), 76 Ohio St.3d 425, 668 N.E.2d 435. Therefore, this opinion will address only the second certified issue.

The relevant issue certified for our review is: "[W]hether the failure of authorities to advise a defendant of his right to obtain an independent blood or chemical test pursuant to R.C. 4511.19(D)(3) requires suppression of the test results." For the reasons which follow, we answer this certified issue in the negative and affirm the judgment of the court of appeals.

R.C. 4511.19(D)(3) provides, in part:

"The person tested may have a physician, a registered nurse, or a qualified technician or chemist of his own choosing administer a chemical test or tests in addition to any administered at the request of a police officer, and shall be so advised."

In State v. Myers (1971), 26 Ohio St.2d 190, 55 O.O.2d 447, 271 N.E.2d 245, this court considered the same issue we consider today. Construing language virtually identical in substance to that contained in current R.C. 4511.19(D)(3) (then numbered R.C. 4511.19[B], 132 Ohio Laws, Part I, 1632-1633), the Myers court held at paragraph one of the syllabus: "The failure to advise a person chemically tested for determination of the concentration of alcohol in his blood that he 'may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a police officer,' as required by R.C. 4511.19(B), does not render the results of a police administered test inadmissible in evidence at trial."

In deciding this issue the way it did, the Myers court, 26 Ohio St.2d at 196, 55 O.O.2d at 450, 271 N.E.2d at 249-250, first made the following observations:

"It should be noted that here we are not confronted by any question of constitutional magnitude which might place this issue within the purview of the exclusionary rule first enunciated by the United States Supreme Court. See Mapp v. Ohio (1961), 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081], and, generally, State v. Cowans (1967), 10 Ohio St.2d 96 [39 O.O.2d 97, 227 N.E.2d 201].

"The United States Supreme Court has held that where a defendant refused to consent to a taking of his blood sample for chemical analysis, a blood sample taken over his objection and without his consent was admissible in evidence. In so holding, the court denied the contention that such procedure violated the Fourth, Fifth, Sixth, or the Fourteenth Amendments to the United States Constitution. Schmerber v. California (1966), 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908]. See, also, Breithaupt v. Abram (1957), 352 U.S. 432 [77 S.Ct. 408, 1 L.Ed.2d 448].

"Rather than being faced with a constitutional problem in the case at bar, we are confronted with a statutory requirement that the person 'shall be so advised,' with no express sanction provided for the failure of the police officer to do so." (Emphasis sic.)

The starting point for analysis of this issue in Myers remains our starting point today--the requirement of informing the person being tested that he or she may have an independent test administered is a statutory requirement and is not a constitutional requirement. Since the exclusionary rule is invoked only when violations of constitutional rights are involved, see Mapp v. Ohio, supra, the exclusionary rule in its traditional form has no application to the circumstances of this case. Although this court in Defiance v. Kretz (1991), 60 Ohio St.3d 1, 573 N.E.2d 32, and in State v. French (1995), 72 Ohio St.3d 446, 650 N.E.2d 887, held that a motion to suppress is the proper pretrial procedure for challenging breath-alcohol results, those cases should by no means be interpreted as a general retreat from the well-established principle that suppression of evidence is a remedy normally reserved for alleged violations of constitutional rights.

Black's Law Dictionary (6 Ed.1990) 1014, defines a "motion to suppress" as a "[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation etc.), of U.S. Constitution." Moreover, Black's Law Dictionary (6 Ed.1990) 564, defines "exclusionary rule" as a rule which "commands that where evidence has been obtained in violation of the search and seizure protections guaranteed by the U.S. Constitution, the illegally obtained evidence cannot be used at the trial of the defendant." See ...