City of Defiance v. Kretz

• Decision Date: 15 May 1991
• Docket Number: Nos. 90-761 and 90-762,s. 90-761 and 90-762
• Citation: 60 Ohio St.3d 1,573 N.E.2d 32
• Parties: CITY OF DEFIANCE, Appellee, v. KRETZ, Appellant. CITY OF DEFIANCE, Appellee, v. STAFFORD, Appellant.
• Court: Ohio Supreme Court

Page 1

60 Ohio St.3d 1

573 N.E.2d 32

CITY OF DEFIANCE, Appellee, v. KRETZ, Appellant.

CITY OF DEFIANCE, Appellee, v. STAFFORD, Appellant.

Nos. 90-761 and 90-762.

Supreme Court of Ohio.

Submitted Feb. 19, 1991.

Decided May 15, 1991.

Syllabus by the Court

A motion to suppress is a proper pretrial procedure for challenging breathalyzer test results when the defendant is charged with a violation of R.C. 4511.19(A)(3). A plea of no contest does not waive a defendant's appeal from an adverse ruling on the motion.

__________

Case No. 90-761

At approximately midnight on December 30, 1987, a Defiance, Ohio police officer on routine patrol observed defendant-appellant Timothy E. Kretz driving his automobile in the city of Defiance with his headlights off. After failing to attract Kretz's attention, the officer observed Kretz's automobile weaving across the roadway. Upon stopping Kretz, the officer smelled alcohol on his breath and noticed that his speech was slurred, his eyes red and watery. The officer placed Kretz under arrest, and took him to the State Highway Patrol Post where Kretz agreed to take and was given a BAC (breathalyzer) test.

Kretz was charged with driving under the influence of alcohol with a BAC of . 24 in violation of Section 434.01(a) of the Defiance Traffic Code. He pled not guilty and filed a motion to suppress the results of the breathalyzer test, alleging that the results were not accurate because the machine used to analyze Kretz's blood-alcohol level was not working properly. The trial court overruled the motion to suppress. Kretz entered a plea of no contest. The trial court then found him guilty and sentenced him.

The court of appeals affirmed the trial court and held that because the trial court's ruling on the admissibility of the breathalyzer test results was a preliminary ruling on an evidentiary matter, defendant's no contest plea waived any evidentiary issues assigned as error.

Case No. 90-762

On the evening of February 8, 1988 a city of Defiance patrolman observed defendant-appellant Mark A. Stafford weaving across the roadway in his vehicle. The officer stopped Stafford's car and smelled alcohol on his breath. Stafford had red, watery eyes. The officer placed him under arrest and took him to the police station where he agreed to take, and was given, a breathalyzer test.

Stafford was charged with driving under the influence of alcohol with a BAC of .276 in violation of Section 434.01(a) of the Defiance Traffic Code. Stafford pled not guilty and filed a motion to suppress the test results alleging lack of probable cause and improper administration of the test. The motion was overruled and Stafford changed his plea to no contest. The trial court found him guilty and sentenced him.

The court of appeals affirmed the trial court and held that Stafford's no contest plea waived the evidentiary issues assigned as error.

The appellate court, finding its decisions in these cases to be in conflict with the decision of the Court of Appeals for Summit County in State v. Earle (Aug. 2, 1989), No. 13957, unreported, certified the record of each case to this court for review and final determination. Appellants filed motions to consolidate the cases which this court granted.

John T. Rohrs III, City Law Director, Defiance, for appellee.

Arthur, O'Neil & Mertz Co., L.P.A., and E. Charles Bates, Defiance, for appellants.

J. Anthony Sawyer, Vincent P. Popp and John Scaccia, Dayton, urging reversal for amicus curiae, Ohio Mun. League.

Barbara Farnbacher and Harry R. Reinhart, Columbus, urging reversal for amicus curiae, Ohio Ass'n of Criminal Defense Lawyers.

HERBERT R. BROWN, Justice.

This case requires us to decide whether a pretrial motion to suppress followed by a no contest plea is a proper procedural mechanism by which a defendant, charged with a violation of R.C. 4511.19(A)(3), may challenge the results of a breathalyzer test based on an alleged failure to comply with Ohio Department of Health ("ODH") regulations. For the reasons which follow, we hold that it is and reverse the court of appeals.

In substance, Defiance Traffic Code Section 434.01(a) is identical to R.C. 4511.19(A). Because the local ordinance is patterned after R.C. 4511.19, our analysis refers to R.C. 4511.19 and the relevant case law interpreting that statute.

R.C. 4511.19 provides in part:

"(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[.]"

R.C. 4511.19 is a strict liability statute. State v. Cleary (1986), 22 Ohio St.3d 198, 199, 22 OBR 351, 490 N.E.2d 574, 575. See, also, Newark v. Lucas (1988), 40 Ohio St.3d 100, 103, 532 N.E.2d 130, 133; State v. Tanner (1984), 15 Ohio St.3d 1, 6, 15 OBR 1, 5, 472 N.E.2d 689, 693. In R.C. 4511.19(A)(3) the General Assembly defined the point at which an individual can no longer drive without being a substantial danger to himself and others. Tanner, supra. In determining whether the defendant committed the per se offense, the trier of fact is not required to find that the defendant operated a vehicle while under the influence of alcohol or drugs, but only that the defendant's chemical test reading was at the prescribed level and that the defendant operated a vehicle within the state. Newark, supra. The accuracy of the test results is a critical issue in determining a defendant's guilt or innocence.

The admissibility of test results to establish alcoholic concentration under R.C. 4511.19 turns on substantial compliance with ODH regulations. ¹ State v. Plummer (1986), 22 Ohio St.3d 292, 294, 22 OBR 461, 463-464, 490 N.E.2d 902, 905; Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 87, 72 O.O.2d 44, 48, 330 N.E.2d 908, 912-913. See, also, State v. Dickerson (1986), 25 Ohio St.3d 64, 66, 25 OBR 86, 88, 495 N.E.2d 6, 8; State v. Steele (1977), 52 Ohio St.2d 187, 192, 6 O.O.3d 418, 421, 370 N.E.2d 740, 743; Mentor v. Giordano (1967), 9 Ohio St.2d 140, 146, 38 O.O.2d 366, 369, 224 N.E.2d 343, 347.

We must now decide whether a motion to suppress is a proper pretrial motion for challenging the admissibility of breathalyzer test results.

Crim.R. 12 and Traf.R. 11 address pretrial procedures. Crim.R. 12(B) and Traf.R. 11(B) provide that " * * * [a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before [* * *] trial by motion. [* * *] The following [* * *] must be raised before trial: * * * Motions to suppress evidence * * *." Further, Crim.R. 12(H) and Traf.R. 11(G) provide that "[t]he plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence." The intent of these rules is to determine matters before trial when possible.

In both cases below, the court of appeals held that the pretrial rulings on the motions to suppress were preliminary rulings on evidentiary matters which could only be ruled upon with finality when the matter arose at trial. The appellate court found waiver because the defendants pled no contest and no trial took place.

We do not agree. During the pretrial hearing on a motion to suppress breathalyzer test results, the court hears all the relevant evidence on the issue of admissibility. As stated, admissibility of the results turns on substantial compliance with ODH regulations. After ruling on the motion, the only issue left for determination at trial is whether the defendant was operating a vehicle in the state of Ohio--an issue irrelevant to the test's admissibility. Therefore, the trial court's ruling on the defendants' motions in the cases sub judice was not a liminal motion.

A motion in limine is tentative and precautionary in nature, reflecting the court's anticipatory treatment of an evidentiary issue at trial. In deciding such motions, the trial court is at liberty to change its ruling on the disputed evidence in its actual context at trial. Finality does not attach when the motion is granted. State v. Grubb (1986), 28 Ohio St.3d 199, 201-202, 28 OBR 285, 288, 503 N.E.2d 142, 145.

The court of appeals reasoned that a ruling on a preliminary motion, though labeled a motion to suppress, could not be appealed (absent a final ruling at trial) unless the motion presented a constitutional challenge. However, the traditional distinction between a motion to suppress based upon a constitutional challenge and a motion in limine does not work as a bright-line rule where the motion to suppress is directed to breathalyzer test results based on a failure to comply with ODH regulations.

In State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477 N.E.2d 1141, we recognized that a pretrial motion labeled in limine was the functional equivalent of a motion to suppress where it "renders the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed." Id. at syllabus. A pretrial challenge to a breathalyzer test, if granted, destroys the state's case under R.C. 4511.19(A)(3), and the state is permitted to appeal pursuant to R.C. 2945.67 and Crim.R. 12(J).

Similarly, the defense to a charge under R.C. 4511.19(A)(3) is destroyed where the breathalyzer test result is declared valid after a pretrial challenge. If the defendant pleads no contest after such a ruling, judicial economy will be served by appeal of the pivotal issue rather than forcing the defendant through a futile trial. ² The defendant must, of course, enter a plea of no contest and a judgment must be rendered or there would be no final appealable order. ³

We hold, therefore, that a pretrial motion to suppress is the proper procedure for challenging breathalyzer test results when the...