City of Xenia v. Lamar E. Wallace
| Decision Date | 20 February 1987 |
| Docket Number | 86-CA-65,87-LW-0480 |
| Parties | CITY OF XENIA, Plaintiff-Appellee, v. LaMAR E. WALLACE, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Mark Donatelli, City Prosecutor, Xenia, for plaintiff-appellee.
Alex V DeMarco, Vandalia, for defendant-appellant.
The defendant, LaMar E. Wallace, was arrested and charged with violating Xenia Revised Code Sections 333.03(D) (speeding) 333.01(A)(1) (no person shall operate any vehicle when he is under the influence of alcohol or any drug of abuse or the combined influence of both, and 333.01(A)(3)(1) ®1¯ (operating a motor vehicle with a concentration of ten hundredths of one gram or more by weight of alcohol per two hundred ten liters of breath). Subsequently, defendant moved to suppress evidence relating to any chemical testing on the grounds that the test was illegally obtained and was not performed in accordance with the procedures prescribed by the State of Ohio. Following a hearing conducted on June 16 1986, the motion to suppress was overruled. Trial was held on June 23, 1986. Defendant entered a no contest plea to the charge of operating a motor vehicle with a blood alcohol content of ten hundredths of one gram or more by weight of alcohol per two hundred ten liters of breath in violation of R.C. 4511.19(A)(3), reserving his right to appeal. Upon request of the prosecutor, the charges based on speeding and driving while under the influence of alcohol were dropped. Defendant was found guilty of violating R.C. 4511.19(A)(3). He has appealed to this court from the judgment and sentence entered in the Xenia Municipal Court.
According to the evidence presented at the suppression hearing, Patrolman Daniel Savage was on duty on Sunday morning, February 2, 1986 and was parked in the lot of a bowling alley on Second Street in Xenia, Ohio. Officer Savage was engaged in conversation with Patrolman David Helling who was also parked in the bowling alley lot. Officer Savage observed a car driven by the defendant, LaMar Wallace, turn off Route 35 onto Allison Avenue and then proceed to turn right onto West Second Street. Officer Savage testified that he observed the defendant accelerate in a high, quick fashion and stated that he could tell by the sound of the car's engine that the driver was shifting and accelerating taking his gears to the high limit. (Tr. p. 6). When asked what specifically attracted his attention to the car, Officer Savage replied that it was the speed and the sound of the car's engine. (Tr. p. 18).
Patrolman Savage followed the defendant and attempted to catch him. Mr. Wallace stopped briefly at the first stop sign on Second Street, then accelerated again. A short distance later, Officer Savage determined by using his certified patrol car speedometer that Mr. Wallace was traveling at a rate of 55 m.p.h. The posted speed limit was 35 m.p.h. Officer Savage engaged his flashing lights, pulled Mr. Wallace over, and arrested him for speeding. When first questioned concerning the time of the initial arrest, Officer Savage stated that he did not know the exact time, but estimated it to be between 1:00 and 3:00 a.m. (Tr. p. 21). When shown the ticket issued to Mr. Wallace in order to refresh his recollection, the officer placed the time at 4:44 a.m. (Tr. p. 24). Officer Helling, who followed in the pursuit of Mr. Wallace, testified without the aid of contemporaneous writings that the initial speeding stop and arrest took place sometime after 4:00 a.m. (Tr. p. 30). The arrest report places the time at 4:44 a.m.
Following the arrest for speeding, Mr. Wallace was asked to submit to a BAC Verifier breath test which was conducted by Officer Savage. The test report form filed on February 2, 1986 shows that the test was conducted at 5:10 a.m. and that it resulted in a reading of .124.
Three assignments of error are presented for our review:
I.OHIO CASE LAW DICTATES THAT THE CHARGES OF DRIVING UNDER THE INFLUENCE OF ALCOHOL AND DRIVING WITH A PROHIBITED BREATH CONCENTRATION SHOULD HAVE BEEN DISMISSED AT TRIAL BASED ON A LACK OF PROBABLE CAUSE FOR THE INITIAL STOP AS WELL AS A LACK OF PROBABLE CAUSE FOR THE TESTING OF MR. WALLACE FOR CHEMICAL OR SUBSTANCE ABUSE.
II.NO FACTS WERE INTRODUCED INTO EVIDENCE BY THE PROSECUTOR AT TRIAL OR AT THE MOTION TO SUPPRESS TO SUBSTANTIATE THE OFFICER'S TESTING OF MR. WALLACE FOR CHEMICAL OR SUBSTANCE ABUSE. PROBABLE CAUSE IS NECESSARY FOR AN OFFICER TO STOP A VEHICLE FOR SPEEDING AS WELL AS TO ADMINISTER A BREATHALYZER TEST, AND WITHOUT PROBABLE CAUSE, ALL RESULTS THEREAFTER GAINED ARE OBTAINED ILLEGALLY AND ARE SUPPRESSABLE.
III.THE RESULTS OF THE BREATHALYZER TEST ADMINISTERED TO MR. WALLACE SHOULD HAVE BEEN SUPPRESSED AT TRIAL BASED UPON AN INORDINANT AMOUNT OF DELAY BETWEEN THE ALLEGED OFFENSE(S) COMMITTED AND THE ADMINISTRATION OF THE BREATHALYZER TEST ITSELF.
Appellant first maintains that the initial traffic stop and his subsequent arrest for speeding were illegal, because they were based on less than probable cause. We find no merit in this argument. A police stop of a motor vehicle constitutes a "seizure" within the meaning of the Fourth and Fourteenth Amendments. Terry v. Ohio (1968), 392 U.S. 1; Delaware v. Prouse (1979), 440 U.S. 648; United States v. Martinez-Fuerte (1976), 428 U.S. 543; State v. Freeman (1980), 64 Ohio St.2d 291. A police officer, prior to effecting a stop, must have an articulable and reasonable suspicion that a defendant is violating the laws when he makes a traffic stop. Terry v. Ohio, supra, at 21; State v. Chatton (1984), 11 Ohio St.3d 59. We conclude that the initial stop and arrest of Mr. Wallace was legal. Patrolman Savage testified that he observed Mr. Wallace driving at an excessive rate of speed, that he followed Mr. Wallace and clocked his speed at 55 m.p.h. in a 35 m.p.h. zone. Given these factors, the stop was justified.
Appellant next asserts that there was a lack of probable cause for the testing of Mr. Wallace for chemical or substance abuse. The second assignment of error, which is more in the nature of argument, states that "no facts were introduced into evidence by the prosecutor at trial or at the motion to suppress to substantiate the officer's testing of Mr. Wallace for chemical or substance abuse Without probable cause, all results thereafter gained are obtained illegally and are suppressable." (Brief of Appellant filed August 20, 1986). Appellant argues that the trial court erred in overruling the motion to suppress the results of the breathalyzer test, because the state presented no evidence to show that the arresting officer had probable cause to administer the test.
At the hearing on the motion to suppress, defense counsel was the only person to question Officers Savage and Helling. The prosecutor did not question either officer, nor did he call any witnesses on behalf of the State. The testimony elicited by defense counsel concerned only the initial stop and arrest for speeding. No evidence was presented by appellant or by the State on the issue of probable cause to administer the breathalyzer test.
The issue presented for our determination concerns who, pursuant to a motion to suppress the results of a breathalyzer test, has the burden of going forward with evidence to establish lack of probable cause to administer the test. Appellant argues that it was the State who was required to show that probable cause existed. Searches conducted outside the judicial process, without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment, subject to a few specially established and well delineated exceptions. Katz v. United States (1969), 389 U.S. 347. In the case of a warrantless search, the burden of proof rests upon the State to show that an exception to the requirement of a search warrant is applicable. Coolidge v. New Hampshire (1971), 403 U.S. 443; United States v. Jeffers (1951), 342 U.S. 48.
The burden of proof actually encompasses two separate burdens. One burden is that of producing evidence or the "burden of going forward." If the party who has the burden of producing evidence does not meet that burden, the consequence is an adverse ruling on the matter at issue. The other burden is the burden of persuasion, which becomes crucial only if the parties have sustained their respective burdens of producing evidence and only when all the evidence has been introduced. It becomes significant if the trier of fact is in doubt; if he is, then the matter must be resolved against the party with the burden of persuasion. McCormick, Evidence Sec. 336.
In two recent opinions, the Court of Appeals for Hamilton County has addressed the burden of proof issue in the context of motions to suppress the results of breathalyzer tests. In State v. Kalejs (June 8, 1986), Hamilton App. No. C-850272 unreported, defendant was arrested for violating R.C. 4511.19(A)(3), 4511.19(A)(1) and 4507.35. He filed a motion to suppress the results of his intoxilyzer test, claiming that the test was not done in accordance with Department of Health regulation and that the arresting officer had no probable cause to stop and arrest him. At a hearing on the motion to suppress, no evidence was presented by defendant or by the state on the issue of probable cause. The trial court overruled appellant's motion and found him guilty of violating R.C. 4511.19(A)(3). On appeal it was argued that the trial court erred in overruling the motion to suppress, because the state presented no evidence to show that the officer had probable cause. The appellate court, in affirming the judgment...
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