State v. French

• Decision Date: 05 July 1995
• Docket Number: No. 94-67,94-67
• Citation: 650 N.E.2d 887,72 Ohio St.3d 446
• Parties: The STATE of Ohio, Appellant, v. FRENCH, Appellee.
• Court: Ohio Supreme Court

Page 446

72 Ohio St.3d 446

650 N.E.2d 887

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

No. 94-67.

Supreme Court of Ohio.

Submitted Feb. 7, 1995.

Decided July 5, 1995.

SYLLABUS BY COURT

1. Because Crim.R. 12(B)(3) applies to all charges under R.C. 4511.19, a defendant charged under R.C. 4511.19(A)(1) through (4) who does not challenge the admissibility of the chemical test results through a pretrial motion to suppress waives the requirement on the state to lay a foundation for the admissibility of the test results at trial. The chemical test result is admissible at trial without the state's demonstrating that the bodily substance was withdrawn within two hours of the time of the alleged violation, that the bodily substance was analyzed in accordance with methods approved by the Director of Health, and that the analysis was conducted by a qualified individual holding a permit issued by the Director of Health pursuant to R.C. 3701.143. (Defiance v. Kretz [1991], 60 Ohio St.3d 1, 573 N.E.2d 32, approved; Cincinnati v. Sand [1975], 43 Ohio St.2d 79, 72 O.O.2d 44, 330 N.E.2d 908, modified.)

2. When introducing a legally obtained breathalyzer test result below .10 into evidence in prosecutions under R.C. 4511.19(A)(1), the state must present expert testimony to relate the numerical figure representing a percentage of alcohol by weight in the bodily substance, as shown by the results of the chemical test, to the common understanding of what it is to be under the influence of alcohol. (Newark v. Lucas [1988], 40 Ohio St.3d 100, 532 N.E.2d 130, approved.)

At approximately 12:43 a.m. on June 20, 1992, Chief Whaley of the village of North Hampton observed defendant-appellee Angela K. French driving her automobile at a speed greater than the posted limit and failing to dim her headlights.

In the course of following the vehicle for speeding, Chief Whaley observed French's automobile weaving and repeatedly going left of center. Upon being stopped, French was given a series of field sobriety tests and subsequently arrested. At the Clark County Jail, French submitted to a breath-alcohol content ("BAC") verifier test of her breath, which showed a concentration of .091 grams of alcohol per two hundred ten liters of breath, within the legal limit of .10.

French was charged with operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1) and with speeding in violation of R.C. 4511.21(B)(3). The speeding charge was later dismissed.

Prior to the day of trial, French did not file a motion to suppress the results of the BAC test or in any way challenge the test's compliance with Ohio Department of Health regulations. Rather, on the day of the trial, French made an oral motion in limine challenging the admissibility of the actual numerical concentration solely on the basis that the state did not intend to present expert testimony to explain to the jury the significance of a .091 test result. The trial court ruled that the evidence of the test result would be admissible for the limited purpose of showing alcohol in French's system and adopted a proposed jury instruction addressing that point.

At trial, the prosecution elicited testimony from Chief Whaley regarding the BAC test results without first laying a foundation for its admissibility. Although a defense objection to testimony of the actual alcohol concentration was sustained on the ground of relevance, the test result printout was admitted into evidence.

The jury found French guilty of operating a vehicle while under the influence of alcohol. The trial court sentenced French to serve thirty days in jail, with twenty-seven days suspended, and one year of probation. The court also suspended her license for sixty days and ordered her to participate in an alcohol-dependency assessment.

The Second District Court of Appeals reversed the conviction and remanded the cause, holding that the trial court erred when it admitted the breath test because the state failed to establish a foundation for the test result and failed to introduce expert testimony to explain the significance of a test result that is below the statutory per se level. Finding its decision to be in conflict with the decision of the Ninth District Court of Appeals in State v. Dvorak (1989), 65 Ohio App.3d 44, 582 N.E.2d 1027, the appellate court certified the record of the case to this court for review and final determination.

Defendant was convicted in the Court of Common Pleas, Clark County, of operating a vehicle while under influence of alcohol, and she appealed. The Court of Appeals reversed and remanded, and certified the record of the case to the Supreme Court for review and final determination. The Supreme Court, Moyer, C.J., held that: (1) by failing to make pretrial motion to suppress results of breath alcohol test, defendant waived requirement that state lay foundation for admission of the evidence and also waived any noncompliance with Department of Health regulations in administering the test, and (2) expert testimony was required to explain significance of test results.

Affirmed and remanded.

Resnick, J., concurred in judgment only.

Michael F. Sheils, Chief Pros. Atty., and Kathryn A. Reckley, Asst. Pros. Atty., for appellant.

James D. Marshall, Clark County Asst. Public Defender, for appellee.

Betty D. Montgomery, Atty. Gen., Richard A. Cordray, State Sol., and Simon B. Karas, Deputy Chief Counsel, urging reversal for amicus curiae, Ohio Atty. Gen.

MOYER, Chief Justice.

The issue certified to this court by the Second District Court of Appeals is "whether a challenge to the results of a breath alcohol test on the basis of failure to comply with regulations of the Ohio Department of Health may be raised by a criminal defendant in the form of an objection to the admissibility of that test result during the course of trial, when the defendant has not moved to suppress the test result upon that ground before trial." For the reasons that follow, we hold that a defendant who does not object to the admissibility of a breath-alcohol test through a pretrial motion to suppress on the basis of a failure by the state to comply with Ohio Department of Health regulations may not object to the admissibility of the test results at trial on those grounds.

Crim.R. 12(B), which addresses pretrial motions, provides:

"(B) Pretrial Motions. Any 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:

" * * *

"(3) Motions to suppress evidence * * * on the ground that it was illegally obtained. * * * "

The purpose and effect of a motion to suppress and a motion in limine are distinct. A "motion to suppress" is defined 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." Black's Law Dictionary (6 Ed.1990) 1014. Thus, a motion to suppress is the proper vehicle for raising constitutional challenges based on the exclusionary rule first enunciated by the United States Supreme Court in Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and made applicable to the states in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Further, this court has held that the exclusionary rule will not ordinarily be applied to suppress evidence which is the product of police conduct that violates a statute but falls short of a constitutional violation, unless specifically required by the legislature. Kettering v. Hollen (1980), 64 Ohio St.2d 232, 235, 18 O.O.3d 435, 437, 416 N.E.2d 598, 600. An important characteristic of a motion to suppress is that finality attaches so that the ruling of the court at the suppression hearing prevails at trial and is, therefore, automatically appealable by the state. R.C. 2945.67(A); Crim.R. 12(J); see, also, State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477 N.E.2d 1141.

A "motion in limine " is defined as "[a] pretrial motion requesting [the] court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to [the] moving party that curative instructions cannot prevent [a] predispositional effect on [the] jury." Black's Law Dictionary, supra, at 1013. The purpose of a motion in limine "is to avoid injection into [the] trial of matters which are irrelevant, inadmissible and prejudicial[,] and granting of [the] motion is not a ruling on evidence and, where properly drawn, granting of [the] motion cannot be error." Id. at 1013-1014. See State v. Maurer (1984), 15 Ohio St.3d 239, 259, 15 OBR 379, 396, 473 N.E.2d 768, 787.

A ruling on a motion in limine reflects the court's anticipated treatment of an evidentiary issue at trial and, as such, is a tentative, interlocutory, precautionary ruling. Thus, "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." Defiance v. Kretz (1991), 60 Ohio St.3d 1, 4, 573 N.E.2d 32, 35, citing State v. Grubb (1986), 28 Ohio St.3d 199, 201-202, 28 OBR 285, 288, 503 N.E.2d 142, 145.

Confusion and inaccuracy may arise, however, because a motion in limine may be used in two ways. It may be used as a preliminary means of raising objections to evidentiary issues to prevent prejudicial questions and statements until the admissibility of the questionable evidence can be determined outside the presence of the jury. It may also be used as the functional equivalent of a motion to suppress evidence that is either not competent or improper due to some unusual circumstance not rising to the level of a constitutional violation. P...