State v. Steven D. Earle, 89-LW-2487

• Decision Date: 02 August 1989
• Docket Number: 13957,89-LW-2487
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Steven D. EARLE, Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE of Ohio, Plaintiff-Appellee, v. Steven D. EARLE, Defendant-Appellant.

No. 13957.

89-LW-2487 (9th)

Court of Appeals of Ohio, Ninth District Summit

August 2, 1989

Appeal From Judgment Entered in the Barberton Municipal Court of the County of Summit, Ohio. Case No. 88 TRC ST 07694.

James A. Merlitti, Asst. City Prosecutor, Barberton, for plaintiff.

Steven A. Struhar, Canton, for defendant.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

MAHONEY Judge.

Appellant, Steven D. Earle, appeals from his conviction of driving while intoxicated in violation of R.C. 4511.19(A)(3) following a plea of no contest in the Barberton Municipal Court. We vacate the conviction and remand for further proceedings.

ASSIGNMENTS OF ERROR

"I.The trial court erred as a matter of law in ruling that a challenge to the admissibility of breath analysis test results, alleging that the procedure did not conform to Department of Health regulations, may not properly be raised by a defendant in a pre-trial Motion to Suppress.

"II.The trial court erred as a matter of law by not suppressing the results of the breath analysis test of the defendant-appellant."

The issue in this case is procedural in nature. In the trial court, Earle filed a pre-trial motion to suppress pursuant to Traf.R. 11(B)(2)(a) ®1¯ consisting of several branches. The sole branch at issue is Earle's motion to suppress the results of a breath alcohol test. The grounds for the suppression were that the State failed to comply with Ohio Department of Health (ODH) regulations governing methods used in taking breath alcohol tests and that the test was not taken within two hours of the alleged violation. R.C 4511.19; Ohio Adm.Code 3701.53.

The trial court found that a motion for suppression was not a proper vehicle for challenging breath alcohol test results based on the failure to follow ODH regulations. Rather, the trial court treated Earle's motion as a motion in limine. The trial court granted Earle's motion in limine. The trial court further stated that the result of the breath alcohol test could be used at trial if the state could show as a foundational requirement that it complied with the ODH regulations. Earle entered a plea of no contest and was convicted of driving while intoxicated.

On appeal, Earle has squarely placed before us the issue of whether a pre-trial motion alleging the state's failure to comply with ODH regulations in taking a breath alcohol test should be brought as a motion to suppress or a motion in limine.

Traditionally, only pre-trial motions which dealt with the exclusion of evidence due to misconduct of a constitutional magnitude by the state were termed "motions to suppress." See Kettering v. Hollen (1980), 64 Ohio St.2d 232; State v. Wells (1983), 11 Ohio App.3d 217, 233-34. However, with respect to challenges to a breath alcohol test based on the failure to comply with ODH regulations, there has been a significant blurring of the distinction between motions in limine and motions to suppress. See State v. Davidson (1985), 17 Ohio St.3d 132.

We believe that in Newark v. Lucas (1988), 40 Ohio St.3d 100, 104, our Supreme Court has created a statutory exclusionary rule which mandates that the trial court exclude the results of a breath alcohol test when the state has not complied with the ODH regulations, in prosecutions under 4511.19(A)(2)(3) and (4). Id. at 104. Thus, we find that a challenge to the results of a breath alcohol test on the basis of failure to comply with ODH regulations should be brought as a motion to suppress.

Traf.R. 11(B)(2) provides that motions to suppress evidence must be filed as a pre-trial motion. Further Traf.R. 11(E), states that the trial court must rule on the motion prior to trial. Thus, the trial court did not have the discretion to treat Earle's motion to suppress as a motion in limine.

Accordingly, Earle's first assignment of error is sustained. However, Earle's second assignment of error must be overruled. The trial court did not reach the merits of whether the breath alcohol test should be suppressed for failure to comply with ODH regulations. Thus, we can make no disposition of the alleged error. The instant conviction therefore must be vacated and be remanded to the trial court for a ruling on Earle's motion to suppress the results of the breath test on the basis that the prosecution failed to comply with ODH regulations.

However, we hasten to add the following...