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State of Ohio v. John C. Kitzler

October 24, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JOHN C. KITZLER,
DEFENDANT-APPELLANT.



Appeal from Wyandot County Common Pleas Court Trial Court No. 10-CR-0050

The opinion of the court was delivered by: Willamowski, J.

Cite as State v. Kitzler,

OPINION

Judgment Affirmed

{¶1} Defendant-appellant John C. Kitzler ("Kitzler") brings this appeal from the judgment of the Court of Common Pleas of Wyandot County denying his motion to suppress the results of his blood alcohol tests. For the reasons set forth below, the judgment is affirmed.

{¶2} On August 23, 2010, Sergeant Kerwin Wiseley ("Wiseley") of the Wyandot County Sheriff's Office stopped Kitzler for failing to dim his headlights while approaching another vehicle and for a marked lanes violation. Tr. 7-9. Upon speaking with Kitzler, Wiseley detected a strong odor of alcohol emanating from the vehicle. Tr. 13. Wiseley testified that Kitzler's speech was slurred and that his eyes were glassy and bloodshot. Id. When asked, Kitzler admitted that he had drank six beers that night. Id. Wiseley then determined that Kitzler did not have a valid operator's license and arrested him. Tr. 23. Since he was already under arrest Wiseley also asked Kitzler if he consented to take the field sobriety tests without a lawyer present and Kitzler agreed. Tr. 24. Kitzler then performed some field sobriety tests including the horizontal gaze nystagmus test. Tr. 26. This test gave six out of six possible clues that Kitzler was intoxicated. Tr. 37. At that time, Wiseley also arrested Kitzler for operating a motor vehicle while intoxicated. Tr. 38. Wiseley then transported Kitzler to the Sheriff's Office. Tr. 39.

{¶3} Once at the Sheriff's Office, Kitzler submitted to a test on the Intoxilyzer 8000. Id. This machine requires that two different samples be given and that the two samples be within a certain tolerance deviation for the test to be valid. Tr. 45. Kitzler's samples were not within the tolerance, so the test was deemed invalid. Tr. 48. For the 20 minutes prior to taking the test, Kitzler was observed and did not ingest any substance. Tr. 49. While waiting for the results to print, Kitzler was taken to the bathroom and upon exiting, took a drink of water from the fountain at 12:27 in the morning. Tr. 50, 52. Kitzler was then asked to submit to a test on the BAC Datamaster and consented to do so. Tr. 53. Fourteen minutes and thirty-eight seconds later, the test was given. Tr. 56. The test result was .239 grams of alcohol per 210 liters of breath. Tr. 62.

{¶4} On September 15, 2010, the Wyandot Grand Jury indicted Kitzler for 1) operating a motor vehicle while under the influence of alcohol with prior convictions for doing so in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(e), a felony of the third degree and 2) operating a motor vehicle while under the influence of alcohol in excess of .17 gram of alcohol per two hundred liters of breath with prior convictions for doing so in violation of R.C. 4511.19(A)(1)(h) and (G)(1)(e), a felony of the third degree. Kitzler entered a plea of not guilty. On October 20, 2010, Kitzler filed a motion to suppress the evidence. A hearing on the motion was held on November 2, 2010. The trial court overruled on the motion on December 12, 2010. On January 25, 2011, a jury trial was held. The jury returned a verdict of guilty on both counts of the indictment. On February 2, 2011, the trial court entered a single judgment of conviction and sentenced Kitzler to five years in prison. Kitzler appeals from this judgment and raises the following assignments of error.

First Assignment of Error

The trial court erred when it denied [Kitzler's] motion to suppress when officers failed to observe [Kitzler] for at least twenty minutes prior to testing, [Kitzler] ingested a foreign substance, and no evidence was adduced as to how the substance would affect the BAC Datamaster.

Second Assignment of Error

The trial court erred when it denied [Kitzler's] motion to suppress when [Kitzler] submitted two separate samples via the Intoxilyzer 8000 that did not correlate within .020 and therefore produced an "invalid test".

Third Assignment of Error

The trial court erred when it denied [Kitzler's] motion to suppress when officers failed to comply with the Department of Health regulations when testing an individual's blood ...


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