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State of Ohio v. Jesse A. Carter

December 3, 2012

STATE OF OHIO, PLAINTIFF-APPELLANT,
v.
JESSE A. CARTER, DEFENDANT-APPELLEE.



Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2011 TRC 14422.

The opinion of the court was delivered by: Cynthia Westcott Rice, J.

OPINION

Judgment: Reversed and remanded.

{¶1} Appellant, the state of Ohio, appeals the judgment of the Portage County Municipal Court, Ravenna Division, granting the motion in limine of appellee, Jesse Carter, to exclude evidence of the result of an Intoxilyzer 8000 test. At issue is whether the trial court erred in requiring the state to present evidence of the reliability of the Intoxilyzer 8000 as a predicate for the admission of the result of Carter's test. For the reasons that follow, we reverse and remand.

{¶2} On November 2, 2011, at about 2:30 a.m., Carter was stopped by a Streetsboro police officer driving 45 mph in a 35 mph zone without a required license plate light. The result of an Intoxilyzer 8000 breath test revealed Carter's blood alcohol concentration was .148, nearly twice the legal limit. He was charged by citation with speeding and a license plate violation, both minor misdemeanors, and with driving under the influence of alcohol and driving with a prohibited blood alcohol concentration, in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(d), respectively, both misdemeanors of the first degree. Carter pled not guilty.

{¶3} On January 30, 2012, Carter filed a motion in limine to exclude any testimony regarding the result of his blood alcohol test. Carter argued the reading was based on a test administered by the Streetsboro Police using the Intoxilyzer 8000, which, Carter alleged, is scientifically unreliable.

{¶4} The trial court held a hearing on the motion in limine on March 12, 2012. Carter's counsel argued that he was challenging "the general scientific reliability" of the Intoxilyzer 8000. The trial court offered to give the state a continuance to present testimony regarding the general reliability of the machine. The state responded that, pursuant to State v. Vega, 12 Ohio St.3d 185 (1984), it was not required to present such evidence because the reliability of the Intoxilyzer 8000 had already been determined by the Director of the Ohio Department of Health.

{¶5} Following the hearing, on March 12, 2012, the trial court granted Carter's motion in limine; ordered that his breath test result not be admitted at trial; and dismissed the per se OVI charge.

{¶6} The state filed a motion to stay the court's March 12, 2012 judgment entry, which the trial court granted. The state now appeals the trial court's ruling on Carter's motion in limine, asserting two assignments of error. For its first assigned error, the state alleges:

{¶7} "The relief sought and obtained from Carter's January 30, 2012 motion establishes the trial court's March 12, 2012 decision was a ruling on a motion to suppress and therefore automatically appealable by the state."

{¶8} The state argues that, while Carter referred to his motion as a motion in limine, a ruling on which is generally not a final, appealable order, in effect his motion was a motion to suppress evidence, and the court's ruling granting same was a final order. In contrast, Carter argues that, because he only argued the Intoxilyzer 8000 is unreliable and did not assert any constitutional argument, the court's ruling on his motion in limine was merely a preliminary evidentiary ruling and thus not a final order. This court in State v. Davis, 11th Dist. No. 2008-L-021, 2008-Ohio-6991, stated:

{¶9} The Supreme Court of Ohio has explained that "any motion, however labeled, which, if granted, restricts the state in the presentation of certain evidence and, thereby, 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, is, in effect, a motion to suppress. The granting of such order is a final order and may be appealed pursuant to R.C. 2945.67 and Crim.R. 12(J) [since renumbered as Crim.R. 12(K)]."

Id. at ¶22, quoting State v. Davidson, 17 Ohio St.3d 132 (1985), syllabus.

{¶10} Here, the trial court, in granting Carter's motion in limine, not only ordered that his breath test result not be admitted in evidence, but also dismissed the per se OVI charge, which depended on that excluded evidence. In dismissing this charge, the trial court eliminated its ability to revise its ruling. Further, by its dismissal, the court acknowledged that its ruling excluding the breath test result rendered the state's proof with respect to the per se OVI charge so weak that any reasonable possibility of effective prosecution had been destroyed.

{¶11} Thus, regardless of the label of Carter's motion, it was a motion to suppress since it resulted in the exclusion of evidence that was essential to prove the per se OVI charge. We therefore hold that the court's ruling granting the motion was a final, appealable order. However, because the court did not treat its ruling as anything other than a final order, the assignment of error is moot.

{¶12} For its second assignment of error, the state contends:

{¶13} "The Portage County Municipal Court erred in permitting a general attack on the scientific reliability of the Intoxilyzer 8000 contrary to Ohio statutes and well- established case law."

{¶14} "Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. The appellate court must accept the trial court's factual findings, provided they are supported by competent, credible evidence. Id. Thereafter, the appellate court must determine, without deference to the trial court, whether the applicable legal standard has been met.

Id. Thus, we review the trial court's application of the law to the facts de novo. State v. Holnapy, 194 Ohio App.3d 444, 2011-Ohio-2995, ΒΆ28 (11th Dist.). Here, no evidence was presented. Instead, the court applied the law without making any factual findings. Thus, the ...


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