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State v. McMahon

Court of Appeals of Ohio, First District

June 21, 2013

STATE OF OHIO, Plaintiff-Appellant,
v.
SEAN MCMAHON, Defendant-Appellee.

Criminal Appeal From: Hamilton County Municipal Court TRIAL No. 12TRC-34824B

John Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and William T. Horsely, Senior Assistant City Prosecutor, for Plaintiff-Appellant,

Peter Rosenwald, for Defendant-Appellee.

OPINION

Sylvia s. Hendon, Presiding Judge.

{¶1} The city of Cincinnati has appealed from the trial court's entry granting defendant-appellee Sean McMahon's motion to suppress the results of a breath test taken on an Intoxilyzer 8000 machine. The trial court suppressed the results of McMahon's breath test after determining that the director of health had not promulgated the necessary requirements under R.C. 3701.143 for obtaining the access card required for operation of an Intoxilyzer 8000 machine.

{¶2} Because we find that the director of health has promulgated the necessary requirements for the issuance of an access card, we reverse the trial court's entry granting McMahon's motion to suppress.

Factual Background

{¶3} On December 3, 2011, at approximately 3:00 a.m., McMahon was pulled over for speeding by Ohio State Highway Patrol Trooper Joseph Westhoven. After stopping McMahon, Trooper Westhoven noted that McMahon's eyes were bloodshot and that an odor of alcohol was emanating from the car. McMahon admitted that he had consumed alcohol prior to operating his vehicle. He submitted to various field sobriety tests at the scene of the stop, and, at the conclusion of the tests, he was placed under arrest. McMahon was transported to the Union Township Police Department, where he submitted to a breath test on an Intoxilyzer 8000 machine.

{¶4} McMahon was charged with speeding in violation of R.C. 4511.21, operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), and operating a motor vehicle with a prohibited concentration of alcohol in his breath in violation of R.C. 4511.19(A)(1)(d).

{¶5} McMahon filed a motion to suppress all evidence stemming from his arrest, including evidence concerning the field sobriety tests and the results of the breath test taken on the Intoxilyzer 8000 machine. In ruling on McMahon's motion to suppress, the trial court determined that Trooper Westhoven had a reasonable suspicion to stop McMahon for a traffic violation and had probable cause to place McMahon under arrest. But the court suppressed the results of the breath test taken on the Intoxilyzer 8000 machine after determining that the department of health had failed to promulgate the qualifications required for the issuance of an access card, which was necessary for the operation of the Intoxilyzer 8000 machine. The city has appealed, arguing in its sole assignment of error that the trial court erred in suppressing the results of McMahon's breath test.

Standard of Review

{¶6} Our review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. We must accept the trial court's findings of fact if they are supported by competent and credible evidence. But we review de novo the trial court's application of the relevant law to those facts. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

Access Card Qualifications

{¶7} We must determine whether the trial court correctly found that the director of health had failed to promulgate the qualifications required for the issuance of an access card to those seeking to operate an Intoxilyzer 8000 machine. In so concluding, the trial court found that, although an operator of the Intoxilyzer 8000 machine was required to have an operator access card, the director had only promulgated qualifications for the issuance of permits, and not access cards. Under the trial court's analysis, no person could become qualified to ...


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