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State v. Fetter

Court of Appeals of Ohio, Fifth District

July 29, 2013

STATE OF OHIO Plaintiff - Appellee
v.
CATHERINE FETTER Defendant-Appellant

Criminal Appeal from the Licking County Municipal Court, Case N. 12 TRC 01945

For Plaintiff-Appellee: TRICIA M. MOORE, Assistant Law Director.

For Defendant-Appellant: ROBERT E. CALESARIC.

JUDGES: Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.

OPINION

Baldwin, J.

{¶1} Appellant Catherine Fetter appeals a judgment of the Licking County Municipal Court convicting her of operating a motor vehicle with a prohibited breath-alcohol content (R.C. 4511.19(A)(1)(d)) and driving outside marked lanes (R.C. 4511.33). Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} On February 27, 2012, Trooper Jermaine Thaxton was on routine patrol, working the night shift in Newark, Ohio. He observed a vehicle operated by appellant travel outside her marked lane of travel at 2:49 a.m. After stopping the vehicle and approaching the driver's side of the car, Tpr. Thaxton noticed an odor of alcohol about appellant. He also noted that her eyes were glassy and bloodshot. Tpr. Thaxton removed appellant from the car and from proximity to her passenger, and he then specifically noted that appellant had an odor of alcohol on her breath.

{¶3} After administering field sobriety tests, appellant was arrested for operating a motor vehicle under the influence of alcohol and taken to the Granville post of the Ohio State Highway Patrol. She submitted to a breath test and the result was .094 grams of alcohol per 210 liters of breath, above the legal limit.

{¶4} Appellant was charged with operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and (d), and driving outside marked lines in violation of R.C. 4511.33. Appellant moved to suppress the results of the breath alcohol test. The motion to suppress was overruled.

{¶5} The case proceeded to jury trial on November 8, 2012. Prior to the start of trial, the State dismissed the charge of a violation of R.C. 4511.19(A)(1)(a). The jury found appellant guilty of operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(d). Appellant entered a plea of no contest to driving outside marked lanes. She was fined $375.00, and sentenced to thirty days incarceration with 27 days suspended and placed on probation for one year for operating a motor vehicle under the influence of alcohol. She was fined $15.00 for the marked lanes violation. She assigns two errors on appeal:

{¶6} "I. ADMISSION OF MS. FETTER'S BREATH TEST RESULT AT TRIAL VIOLATED HER SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HER.

{ΒΆ7} "II. THE TRIAL COURT COMMITTED ERROR BY FINDING THAT THE STATE ESTABLISHED SUBSTANTIAL COMPLIANCE WITH THE OHIO DEPARTMENT OF HEALTH ADMINISTRATIVE ...


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