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State v. Dial

Court of Appeals of Ohio, Third District

September 16, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KIMBERLY DIAL, DEFENDANT-APPELLANT.

Appeal from Lima Municipal Court Trial Court No. 12TRC00602

Andrew R. Bucher for Appellant.

Nicole M. Smith for Appellee.

OPINION

PRESTON, P.J.

(¶1} Defendant-appellant, Kimberly Dial ("Dial"), appeals the judgment of the Lima Municipal Court finding her guilty of operating a motor vehicle while under the influence of alcohol ("OVI") after the trial court denied her motion to suppress and she entered a plea of no contest. We affirm.

(¶2} On January 26, 2012, Lima Police Officer Amy Glanemann was on patrol and initiated a traffic stop of Dial after Officer Glanemann observed Dial make a wide right turn from East Elm Street onto Bellefontaine Avenue, coming close to a vehicle in the left-turn lane on Bellefontaine Avenue, then drive left of the center line. (June 20-21, 2012 Tr. at 53). When she approached the vehicle and spoke with Dial, Officer Glanemann smelled an odor of alcoholic beverage coming from Dial, who admitted to consuming two beers at the American Legion Post. (Id. at 54). Officer Glanemann called for another unit to back her up, and Officer Dustin Brotherwood arrived at the scene. (Id. at 6, 54). Officer Brotherwood administered field sobriety tests on Dial and concluded that "she was either at or over the legal amount of alcohol allowed in her system." ( Id. at 13). Officer Brotherwood arrested Dial and took her to the police station. ( Id. at 12).

(¶3} At the station, Dial was read and shown BMV Form 2255 and submitted to the breath test offered to her. ( Id. at 24-25). Lima Police Lieutenant Pat Coon administered the breath test using the Intoxilyzer 8000, serial number 80-004681. (Id. at 25, 29). Dial registered a breath-alcohol concentration of .215 grams by weight of alcohol per 210 liters of breath. (Doc. No. 1). She was charged with OVI in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor; operating a vehicle with a prohibited breath-alcohol concentration of .17 grams or more by weight of alcohol per 210 liters of breath in violation of R.C. 4511.19(A)(1)(h), a first-degree misdemeanor; and, failure to drive within marked lanes in violation of Lima City Ordinance 432.08(a). (Doc. No. 1). The two alcohol-related offenses were assigned trial court case number 12TRC00602A, and the marked-lanes violation was assigned trial court case number 12TRC00602B. (Id.).

(¶4} Dial entered pleas of not guilty on February 1, 2012. (Doc. No. 5). On March 14, 2012, she filed a motion to suppress and requested an oral hearing on her motion. (Doc. No. 11). In her suppression motion, Dial claimed numerous errors and improprieties requiring the suppression of the evidence obtained, including that her breath test was not conducted in compliance with applicable rules and regulations established by the Ohio Department of Health. (Id.).

(¶5}On June 20 and 21, 2012, the trial court held a hearing on Dial's motion to suppress. (June 20-21, 2012 Tr. at 1); (Doc. No. 18). The trial court heard the testimony of the witnesses for the plaintiff-appellee, State of Ohio-Officers Glanemann and Brotherwood and Lieutenant Coon. (June 20-21, 2012 Tr. at 2-62). Counsel for the State introduced State's Exhibit D-a packet of copies of certifications for the Intoxilyzer 8000, serial number 80-004681, and for the solutions used to certify that machine. (Id. at 32). Lieutenant Coon identified those certifications as ones kept within the regular course of business at the Lima Police Department. (Id.). Among the certifications was an "Inspector's Certification Statement" ("Statement") form of the Ohio Department of Health completed and signed by Robert Norbeck on March 26, 2012. (Id. at 32-33, 40-42); (State's Ex. D). The Statement documented a September 7, 2011 certification, in which Norbeck certified the machine using a new bottle of solution containing ethyl alcohol approved by the Director of Health. (Id.); (Id.). Dial's counsel objected to State's Exhibit D, arguing that the Statement was testimonial, and its admission into evidence absent Dial's ability to cross-examine Norbeck violated Dial's Sixth Amendment right to confront witnesses offered against her. (June 20-21, 2012 Tr. at 33, 37-40). The trial court overruled Dial's counsel's objection and admitted the document into evidence. ( Id. at 33, 37-40, 51). Dial did not call any witnesses at the hearing. ( Id. at 62).

(¶6} As the trial court ordered at the hearing, Dial and the State submitted their proposed findings of facts and conclusions of law on July 20, 2012. (Doc. Nos. 19, 20). On July 30, 2012, the parties filed "stipulations for suppression" containing stipulations that they had agreed to before the hearing and that Dial's counsel recited on the record at the hearing. (Doc. No. 21); (June 20-21, 2012 Tr. at 37-38). The parties stipulated that counsel for the State telephoned the Ohio Department of Health regarding a March 16, 2012 entry of the trial court in another criminal matter, State v. Collins, case number 11TRC08726. (Doc. No. 21). In that entry, the trial court suppressed an Intoxilyzer 8000 breath test because the Department's documentation offered by the State lacked the date of first use of the solution used to test the Intoxilyzer 8000 and proof that the solution was refrigerated, per applicable rules and regulations. (Id.). Shortly after counsel for the State telephoned the Department, the Department provided the State with the Statement signed by Norbeck and admitted as part of State's Exhibit D at the hearing on Dial's suppression motion. (Id.).

(¶7} On January 4, 2013, the trial court issued its journal entry denying Dial's motion to suppress. (Doc. No. 22). The trial court concluded, in part, that Dial's breath test was administered in compliance with applicable rules and regulations, and that the results of that test were therefore admissible into evidence before the trier of fact at trial. (Id.).

(¶8} On January 17, 2013, Dial filed a demand for trial by jury, but she later waived a jury trial when she withdrew her pleas of not guilty and entered pleas of no contest on March 6, 2013. (Doc. Nos. 23, 26, 27). That same day, the trial court found Dial guilty of the alcohol-related offenses-violations of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(h)—and found that Dial had a prior OVI offense within six years of her arrest on January 26, 2012.[1] (Doc. No. 27). The trial court sentenced Dial to 180 days in jail, with 120 days suspended on condition that she observe all terms of probation to be imposed for a period of four years; ordered that she pay a fine of $1, 000, plus court costs; suspended her operator's license for four years; and, ordered her vehicle immobilized and license plates impounded for 90 days. (Doc. Nos. 27, 28).[2]

(ΒΆ9} On March 6, 2013, Dial filed her notice of appeal. (Doc. No. 32). She raises one ...


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