State v. French

[This opinion has been published in Ohio Official Reports at 72 Ohio St.3d 446.]

THE STATE OF OHIO, APPELLANT, v. FRENCH, APPELLEE.

[Cite as State v. French, 1995-Ohio-32.]

Criminal procedure—Requirement on state to lay foundation for admissibility of

chemical test results at trial of defendant charged under R.C. 4511.19(A)(1)

through (4) waived, when—Requirement for introducing into evidence

results of breathalyzer tests in prosecutions under R.C. 4511.19(A)(1).

1. Because Crim.R. 12(B)(3) applies to all charges under R.C. 4511.19, a defendant

charged under R.C. 4511.19(A)(1) through (4) who does not challenge the

admissibility of the chemical test results through a pretrial motion to

suppress waives the requirement on the state to lay a foundation for the

admissibility of the test results at trial. The chemical test result is admissible

at trial without the state's demonstrating that the bodily substance was

withdrawn within two hours of the time of the alleged violation, that the

bodily substance was analyzed in accordance with methods approved by the

Director of Health, and that the analysis was conducted by a qualified

individual holding a permit issued by the Director of Health pursuant to

R.C. 3701.143. (Defiance v. Kretz [1991], 60 Ohio St.3d 1, 573 N.E.2d 32,

approved; Cincinnati v. Sands [1975], 43 Ohio St.2d 79, 72 O.O. 2d 44, 330

N.E.2d 908, modified.)

2. When introducing a legally obtained breathalyzer test result below .10 into

evidence in prosecutions under R.C. 4511.19(A)(1), the state must present

expert testimony to relate the numerical figure representing a percentage of

alcohol by weight in the bodily substance, as shown by the results of the

chemical test, to the common understanding of what it is to be under the

influence of alcohol. (Newark v. Lucas [1988], 40 Ohio St.3d 100, 532

N.E.2d 130, approved.)

SUPREME COURT OF OHIO

(No. 94-67—Submitted February 7, 1995—Decided July 5, 1995.)

CERTIFIED by the Court of Appeals for Clark County, No. 3004.

__________________

{¶ 1} At approximately 12:43 a.m. on June 20, 1992, Chief Whaley of the

village of North Hampton observed defendant-appellee Angela K. French driving

her automobile at a speed greater than the posted limit and failing to dim her

headlights.

{¶ 2} In the course of following the vehicle for speeding, Chief Whaley

observed French's automobile weaving and repeatedly going left of center. Upon

being stopped, French was given a series of field sobriety tests and subsequently

arrested. At the Clark County Jail, French submitted to a breath-alcohol content

("BAC") verifier test of her breath, which showed a concentration of .091 grams of

alcohol per two hundred ten liters of breath, within the legal limit of .10.

{¶ 3} French was charged with operating a vehicle while under the

influence of alcohol in violation of R.C. 4511.19(A)(1) and with speeding in

violation of R.C. 4511.21(B)(3). The speeding charge was later dismissed.

{¶ 4} Prior to the day of trial, French did not file a motion to suppress the

results of the BAC test or in any way challenge the test's compliance with Ohio

Department of Health regulations. Rather, on the day of the trial, French made an

oral motion in limine challenging the admissibility of the actual numerical

concentration solely on the basis that the state did not intend to present expert

testimony to explain to the jury the significance of a .091 test result. The trial court

ruled that the evidence of the test result would be admissible for the limited purpose

of showing alcohol in French's system and adopted a proposed jury instruction

addressing that point.

{¶ 5} At trial, the prosecution elicited testimony from Chief Whaley

regarding the BAC test results without first laying a foundation for its admissibility.

Although a defense objection to testimony of the actual alcohol concentration was

2

January Term, 1995

sustained on the ground of relevance, the test result printout was admitted into

evidence.

{¶ 6} The jury found French guilty of operating a vehicle while under the

influence of alcohol. The trial court sentenced French to serve thirty days in jail,

with twenty-seven days suspended, and one year of probation. The court also

suspended her license for sixty days and ordered her to participate in an alcohol-

dependency assessment.

{¶ 7} The Second District Court of Appeals reversed the conviction and

remanded the cause, holding that the trial court erred when it admitted the breath

test because the state failed to establish a foundation for the test result and failed to

introduce expert testimony to explain the significance of a test result that is below

the statutory per se level. Finding its decision to be in conflict with the decision of

the Ninth District Court of Appeals in State v. Dvorak (1989), 65 Ohio App.3d 44,

582 N.E.2d 1027, the appellate court certified the record of the case to this court

for review and final determination.

__________________

Michael F. Sheils, Chief Prosecuting Attorney, and Kathryn A. Reckley,

Assistant Prosecuting Attorney, for appellant.

James D. Marshall, Clark County Assistant Public Defender, for appellee.

Betty D. Montgomery, Attorney General, Richard A. Cordray, State

Solicitor, and Simon B. Karas, Deputy Chief Counsel, urging reversal for amicus

curiae, Ohio Attorney General.

__________________

3

SUPREME COURT OF OHIO

MOYER, C.J.

{¶ 8} The issue certified to this court by the Second District Court of

Appeals is "whether a challenge to the results of a breath alcohol test on the basis

of failure to comply with regulations of the Ohio Department of Health may be

raised by a criminal defendant in the form of an objection to the admissibility of

that test result during the course of trial, when the defendant has not moved to

suppress the test result upon that ground before trial." For the reasons that follow,

we hold that a defendant who does not object to the admissibility of a breath-alcohol

test through a pretrial motion to suppress on the basis of a failure by the state to

comply with Ohio Department of Health regulations may not object to the

admissibility of the test results at trial on those grounds.

{¶ 9} Crim.R. 12(B), which addresses pretrial motions, provides:

"(B) Pretrial Motions. Any defense, objection, or request which is capable

of determination without the trial of the general issue may be raised before trial by

motion. The following must be raised before trial:

"* * *

"(3) Motions to suppress evidence * * * on the ground that it was illegally

obtained.***"

{¶ 10} The purpose and effect of a motion to suppress and a motion in

limine are distinct. A "motion to suppress" is defined as a "[d]evice used to

eliminate from the trial of a criminal case evidence which has been secured

illegally, generally in violation of the Fourth Amendment (search and seizure), the

Fifth Amendment (privilege against self incrimination), or the Sixth Amendment

(right to assistance of counsel, right of confrontation, etc.), of U.S. Constitution."

Black's Law Dictionary (6 Ed. 1990) 1014. Thus, a motion to suppress is the proper

vehicle for raising constitutional challenges based on the exclusionary rule first

enunciated by the United States Supreme Court in Weeks v. United States (1914),

232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and made applicable to the states in Mapp

4

January Term, 1995

v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Further, this court

has held that the exclusionary rule will not ordinarily be applied to suppress

evidence which is the product of police conduct that violates a statute but falls short

of a constitutional violation, unless specifically required by the legislature.

Kettering v. Hollen (1980), 64 Ohio St.2d 232, 235, 18 O.O.3d 435, 437, 416

N.E.2d 598, 600. An important characteristic of a motion to suppress is that finality

attaches so that the ruling of the court at the suppression hearing prevails at trial

and is, therefore, automatically appealable by the state. R.C. 2945.67(A); Crim.R.

12(J); see, also, State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477

N.E.2d 1141.

{¶ 11} A "motion in limine" is defined as "[a] pretrial motion requesting

[the] court to prohibit opposing counsel from referring to or offering evidence on

matters so highly prejudicial to [the] moving party that curative instructions cannot

prevent [a] predispositional effect on [the] jury." Black's Law Dictionary, supra, at

1013. The purpose of a motion in limine "is to avoid injection into [the] trial of

matters which are irrelevant, inadmissible and prejudicial[,] and granting of [the]

motion is not a ruling on evidence and, where properly drawn, granting of [the]

motion cannot be error." Id. at 1013-1014. See State v. Maurer (1984), 15 Ohio

St.3d 239, 259, 15 OBR 379, 396, 473 N.E.2d 768, 787.

{¶ 12} A ruling on a motion in limine reflects the court's anticipated

treatment of an evidentiary issue at trial and, as such, is a tentative, interlocutory,

precautionary ruling. Thus, "the trial court is at liberty to change its ruling on the

disputed evidence in its actual context at trial. Finality does not attach when the

motion is granted." Defiance v. Kretz (1991), 60 Ohio St.3d 1, 4, 573 N.E.2d 32,

35, citing State v. Grubb (1986), 28 Ohio St.3d 199, 201-202, 28 OBR 285, 288,

503 N.E.2d 142, 145.

{¶ 13} Confusion and inaccuracy may arise, however, because a motion in

limine may be used in two ways. It may be used as a preliminary means of raising

5

SUPREME COURT OF OHIO

objections to evidentiary issues to prevent prejudicial questions and statements until

the admissibility of the questionable evidence can be determined outside the

presence of the jury. It may also be used as the functional equivalent of a motion

to suppress evidence that is either not competent or improper due to some unusual

circumstance not rising to the level of a constitutional violation. Palmer, Ohio

Rules of Evidence, Rules Manual (1984) 446, cited in State v. Maurer, supra, 15

Ohio St.3d at 259, 15 OBR at 396-397, 473 N.E.2d at 787, fn. 14.

{¶ 14} It is true that a subtle distinction exists between the exclusionary

rule, which is relied upon when evidence is improperly seized, and the Rules of

Evidence, which generally apply to procedural questions concerning the

admissibility of evidence at trial. Moreover, challenges to the admissibility of

chemical test results on the basis of noncompliance with Department of Health

testing regulations do not present a question of constitutional magnitude. However,

"[t]he traditional distinction between a motion to suppress based upon a

constitutional challenge and a motion in limine does not work as a bright-line rule

where the motion to suppress is directed to breathalyzer test results based on a

failure to comply with ODH regulations." Defiance v. Kretz, supra, 60 Ohio St.3d

at 4, 573 N.E.2d at 35.

{¶ 15} In holding at the syllabus that "[a] motion to suppress is a proper

pretrial procedure for challenging breathalyzer test results when the defendant is

charged with a violation of R.C. 4511.19(A)(3)," the Kretz court noted that the

intent of the Rules of Criminal Procedure "is to determine matters before trial when

possible."1 Id. at 4, 573 N.E.2d at 34. This policy "applies not only to constitutional

issues but also to non-constitutional claims capable of determination without a trial

1. Crim.R. 1(B) provides that "[t]hese rules are intended to provide for the just determination of

every criminal proceeding. They shall be construed and applied to secure the fair, impartial, speedy,

and sure administration of justice, simplicity in procedure, and the elimination of unjustifiable

expense and delay."

6

January Term, 1995

on the general merits." State v. Ulis (1992), 65 Ohio St.3d 83, 85, 600 N.E.2d 1040,

1041-1042.

{¶ 16} It is well established that in a charge of violating R.C. 4511.19(A)(2)

through (4) "[t]he accuracy of the test results is a critical issue in determining a

defendant's guilt or innocence." Kretz, supra, 60 Ohio St.3d at 3, 573 N.E.2d at 34.

Although the admissibility of test results turns on substantial compliance with ODH

regulations rather than compliance with the Constitution, this court determined in

Kretz and Ulis that a ruling on a motion to suppress challenging the admissibility

of a BAC test is not a preliminary ruling on an evidentiary matter. Rather, pursuant

to Crim.R. 12(B)(3), challenges to the state's compliance with statutory and ODH

regulations in a charge under R.C. 4511.19(A)(2) through (4) must be made in a

pretrial motion to suppress, or such challenges are considered waived.

{¶ 17} The reasoning behind this court's decisions in Kretz and Ulis causes

us to conclude that a challenge to the compliance with ODH regulations in a charge

under R.C. 4511.19(A)(1) is no different. Although the test results, if probative,

are merely an additional factor to be considered along with all other evidence of

impaired driving in a prosecution for this offense, Newark v. Lucas (1988), 40 Ohio

St.3d 100, 104, 532 N.E.2d 130, 134, the procedures used to obtain the test results

are the same, as are the requirements for its admissibility.2 Thus, in the context of

R.C. 4511.19, a motion to suppress on grounds that the evidence was "illegally

obtained" encompasses both constitutional and statutory violations. The policy of

2. R.C. 4511.19(D) provides:

"In any criminal prosecution for a violation of this section, *** the court may admit

evidence on the concentration of alcohol, drugs of abuse, or alcohol and drugs of abuse in the

defendant's blood, breath, urine, or other bodily substance at the time of the alleged violation as

shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance

withdrawn within two hours of the time of the alleged violation.

"***

"Such bodily substances shall be analyzed in accordance with methods approved by the

director of health by an individual possessing a valid permit issued by the director of health pursuant

to section 3701.143 of the Revised Code."

7

SUPREME COURT OF OHIO

early determination applies equally, as does the mandatory language of Crim.R.

12(B)(3).

{¶ 18} Therefore, because Crim.R. 12(B)(3) applies to all charges under

R.C. 4511.19, a defendant charged under R.C. 4511.19(A)(1) through (4) who does

not challenge the admissibility of the chemical test results through a pretrial motion

to suppress waives the requirement on the state to lay a foundation for the

admissibility of the test results at trial. The chemical test result is admissible at trial

without the state's demonstrating that the bodily substance was withdrawn within

two hours of the time of the alleged violation, that the bodily substance was

analyzed in accordance with methods approved by the Director of Health, and that

the analysis was conducted by a qualified individual holding a permit issued by the

Director of Health pursuant to R.C. 3701.143. (Defiance v. Kretz [1991], 60 Ohio

St.3d 1, 573 N.E.2d 32, approved; Cincinnati v. Sand [1975], 43 Ohio St.2d 79, 72

O.O. 2d 44, 330 N.E.2d 908, modified.) This does not mean, however, that the

defendant may not challenge the chemical test results at trial under the Rules of

Evidence. Evidentiary objections challenging the competency, admissibility,

relevancy, authenticity, and credibility of the chemical test results may still be

raised.

{¶ 19} In the case before us, French was charged under R.C. 4511.19(A)(1).

A review of the record shows that French failed to make a motion to suppress the

test results pursuant Crim.R. 12(B)(3). Therefore, French waived the state's burden

to lay a foundation establishing substantial compliance with statutory and

Department of Health Regulations.

{¶ 20} The second issue is whether, in a charge under R.C. 4511.19(A)(1),

expert testimony is required to explain the significance of a legally obtained

breathalyzer test result that is below the per se level. We hold that it is.

{¶ 21} This court has previously held that when introducing a legally

obtained breathalyzer test result below .10 into evidence in prosecutions under R.C.

8

January Term, 1995

4511.19(A)(1), the state must present expert testimony "to relate the numerical

figure representing a percentage of alcohol by weight in the bodily substance, as

shown by the results of the chemical test, to the common understanding of what it

is to be under the influence of alcohol." Newark v. Lucas, supra, 40 Ohio St.3d at

105, 532 N.E.2d at 134, citing State v. Myers (1971), 26 Ohio St.2d 190, 198, 55

O.O.2d 447, 452, 271 N.E.2d 245, 251.

{¶ 22} As discussed supra, in a charge under R.C. 4511.19(A)(1), the

chemical test result is not dispositive of guilt, but merely constitutes some evidence

to consider, if probative, in addition to all other evidence regarding the conduct of

the defendant. Clearly, without expert testimony, prejudice could result from a jury

giving too much weight to the test result itself rather than focusing on the critical

issue of the defendant's conduct.

{¶ 23} In the instant case, the prosecution failed to introduce expert

testimony to explain the significance of French's BAC test result. In view of the

contradictory testimony in the record, we conclude that the trial court committed

reversible error by allowing the actual numerical figure of the BAC test to be

introduced into evidence in the absence of expert testimony explaining the

significance of the figure.

{¶ 24} Accordingly, we affirm the judgment of the court of appeals and

remand this cause to the trial court for further proceedings consistent with this

opinion.

Judgment affirmed.

DOUGLAS, WRIGHT, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.

RESNICK, J., concurs in judgment only.

__________________

9