holding that a motion originally containing twenty alleged violations of the OAC, narrowed into ten allegations at the suppression hearing, that included the specific OAC section and sub-section at issue was stated with sufficient particularity
How later courts described this case
- holding that a motion originally containing twenty alleged violations of the OAC, narrowed into ten allegations at the suppression hearing, that included the specific OAC section and sub-section at issue was stated with sufficient particularity
- holding that the trial court’s nunc pro tunc judgment entry was not actually a nunc pro tunc entry, despite its title, as it was the first recitation of all substantive findings and only modified an interlocutory order
Written by the judges who cited it.
The opinion
Shaw, Presiding Judge,
dissenting.
{¶ 38} I respectfully dissent from the majority decision to reverse this case based on the alleged failure of the state to specifically respond to a boilerplate allegation that the BAC Datamaster calibration solution was not properly refrigerated.
{¶ 39} Yeaples’s motion to suppress was filed on January 15, 2008. This motion provided 29 grounds for suppression, including 26 allegations that appear to be nothing more than verbatim recitations of the Ohio Administrative Code. No facts specific to this case, other than Yeaples’s name, are provided to support this motion. On January 28, 2008, the state served Yeaples with his requested discovery. On February 12, 2008, the trial court held a suppression hearing and ultimately denied Yeaples’s motion to suppress.
{¶ 40} Yeaples did not modify or particularize his motion to suppress until the time of the suppression hearing. Even then, the amendment of Yeaples’s motion to suppress was not in writing and did not contain particularized allegations.
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Instead, his motion was modified only in terms of withdrawing various allegations as follows at the suppression hearing:
Mr. Kahler: After receiving discovery from the State there are some allegations in the motion to suppress that I would like to withdraw.
The Court: I appreciate that, makes it go a lot faster.
Mr. Kahler: Sure. Starting on page two of the motion.
The Court: All right.
Mr. Kahler: I would withdraw paragraphs seven, nine, and 10.
The Court: Okay.
Mr. Kahler: On page three of the motion, I would withdraw paragraphs 11, 14, 15, 16,18, and 19.
The Court: Okay.
Mr. Kahler: On page four I’ll withdraw paragraphs 24, 25, 26.
The Court: Okay.
Mr. Kahler: And on page five I’ll withdraw paragraphs 27, 28, and 29.
The Court: Okay. All right. Thank you. So that basically leaves us with the, uhm, averments up front with the regards to the horizontal gase [sic] — or that the field sobriety tests were not in substantial compliance with the NITSA, that the HGN was not administered in strict compliance; that — did not conduct the tests within regulations of the Ohio Department of Health — not on file — and okay. All right. And number 8,1 think — -
Mr. Kahler: Excuse me, Your Honor. On further review, I see that it appears that the test was conducted within the two hour time limit so I’ll also withdraw paragraph four on page two.
The Court: Okay. Thank you.
{¶ 41} It does not appear from this discussion that the trial court was entirely clear on exactly which portions of the motion to suppress Yeaples was attempting to withdraw or, more important, what particular allegations remained. Nevertheless, this was the end of the discussion with regard to what allegations were still to be included in the motion to suppress.
{¶ 42} In my view, this motion amounts to what the court, in
Norwood v. Kahn,
1st Dist. Nos. C-060497, C-060498, and C-060499, 2007-Ohio-2799 , 2007 WL 1650052 , termed a “gotcha” motion. Using this type of motion, a defendant challenges the targeted evidence in the precise terms of every subsection of a statute or administrative code section pertaining to the collection or handling of that evidence, without any factual foundation pertinent to the case at bar, hoping that the state will simply neglect to make an evidentiary response to one or more of these sections.
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{¶ 43} In addressing such a motion, the First District Court of Appeals adopted the rationale espoused by the Twelfth District Court of Appeals, holding, “Unless an accused, either through discovery or cross-examination at the hearing, points to facts to support the allegations that specific health regulations have been violated in some specific way, the burden on the state to show substantial compliance with those regulations remains general and slight.”
2
State v. Embry,
12th Dist. No. CA2003-11-110, 2004-Ohio-6324 , 2004 WL 2698417 , at ¶ 29. See also
State v. Nicholson,
12th Dist No. CA2003-10-106, 2004-Ohio-6666 , 2004 WL 2849229 ;
State v. Welch,
4th Dist. No. 07CA840, 2008-Ohio-675 , 2008 WL 444632 ;
State v. Bissaillon,
2d Dist. No. 06-CA-130, 2007-Ohio-2349 , 2007 WL 1429626 .
{¶ 44} In
State v. Johnson
(2000), 137 Ohio App.3d 847, 851 , 739 N.E.2d 1249 , the court referred to such a motion as raising only “general claims.” The
Johnson
court held that “[w]hen a defendant’s motion to suppress raises only general claims, along with the Administrative Code sections, the burden imposed on the state is fairly slight.”
State v. Williams
(Apr. 24, 1998), 2nd Dist. No. 16554, 1998 WL 214595 .
3
{¶ 45} With a general motion to suppress, the state is required to demonstrate, in general terms, only that it substantially complied with the Department of Health regulations.
Nicholson,
2004-Ohio-6666 , 2004 WL 2849229 , at ¶ 12. In other words, in the present case, the state needed only to show substantial compliance with the required calibration procedures, taken as a whole, not substantial compliance with each specific section of the Ohio Administrative Code cited in a form motion.
Nicholson,
2004-Ohio-6666 , 2004 WL 2849229 , at ¶ 12, 15.
{¶ 46} During the hearing on the motion to suppress, Officer Niedermyer testified that he was certified as a senior operator to calibrate the BAC Datamaster. Niedermyer testified that the BAC Datamaster machine had been
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properly calibrated, that he had a record of the calibration, that his radio was turned off during the test, and that he followed the checklist for calibrating the BAC Datamaster. Given the general, factless nature of Yeaples’s motion, the state needed only to present general evidence of its substantial compliance with the administrative regulations. Yeaples did not take the opportunity on cross-examination to challenge more specifically Niedermyer’s testimony.
{¶ 47} Niedermyer’s testimony clearly demonstrated that the state had substantially complied with the regulations that ensured that the test instrument was working properly and those that ensured that the test was administered correctly-
{¶ 48} For all of these reasons, I would conclude that the trial court did not err when it overruled Yeaples’s motion to suppress. Accordingly, I would affirm the judgment of the trial court.
2
. The Fifth Appellate District Court of Appeals has echoed this emphasis on discovery, holding, “In order to support a motion to suppress with particular facts that would put the state on notice of the areas to be challenged, a defendant must first complete due and diligent discovery on all issues that he or she intends to challenge in the motion to suppress.”
State
v.
Neuhoff(
1997), 119 Ohio App.3d 501, 506 , 695 N.E.2d 825 .
3
. In reaching its conclusion that the state failed to prove substantial compliance with the requirement that the BAC Datamaster solution be refrigerated, the majority relied on
State v. Shindler
(1994), 70 Ohio St.3d 54 , 636 N.E.2d 319 . I respectfully disagree with the majority conclusion that
Shindler
stands for the proposition that the motion filed by Yeaples was sufficiently particular to place more than a slight, general burden on the state with respect to each of his allegations in the motion to suppress. First,
Shindler
is not factually analogous to the case at bar. In
Shindler ,
the defendant's motion to suppress was overruled without any hearing on the motion. Second, in
Shindler ,
although the defendant's motion contained some grounds that were antilogous to form motions, the motion also contained facts supporting those grounds and alleging with some particularity the claimed violation. Therefore, the
Shindler
court was faced not only with a different issue, whether a hearing was warranted, but also with a motion that at least alleged some factual basis for the motion.