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City of Bedford Heights v. Menefee11/10/1999
JUDGMENT: Affirmed.
Defendant-appellant Carmen Menefee appeals in this accelerated appeal from the Bedford Municipal Court's order denying her motion to dismiss/suppress evidence. Defendant was charged with driving left of center and operating a motor vehicle while under the influence of alcohol. After the denial of her motion, she pleaded no contest to the driving under the influence charge and the other charge was dismissed.
The record indicates that in the early morning hours of November 23, 1998, a Bedford police officer received a radio report of a drunk driver operating a black Mazda vehicle. He subsequently encountered the vehicle and observed the driver, Menefee, operating her vehicle left of center. The officer conducted a traffic stop, sensed a strong smell of alcohol on defendant's person, and asked her to perform field sobriety tests. The officer's report indicates defendant failed the tests. Her breathalyzer test subsequently read .16, which was in excess of the statutory limit of .10 of one gram by weight of alcohol per two hundred ten liters of breath.
Defendant's sole assignment of error follows:
THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S MOTION TO DISMISS/MOTION TO SUPPRESS CONCLUDING THAT IT LACKED SUFFICIENT SPECIFICITY.
This assignment lacks merit.
Motion to Dismiss
Defendant's motion in part sought to dismiss the charges against her because allegedly they were not supported by the facts. Specifically, she argued that one is permitted to drive left of center when the left lane is clearly visible and free of oncoming traffic for a sufficient distance to permit the maneuver without interfering with the safe operation of traffic. R.C. 4511.29. Further, she claims the field sobriety tests she failed were conducted under duress in difficult environmental conditions by a biased officer and did not conform to National Highway Traffic Safety Administration ( NHTSA ) guidelines. As a result, she argued, there was a lack of probable cause for her arrest and the DUI charge should, therefore, be dismissed.
Defendant's brief on appeal makes a five-sentence argument that her motion to dismiss based on lack of probable cause should have been granted. (Brief at p. 8.) The Ninth District Court of Appeals succinctly rejected this argument, stating as follows:
Under Ohio's criminal procedure, there is no provision for a motion to dismiss a criminal case founded on the lack of probable cause. The determination of whether or not probable cause exists is the very function of trial. State v. McNamee (1984), 17 Ohio App.3d 175, 17 OBR 306, 478 N.E.2d 843, Thus, the trial court properly denied this motion without a hearing. State v. Hartley (1988), 51 Ohio App.3d 47, 48.
Motion to Suppress
Defendant's motion to suppress argued that the statements she made to the officer in slurred speech were in some unspecified manner elicited in violation of her Miranda rights. She also argued that her breath alcohol test results of .16, which exceeded the maximum statutory level of .10, should be suppressed because the test allegedly failed to comply with all conceivable and potentially applicable statutory requirements and administrative regulations.
Defendant's motion to suppress statements filed in the trial court did not allege or specify in any way how the arresting officer violated her Miranda rights. Nor does her six-sentence argument in her brief on appeal to this court provide any insight into the basis for her assertion. It is well established that to warrant a hearing on a motion to suppress, however, a party must do more than simply cite Mi
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