State v. Weaver2/18/1993
HARSHA, Judge.
After entering a plea of no contest, Kenneth Weaver was found guilty of operating a motor vehicle with a breath-alcohol content in excess of the statutory limit. He appeals his conviction from a judgment entered by the Lawrence County Municipal Court and assigns the following error:
"The Court erred in overruling defendant-appellant's Motion to Suppress the results of the breathilizer test."
After entering a plea of not guilty to the charge of OMVI, appellant filed a motion to suppress the breath test result on the basis that he was denied his statutory right to secure a second test. Appellant's motion asserted that he had indicated to the arresting officer, the dispatcher, and the jailer that he desired a blood test and that he had sufficient money to pay for it.
Instead of introducing testimonial evidence at the suppression hearing, the parties ultimately agreed to submit the suppression issue to the court upon the following stipulated facts: (1) the stop of appellant's vehicle was legally justified; (2) appellant was given a BAC Verifier test upon which he tested seventeen-hundredths of one gram of alcohol per two hundred ten liters of his breath; (3) appellant made a request to be transported somewhere else for another test; (4) appellant was taken to the jail, Where he advised the jailer of his request for another test as well as his desire to make a phone call to arrange for a blood testsand (5) appellant was placed in a holding cell and never got access to a telephone. Following the suppression hearing, the parties filed memoranda on the suppression issue.
On June 8, 1992, the trial court filed an entry which overruled appellant's suppression motion, finding that appellant was "effectively denied the ability to obtain an alternate test," but further determining that the remedy for this was something other than suppression." Appellant then changed his plea to no contest, and on June 29, 1992, the trial court entered a judgment finding him guilty of violating R.C. 4511.19(A)(3). The trial court sentenced appellant to ten days in jail, to be suspended upon fulfilling probation terms, and fined him $510.
Appellant's sole assignment of error asserts that the trial court erred in overruling his motion to suppress the BAC Verifier test result. In a motion to suppress, the trial court assumes the role of trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. See, e.g., State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972, 981, citing State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR 57, 58, 437 N.E.2d 583, 584; see, also, State v. Dreher (July 28, 1992), Highland App. No. 786, unreported, at 5, 1992 WL 188501, at *2. Accordingly, in our review, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Fausnaugh (Apr. 30, 1992), Ross App. No. 1778, unreported, at 3, 1992 WL 91647, at *2. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard. Dreher supra; Fausnaugh, supra. The policy of early determination by means of a suppression hearing applies not only to constitutional issues but also to non-constitutional claims capable of determination without a trial on the general merits. State v. Ulis (1992), 65 Ohio St.3d 83, 85, 600 N.E.2d 1040, 1041.
The trial court found the language of R.C. 4511.19 to be "controlling" in determining-appellant's suppression motion. R.C. 4511.19(D) provides:
"The person tested may
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