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State v. Forbes3/8/1991
MILLIGAN, Judge.
The defendant-appellant, Gregory L. Forbes ("defendant"), was charged with, inter alia, DUI, Coshocton Ordinance 75.01(A)(1), a mirror image of R.C. 4511.19(A)(1) (operating under the influence); and Coshocton Ordinance 75.01(A)(3), a mirror image of R.C. 4511.19(A)(3) (blood alcohol, per se).
Defendant filed a motion to suppress and a motion in limine attacking the chemical tests and the methodology in achieving the result. For clarity we attach the motion. (See Appendix.) The trial court issued a pretrial judgment denying relief upon grounds numbers 1, 2, 5 and 7 and set a hearing as to grounds numbers 3 and 4 on the issue of whether the RFI (radio frequency interference) survey is the same as previously considered in other cases, and ruled, as to ground number 6:
"In the absence of an indication that the State has refused to provide copies of State Certificates of Operators, etc. in discovery, for a specific factual basis for defendant's allegations, this branch of defendant's motion is denied."
Following a brief hearing, the motion to suppress was overruled, defendant pled no contest to each of the DUI charges, and was sentenced.
He appeals assigning five errors (erroneously identified by him as "issues"):
"The trial court erred in its denial of the appellant's motion to suppress the intoxilyzer test results of the appellant based on substantial' compliance with Department of Health Regulations, 3701-53-02(C)."
"The trial court erred in overruling the defense hearing motion to strike the entire testimony of the state's only witness regarding the RFI calibration procedures of the intoxilyzer for failure to show his qualifications under Department of' Health Regulations 3701-53-O5(B) & (C) as a senior operator."
"The trial court erred in its denial of the appellant's motions to suppress the intoxilyzer test results based on findings that there was not only substantial compliance but complete compliance with the Board of Health Regulation 3701-53-02."
Crim.R. 47 provides:
"An application to the court for an order shall be by motion. A motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally. It shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be supported by a memorandum containing citations of authority, and may also be supported by an affidavit.
"To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition."
In Xenia v. Wallace the Supreme Court catalogued both Crim.R. 47 and a host of cases supporting the proposition that:
"The defendant must make clear the grounds upon which he challenges the submission of evidence pursuant to a warrantless search or seizure." Xenia, supra, 37 Ohio St.3d at 218, 524 N.E.2d at 892.
The court concluded that the defendant had the duty to:
"(1) demonstrate the lack of a warrant, and
"(2) raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge." Xenia, supra, 37 Ohio St.3d at 219, 524 N.E.2d at 892.
As to issues of probable cause the Supreme Court concluded that the burden of going forward with the evidence and the burden of proof befall the state.
The Su
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