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State v. Lentz5/1/1991
Per Curiam.
This is an appeal by the state of Ohio from a judgment rendered in the Tiffin Municipal Court, granting defendant Gary L. Lentz's pretrial motion to suppress breathalyzer results and statements made in violation of his Fifth Amendment rights, following his arrest for driving under the influence , a violation of R.C. 4511.19(A)(1). The trial court found that the breathalyzer test was not performed in substantial compliance with the applicable regulations. In addition, the trial court found that defendant was interrogated by the arresting officer, and made incriminating statements, prior to being advised of his Miranda rights. The state assigns two errors to the judgment of the trial court.
In the first assignment, the state argues that the trial court erred in suppressing the breathalyzer results. Specifically, it is the state's contention that the failure to comply with the regulations regarding the administration of the breathalyzer test poses the issue of a statutory violation and thus the matter is not properly determined by a pretrial motion to suppress. The state argues that any evidentiary ruling pertaining to the admissibility of the test results could only be made during the trial. We agree.
We recently considered the question of the prejudice resulting to the state by virtue of the trial court's pretrial suppression of intoxilyzer test results because of alleged failure of law enforcement authorities to comply with the applicable statutes and regulations. In State v. Haines (Aug. 6, 1990), Van Wert App. No. 15-89-3, unreported, 1990 WL 360126, we reversed the judgment of the trial court suppressing the evidence finding that:
" he requirement that the BAC alcohol test be administered within two hours of the prosecuted conduct is statutory in nature and does not involve a question of constitutional rights * * *. A motion to suppress does not properly call into question the time within which the test was administered nor the administration of the test. To grant a motion to suppress for the prosecutor's failure to establish evidentiary matters not at issue pursuant to the motion takes unfair advantage of the prosecutor and causes the trial court to exceed the scope of its authority." Id. at 5.
Thus, we conclude that, in the case now before us, the trial court erred in sustaining the portion of defendant's motion to suppress pertaining to the administration of the breathalyzer. Accordingly, the first assignment of error is sustained.
In the second assignment, the state contends that the trial court erred in suppressing statements made by defendant subsequent to his arrest. The state argues that, regardless of the fact that defendant was not Mirandized, the statements are admissible because they were made voluntarily and not as the result of police interrogation.
The record reflects that, while in transit to the police station, the arresting officer initiated a continuing conversation with defendant that resulted in the defendant disclosing that he had been to Toledo, that he had spent the day at Brenda's Body Shop and had started drinking at approximately 3:00 p.m. Once they arrived at the police station, the defendant asked the arresting officer what time it was. When the officer told the defendant that it was approximately 3:00 a.m., the defendant responded, "I better be drunk, I've been drinking for twelve hours."
The trial court found that defendant's statements were the result of police "interrogation" as defined in Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297. The trial court further found that the statements were made prior to defen
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