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State v. Garcia6/28/2002
. This is an appeal of the judgment of the Ashtabula County Western Area Court, overruling the motion of appellant, Miguel Alicea Garcia, to suppress the results of a breathalyzer test.
. On October 20, 2000, appellant was stopped by Officer Michael L. Palinkas of the Geneva Police Department for driving left of center. Upon approaching appellant's vehicle, Officer Palinkas smelled a strong odor of alcohol and observed that appellant had bloodshot eyes, a flushed face, slurred speech, and slow movements. Officer Palinkas asked appellant to exit his car and perform field sobriety tests. Officer Palinkas gave appellant the Horizontal Gaze Nystagmus test, on which Officer Palinkas observed six of the six indicators of intoxication.
. Officer Palinkas arrested appellant and took him to the Geneva Police Station to perform a breathalyzer test. Officer Palinkas testified that, at the police station, he asked appellant if he understood English. Appellant answered that he understood some English. Officer Palinkas then asked appellant if he could read English, and appellant replied that he could not. Officer Palinkas then asked appellant if he could read Spanish and appellant responded that he could.
. Officer Palinkas testified that he then gave appellant a Spanish translation of the "test and refusal consequences," which are required to be read to a driver before giving him the breathalyzer test, under R.C. 4511.191(C). Officer Palinkas read the "test and refusal consequences" to appellant in English, while appellant read the Spanish translation. Officer Palinkas asked appellant if he understood what he had read, and appellant responded that he did. Appellant submitted to the breathalyzer test, which indicated a blood alcohol concentration of .226.
. Appellant was charged with operating a motor vehicle while under the influence of alcohol, in violation of R.C. 4511.19(A)(1) and (A)(6); driving under suspension, in violation of R.C. 2507.02(B); operating a motor vehicle without a license, in violation of R.C. 4507.01; and, traveling left of center, in violation of R.C. 4511.25.
. On January 3, 2001, appellant filed a motion to suppress the results of the breathalyzer test. The trial court held a suppression hearing, at which Officer Palinkas and appellant testified. The trial court concluded that while the Spanish translation of the "test and refusal consequences" language was not verbatim, and may not have accurately conveyed to appellant the required information, the exclusionary rule is not applied to evidence obtained in violation of statutory law but not in violation of constitutional rights. The trial court overruled appellant's motion to suppress.
. Appellant pleaded no contest to operating a motor vehicle while under the influence of alcohol. The remaining charges were dismissed. Appellant filed a timely notice of appeal and raises the following assignment of error:
. "The trial court erred when overruling appellant's motion to suppress."
. In his assignment of error, appellant argues that the trial court erred by overruling his motion to suppress the results of the breathalyzer test. Appellant argues that the Spanish translation of the "test and refusal consequences," that he was given to read, was not a verbatim translation of the statutory language. Because the language was not verbatim, appellant argues, his consent to perform the breathalyzer test was not knowingly and voluntarily given. Thus, according to appellant, the breathalyzer test violated his Fourth Amendment rights.
. This court has held that:
. " t a hearing on a motion to suppress, the trial co
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