 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Hayes12/14/2005
mpliance with the regulations that were actually in place, making the results of Defendant's second breath test admissible. As we found above, Defendant had been observed for more than twenty minutes prior to the administration of the first breath alcohol test, and in that time period, Defendant had not orally ingested anything. Sergeant Lundquist testified that between the first and the second breath test, which was administered at 10:09, he continued to observe Defendant, and noted that from the time between the initial stop and the time that the second breath test was administered, Defendant did not ingest anything orally.
{ } The purpose of the observation rule is to provide evidence that during the twenty minutes prior to the test, the defendant did not ingest some material that would produce an inaccurate test result. In re Eric W. (1996), 113 Ohio App.3d 367, at 372. There is no evidence that the results of the first breath test were invalid due to the presence of mouth alcohol; Defendant does not even allege that to be the case. As the purpose of the memorandum requiring a second twenty minute waiting period before administering a second breath test is to "avoid the numerous requests for testimony in court about the possibility of an 'INVALID SAMPLE' being the result of mouth alcohol[,]" Bosier, supra, and Defendant does not even raise the possibility that the invalid results of the first breath test were due to the presence of mouth alcohol, we find that Defendant was not prejudiced by the lack of a second twenty minute waiting period. Accordingly, we overrule Defendant's second assignment of error.
{ } Defendant's two assignments of error are overruled and the decision of the Medina Municipal Court denying Defendant's motion to suppress evidence is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Costs taxed to Appellant.
Exceptions.
LYNN C. SLABY
CARR, J., MOORE, J. CONCUR
|