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State v. Matheny12/26/2001
Defendant-Appellant William Matheny appeals the judgment of the Athens County Municipal Court, which, pursuant to his plea of no contest, found him guilty of reckless operation, a fourth degree misdemeanor, in violation of R.C. 4511.20. Appellant, who was originally charged with operating a motor vehicle while under the influence of alcohol, argues that the trial court erred by not excluding the results of a breath test administered to him following his arrest.
Specifically, appellant states that his rights to counsel under the Fifth and Sixth Amendments to the United States Constitution and Section 10, Article I, Ohio Constitution, were violated. He further argues that his rights under the Fourteenth Amendment to the United States Constitution and Section 14, Article I, Ohio Constitution, were violated. Finally, appellant argues that his statutory right to counsel under R.C. 9.84 was violated and that the police also violated R.C. 2935.20 by preventing him from seeking the advice of counsel prior to a breath test.
We find his arguments to be without merit and affirm the judgment of the trial court.
I. The Arrest and Breath Test
Officer Ralph Harvey of the Athens Police Department observed appellant driving his motor vehicle and weaving within his lane. The officer also observed appellant commit several traffic violations including speeding and failing to fully stop at a red traffic light. The officer proceeded to stop appellant for these violations.
Appellant performed several field-sobriety tests at Officer Harvey's request. Appellant poorly executed those tests and was arrested for driving under the influence of alcohol (OMVI) in violation of Athens City Code 7.03.07(A)(1) and (A)(3), which are parallel to R.C. 4511.19(A)(1) and (A)(3). Appellant was then transported to the Athens City Police Department.
At the police station, appellant was informed of the consequences of both taking, or refusing to take, the Blood-Alcohol Concentration (BAC) test and was read his Miranda rights. Appellant refused to sign a Miranda waiver and indicated that he wished to consult an attorney. Officer Harvey informed appellant that if he did not take the test, he would be recorded as having refused the test.
Once again, appellant was asked to take the test and was informed that he could contact a lawyer from the jail, after he took or refused the breath test. Appellant took the test, which indicated that his blood-alcohol content was over the legal limit, specifically .168 percent per 200 liters of breath.
Apparently, appellant pled not guilty to the OMVI charge and retained counsel to represent him.
II. The Trial Court Suppresses the BAC Test Results
Following an evidentiary hearing, at which Officer Harvey testified, and the filing of memoranda supporting the parties' positions, the trial court ruled that the BAC test results should be suppressed. The trial court rendered its decision in reliance upon this Court's decision in State v. Weaver (1993), 86 Ohio App.3d 427, 621 N.E.2d 526.
III. The Appeal by the State
The state filed a notice of appeal asserting that the trial court's ruling, suppressing the BAC test results, was improper. This Court, in State v. Matheny (July 28, 2000), Athens App. No. 00CA9, unreported, agreed with the state. We reversed the judgment of the trial court and remanded the action to the trial court.
Appellant filed a motion for reconsideration of our ruling, along with two supplemental memoranda in support of that motion. We denied appellant's motion for reconsideration.
Appellant also filed a jurisdictional
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