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State v. Reilly12/20/2000
JUDGMENT: Affirmed in part, reversed in part and remanded
On April 21, 2000, Deputy Philip Snider of the Muskingum County Sheriff's Department was dispatched in reference to a vehicle in a ditch. While en route to the location, Deputy Snider observed appellant, Becky Reilly, walking along side the road. Deputy Snider stopped to investigate and discovered that appellant was the driver of the vehicle in the ditch. After investigating the matter further, Deputy Snider cited appellant for driving under the influence of alcohol in violation of R.C. 4511.19(A)(3) and failure to control in violation of R.C. 4511.202. On June 13, 2000, appellant filed a motion to suppress claiming the breath test was not taken within two hours of the alleged violation and Deputy Snider did not have probable cause to arrest appellant. A hearing was held on August 9, 2000. Thereafter, the trial court denied said motion. On August 23, 2000, appellant pled no contest to the charges. The trial court found appellant guilty and sentenced her to three days in jail and imposed a $450 fine plus court costs. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO SUPPRESS APPELLANT'S BREATH TEST SINCE THE STATE FAILED TO PROVE THE TEST WAS ADMINISTERED WITHIN 2 HOURS OF HER OPERATION OF THE VEHICLE AS REQUIRED IN O.R.C. 4511.19(D).
II THE TRIAL COURT ERRED IN FINDING PROBABLE CAUSE EXISTED TO ARREST APPELLANT IN THAT THE OFFICER DID NOT VIEW OPERATION OF THE VEHICLE AND APPELLANT COMMITTED NO UNLAWFUL VIOLATIONS PRIOR TO HER BEING ARRESTED BY PLACING HER IN THE POLICE CRUISER.
Both assignments of error challenge the trial court's denial of appellant's motion to dismiss. There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are again the manifest weight of the evidence. State v. Fanning (1982), 1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993), 86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. State v. Williams (1993), 86 Ohio App.3d 37. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95 Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; Guysinger. As the United States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, 1663, " . . . as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal."
I.
Appellant claims the trial court erred in denying her motion to suppress the results of her breath test because no evidence was presented to prove that it had been administered according to the regulations set forth by the Department of Health. We agree. Appellant was charged with violating R.C. 4511.19(A)(3) which states as follows: (A) No person shall operate any vehicle, streetcar, or track
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