City of Hilliard v. Elfrink

672 N.E.2d 166, 77 Ohio St. 3d 155
CourtOhio Supreme Court
DecidedDecember 11, 1996
DocketNo. 95-2440
StatusPublished
Cited by41 cases

This text of 672 N.E.2d 166 (City of Hilliard v. Elfrink) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Hilliard v. Elfrink, 672 N.E.2d 166, 77 Ohio St. 3d 155 (Ohio 1996).

Opinion

Alice Robie Resnick, J.

We affirm the judgment of the court of appeals on the first certified issue (double jeopardy) based on this court’s decision in State v. [157]*157Gustafson (1996), 76 Ohio St.3d 425, 668 N.E.2d 435. Therefore, this opinion will address only the second certified issue.

The relevant issue certified for our review is: “[WJhether the failure of authorities to advise a defendant of his right to obtain an independent blood or chemical test pursuant to R.C. 4511.19(D)(3) requires suppression of the test results.” For the reasons which follow, we answer this certified issue in the negative and affirm the judgment of the court of appeals.

R.C. 4511.19(D)(3) provides, in part:

“The person tested may have a physician, a registered nurse, or a qualified technician or chemist of his own choosing administer a chemical test or tests in addition to any administered at the request of a police officer, and shall be so advised.”

In State v. Myers (1971), 26 Ohio St.2d 190, 55 O.O.2d 447, 271 N.E.2d 245, this court considered the same issue we consider today. Construing language virtually identical in substance to that contained in current R.C. 4511.19(D)(3) (then numbered R.C. 4511.19[B], 132 Ohio Laws, Part I, 1632-1633), the Myers court held at paragraph one of the syllabus: “The failure to advise a person chemically tested for determination of the concentration of alcohol in his blood that he ‘may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a police officer,’ as required by R.C. 4511.19(B), does not render the results of a police administered test inadmissible in evidence at trial.”

In deciding this issue the way it did, the Myers court, 26 Ohio St.2d at 196, 55 O.O.2d at 450, 271 N.E.2d at 249-250, first made the following observations:

“It should be noted that here we. are not confronted by any question of constitutional magnitude which might place this issue within the purview of the exclusionary rule first enunciated by the United States Supreme Court. See Mapp v. Ohio (1961), 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081], and, generally, State v. Cowans (1967), 10 Ohio St.2d 96 [39 O.O.2d 97, 227 N.E.2d 201].

“The United States Supreme Court has held that where a defendant refused to consent to a taking of his blood sample for chemical analysis, a blood sample taken over his objection and without his consent was admissible in evidence. In so holding, the court denied the contention that such procedure violated the Fourth, Fifth, Sixth, or the Fourteenth Amendments to the United States Constitution. Schmerber v. California (1966), 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908]. See, also, Breithaupt v. Abram (1957), 352 U.S. 432 [77 S.Ct. 408, 1 L.Ed.2d 448].

[158]*158“Rather than being faced with a constitutional problem in the case at bar, we are confronted with a statutory requirement that the person ‘shall be so advised,’ with no express sanction provided for the failure of the police officer to do so.” (Emphasis sic.)

The starting point for analysis of this issue in Myers remains our starting point today — the requirement of informing the person being tested that he or she may have an independent test administered is a statutory requirement and is not a constitutional requirement. Since the exclusionary rule is invoked only when violations of constitutional rights are involved, see Mapp v. Ohio, supra, the exclusionary rule in its traditional form has no application to the circumstances of this case. Although this court in Defiance v. Kretz (1991), 60 Ohio St.3d 1, 573 N.E.2d 32, and in State v. French (1995), 72 Ohio St.3d 446, 650 N.E.2d 887, held that a motion to suppress is the proper pretrial procedure for challenging breath-alcohol results, those cases should by no means be interpreted as a general retreat from the well-established principle that suppression of evidence is a remedy normally reserved for alleged violations of constitutional rights.

Black’s Law Dictionary (6 Ed.1990) 1014, defines a “motion to suppress” as a “[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation etc.), of U.S. Constitution.” Moreover, Black’s Law Dictionary (6 Ed.1990) 564, defines “exclusionary rule” as a rule which “commands that where evidence has been obtained in violation of the search and seizure protections guaranteed by the U.S. Constitution, the illegally obtained evidence cannot be used at the trial of the defendant.” See Kettering v. Hollen (1980), 64 Ohio St.2d 232, 234, 18 O.O.3d 435, 437, 416 N.E.2d 598, 600 (“In State v. Myers * * *, this court enunciated the policy that the exclusionary rule would not be applied to statutory violations falling short of constitutional violations, absent a legislative mandate requiring the application of the exclusionary rule.”).

Consequently, even though Kretz established that a motion to suppress is the proper way to challenge breath-alcohol results, it is crucial to recognize that when such a motion is granted in a Kretz-type case, the trial court is actually making what is essentially an evidentiary ruling, and is not applying the exclusionary rule in its customary form. Decisions such as Kretz and French are a specific narrow departure, for essentially pragmatic reasons, by this court from settled law regarding suppression of evidence, and the principles developed in those cases must be narrowly construed.

The court in Myers, 26 Ohio St.2d at 196, 55 O.O.2d at 450-451, 271 N.E.2d at 250, stated: “[W]e must look to the statutory rule in this state that the reversal [159]*159of a lower court’s conviction on the basis of ‘the admission or rejection of any evidence offered against or for the accused’ shall not be had ‘unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby.’ R.C. 2945.83. Accordingly, in the absence of a showing of prejudice having accrued to a defendant by the failure to advise him of his right to have an independent test made * * *, the results of a chemical test so administered may not be excluded from evidence. The record before us discloses no prejudice accruing to appellee from the admission of evidence regarding the chemical test performed; nor does it disclose evidence sufficient to support a finding as a matter of law that this test was improperly administered or its results erroneous.

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Bluebook (online)
672 N.E.2d 166, 77 Ohio St. 3d 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-hilliard-v-elfrink-ohio-1996.