State v. Ambrozy

2023 Ohio 3961

• Court: Ohio Court of Appeals
• Decided: October 27, 2023
• Docket: OT-22-060
• Status: Published

Opinion

[Cite as State v. Ambrozy, 2023-Ohio-3961.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

State of Ohio Court of Appeals No. OT-22-060

Appellee Trial Court No. TRC 2104267 A

v.

Alma K. Ambrozy DECISION AND JUDGMENT

Appellant Decided: October 27, 2023

*****

James J. VanEerten, Ottawa County Prosecuting Attorney, and Blake W. Skilliter, Assistant Prosecuting Attorney, for appellee.

Brianna L. Stephan, for appellant.

OSOWIK, J.

{¶ 1} This is an appeal of a November 29, 2022 judgment of the Ottawa County

Municipal Court, granting appellee’s motion in limine to exclude a 1998 Ohio

Department of Health memorandum from appellant’s trial on one count of operating a

motor vehicle while under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(d), a misdemeanor of the first degree. Following a jury trial, appellant was found guilty and

the trial court sentenced appellant to 120 days in jail, with 90 days suspended. The court

further ordered an alcohol dependency evaluation and the completion of a six-day driver

intervention program. This appeal ensued. For the reasons set forth below, this court

affirms the judgment of the trial court.

{¶ 2} Appellant, Alma J. Ambrozy, sets forth the following sole assignment of

error:

The Trial Court abused its discretion by excluding evidence relevant

to the accuracy and reliability of the specific test results underlying the

charges in this case and otherwise helpful to the trier of fact in

understanding evidence introduced by the State.

Facts

{¶ 3} It was a very dark Halloween evening in 2021 just past ten o’clock when a

Port Clinton police sergeant was on patrol. The city was generally quiet. Sergeant Evan

Holtz was nearing the end of his shift at 11p.m. when he approached the intersection of

West 2nd Street near Monroe Street in the downtown area of Port Clinton, Ohio. Under

the streetlights of the evening appeared a tan Chevrolet SUV. It had no illuminated

taillights. Obviously, he was confronted with a hazardous situation that necessitated

police intervention. He activated the overhead lights and closed in behind the vehicle.

The sergeant would be working late. The SUV promptly pulled over to the side of the

road in the 100 block of East 2nd Street near Madison Street. It stopped in a crooked

2. manner between two parallel parking spots. After the stop, Sergeant Holtz exited his

patrol car and approached the vehicle. He quickly observed that the front headlights of

the SUV were also not illuminated.

{¶ 4} Appellant, the sole occupant of the vehicle, was the driver. Appellant asked

why she was being pulled over. Sergeant Holtz told her that the taillights were not on.

Without hesitation, appellant turned on her lights, immediately illuminating the front

headlights and rear taillights. On this All Hallow’s Eve, it was apparent that equipment

failure was not an issue.

{¶ 5} Sergeant Holtz noticed that appellant’s speech was slurred, her eyes were red

and glossy and there was an odor of alcohol. He asked Ambrozy if she had anything to

drink. She indicated that she had consumed four Michelob Ultra beers while at the VFW

and that she was now on her way home which was not far away. He asked appellant to

exit her vehicle and she complied. Ambrozy asked Sergeant Holtz again why she was

pulled over and he responded again that it was the taillights.

{¶ 6} Ambrozy was then administered a series of field sobriety tests by Sergeant

Holtz. Following the performance of these tests, appellant was placed under arrest for

operating a motor vehicle while under the influence of alcohol, in violation of R.C.

4511.19(A), a misdemeanor of the first degree. She was then transported to the Port

Clinton Police Department.

3. {¶ 7} Upon arrival at the police station, the appellant underwent a 20-minute

observation period prior to the performance of a Breath Alcohol Concentration (BAC)

breathalyzer test.

{¶ 8} The sergeant made sure that she did not have any foreign objects in her

mouth or ingested any material for 20 minutes prior to offering her the breath test.

{¶ 9} Appellant was then asked if she wanted to provide a breath sample.

Ambrozy consented. Patrolman Daniel Miasek operated the machine and administered

the test. On her first two attempts, the DataMaster Machine registered the attempts as

producing an “invalid sample.”

{¶ 10} Undisputed testimony from Patrolman Miasek, the officer that operated the

DataMaster Machine establishes that, in this instance, the reason for the invalid sample

was that appellant “would start and stop in providing a breath sample.”

{¶ 11} After encouragement from Officer Miasek and Sargeant Holtz, Ambrozy

attempted a third breath sample. That sample registered a BAC result of .137.

{¶ 12} This reading was in excess of the legal limit of alcohol concentration of

.08. Ambrozy was then charged with one count of operating a motor vehicle with a

concentration of eight-hundredths of one gram or more but less than seventeen-

hundredths of one gram by weight of alcohol per two hundred ten liters of the person’s

breath, in violation of R.C. 4511.19(A)(1)(d).

{¶ 13} On November 29, 2022, the case was scheduled for jury trial. Prior to

commencement of the jury trial, appellee made an oral motion in limine to the trial court.

4. Appellee was requesting the exclusion of a December 14, 1998 memorandum issued

from the Bureau of Alcohol and Drug Testing, Ohio Department of Health regarding

suggested waiting periods between successively performed BAC tests upon an individual

when an initial test fails to register results.

{¶ 14} That memorandum states:

Effective immediately an ‘invalid sample’ indication on the BAC

Verifier or BAC DataMaster is to be handled by initiating a new 20 minute

observation period. The reason for this change is due to the fact that

‘invalid sample’ may be caused by different things. The operator will no

longer have to decide exactly what may have caused the ‘invalid sample,’

the remedy will always be a new observation period.

{¶ 15} Appellee argued to the trial court that the memorandum should not be

introduced to the jury because it was not part of the Ohio Administrative Code or the

Ohio Revised Code. Appellant conceded to the trial court that the memorandum was

neither a regulation nor a statute and had not been adopted by the Ohio Department of

Health. The trial court granted the appellee’s motion and denied the use of the

memorandum in the course of the trial.

Standard of Review

{¶ 16} At the outset, we note that Ambrozy is not contesting the validity of the

traffic stop or the manner of the administration of the field sobriety tests. Her appeal to

5. this court takes exception to only the trial court’s ruling on the appellee’s motion in

limine concerning the 1998 memorandum.

{¶ 17} A motion in limine is a request to limit or exclude evidence or witness

testimony at trial. Because appellant is challenging the trial court's ruling on a motion in

limine, our standard of review is that which applies when a trial court excludes evidence.

We review to determine whether there was an abuse of discretion on the part of the trial

court. Thakur v. Health Care & Retirement Corp. of Am., 6th Dist. Lucas No. L-08-

1377, 2009-Ohio-2765, ¶ 16.

{¶ 18} An abuse of discretion connotes that the trial court’s judgment is

unreasonable, arbitrary, or unconscionable. State v. Wyse, 6th Dist., Lucas, No. L-22-

1129, 2023-Ohio-3550, ¶ 29, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d

144 (1980).

Analysis

{¶ 19} Remarkably, this 1998 memorandum and the precise arguments and issues

surrounding its application is not a matter of first impression before this court. Over two

decades ago in a case with curiously similar facts, we held that we would not extend the

power of the administrative agency of the Ohio Department of Health to affect the

methods of conducting and analyzing tests beyond formally enacted regulations. State v.

Gigliotti, 6th Dist. No. E-99-081, 2000 WL 1867265, *3 (Dec. 22, 2000).

6. {¶ 20} In Gigliotti, the state trooper observed the appellant for twenty minutes

prior to testing to prevent oral intake of any material. When appellant first blew into the

DataMaster Machine, he did not continue to blow. The device indicated an invalid

sample. The trooper then testified that he told appellant that “blowing invalid samples

will be marked as a refusal; I’m going to need him to take a deep breath and blow a

steady stream of air into the machine. And he agreed he would do it the second time.”

The first invalid test was given at 3:27 a.m. and the second test that registered a BAC of

.297 was given at 3:30 a.m. Id. at *3.

{¶ 21} The same 1998 memorandum was presented to the trial court in Gigliotti.

That trial court noted that the memorandum from the Ohio Department of Health did not

rise to the level of an administrative regulation. The trial court therefore ruled that “there

is no valid basis upon which to exclude the breath test based upon the subject December

14, 1998 memorandum from the Department of Health.” Id. at *4.

{¶ 22} In his appeal, Gigliotti presented two assignments of error. Each

assignment claimed error by the trial court in failing to suppress the BAC results for

failing to perform the tests in accordance with the “directive” issued by the Ohio

Department of Health regarding the initiation of a second twenty-minute observation

period after a BAC DataMaster breath machine registers an “invalid sample” result. Id.

at *1.

7. {¶ 23} In Gigliotti, the record contained the testimony of an official with the Ohio

Department of Health who directed the issuance of the notable memorandum on

December 14, 1998.

{¶ 24} The official testified that the memorandum was specifically not a regulation

and was confined to a fact pattern where the operator did not know what caused an

invalid sample. The official testified:

The recommendation was, again, if mouth alcohol was thought to be the

case or if the operator did not know what the case was, how to deal with the

Defendant to observe, then waiting would eliminate the issue of mouth

alcohol. Id. at *4.

{¶ 25} As we pointed out in Gigliotti, according to the official responsible for the

issuance of the 1998 memorandum, an additional twenty-minute observation period

should only be used if the operator was unsure of the cause of the invalid test or if the

operator could determine from the display that the cause of the invalid test was mouth

{¶ 26} Further, we explicitly held in Gigliotti that our opinion would not

incorporate and apply the 1998 memorandum:

Arguably, the memorandum describes a method for conducting the breath

test that has been approved by the Director of Health. However, we are

troubled by any ruling that would extend the power of the administrative

8. agency of the Ohio Department of Health to affect the methods of

conducting and analyzing tests beyond formally enacted regulations. Strict

procedures must be followed before a regulation is promulgated, giving all

interested parties a chance to comment. No such safeguards are in place for

directives issued through memorandums. We therefore agree with the state

of Ohio that a directive from a memorandum does not rise to the level of an

administrative regulation, and is not enforceable. See, State v. Gray, 4 Ohio

App.3d at 50 (administrative authority is creature of statute and cannot

expand its own jurisdiction or authority). Id. at *6.

{¶ 27} Additionally, in further support of her general claims, appellant loosely

cites to our opinion in State v. Williams, 6th Dist. Ottawa No. OT-03-020, 2004 -Ohio-

2453.

{¶ 28} We will point out that in Williams, we relegated the December 14, 1998

memorandum to a footnote. In that footnote, we noted that the memorandum simply was

little more than “illuminating” and remained without the force of a statute or regulation.

See Williams at fn. 1.

{¶ 29} Further, Williams is clearly distinguishable in many respects from this

appellant’s case. Williams was a civil appeal of a denial of an Administrative License

Suspension. The scope of an ALS appeal is limited to whether certain conditions,

predicates to the suspension, have not been met.

9. {¶ 30} The issue in Williams was limited to application of R.C.

4511.191(H)(1)(d)(i). The specific issue in the ALS appeal and her subsequent appeal to

this court was “whether the arrested person refused to submit to the chemical test

requested by the officer.” Id. at ¶ 9.

{¶ 31} The sole and precise issue in Williams was confined to whether appellant

refused the breathalyzer. We noted that Williams had admitted into evidence before the

trial court a note from her physician stating because appellant suffers from “extreme

anxiety” resulting in shortness of breath she was unable to use the breathalyzer. The

evidence at the hearing also indicated that she was on several prescription medications to

treat these conditions. Additionally, she had three esophageal surgeries that impacted her

breathing ability. The testing officer testified that he had no reason to doubt Williams.

Id. at ¶ 62.

{¶ 32} Based on the evidence that was presented to the trial court, we concluded

that Williams had shown, by a preponderance of the evidence, that she did not refuse to

take the breath alcohol test and that the trial court's contrary decision was not supported

by competent, credible evidence. Id. at ¶ 63.

{¶ 33} Thus, the legal issues and fact pattern that was present in Williams is not

analogous to the situation in Ambrozy’s appeal that is now before this court.

{¶ 34} Appellant also advances the argument that the exclusion of this noteworthy

1998 memorandum prevents her from a meaningful opportunity to present a defense

10. pursuant to Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed. 636 (1986).

However, the Court also held:

Moreover, we have never questioned the power of States to exclude

evidence through the application of evidentiary rules that themselves serve

the interests of fairness and reliability—even if the defendant would prefer

to see that evidence admitted. Chambers v. Mississippi, 410 U.S. 284, 302,

93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).

{¶ 35} This is precisely what occurred in Ambrozy’s case. The memorandum in

question was excluded by the trial court because it was not relevant and could not be used

by her as legal authority, even if she would have preferred to have the memorandum

admitted into evidence to contradict the methods of conducting the breathalyzer tests

pursuant to regulations established and promulgated in the Ohio Administrative Code.

{¶ 36} It is important to point out that appellant was not prevented from presenting

evidence concerning the reliability of the DataMaster Machine or the breath tests

administered to her. She was able to cross examine the operator. She was also able to

cross-examine the “senior operator” of the machine who calibrated the precise

breathalyzer unit, Port Clinton Officer Mark L. Anderson.

{¶ 37} Ambrozy was also not prevented from presenting evidence that would

show she was somehow unable to blow into the breathalyzer on the first two attempts.

11. {¶ 38} In this case, the trial court, in an evidentiary ruling, denied the use of a

1998 memorandum that was not relevant to her case and was never promulgated as part

of the Ohio Administrative Code.

Conclusion

{¶ 39} Upon review, we find that the trial court’s decision to grant appellee’s

motion in limine to prohibit the use of the December 14, 1998 memorandum from the

Bureau of Alcohol and Drug Testing, Ohio Department of Health, was not unreasonable,

unconscionable or arbitrary and hence, not an abuse of discretion.

{¶ 40} On consideration whereof, the judgment of the Ottawa County Municipal

Court is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to

App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE

12. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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