State v. Burkhart

Ohio Court of Appeals

State v. Burkhart

472 N.E.2d 52, 14 Ohio App. 3d 446, 14 Ohio B. 565, 1984 Ohio App. LEXIS 11932

CourtOhio Court of Appeals

DecidedMarch 22, 1984

Docket84AP-88

StatusPublished

This text of 472 N.E.2d 52 (State v. Burkhart) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Burkhart, 472 N.E.2d 52, 14 Ohio App. 3d 446, 14 Ohio B. 565, 1984 Ohio App. LEXIS 11932 (Ohio Ct. App. 1984).

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Opinions

Moyer, J.

Plaintiff, state of Ohio, has filed a motion for leave to appeal pursuant to R.C. 2945.67(A) and App. R. 5 from a judgment of the Municipal Court of Franklin County sustaining defendant’s objection to the admission of testimony regarding an intoxilyzer breath test where the test was administered forty-three minutes after the alleged violation of operating a motor vehicle while intoxicated' and entering a judgment of acquittal at the close of the state’s stipulated case. The trial court’s action was not taken in response to a motion to suppress. Defendant has filed no memorandum contra the motion for leave to appeal.

Although the state has not stated that the motion for leave to appeal is not taken for the purpose of delay as required by Crim R. 12(J), that defect is not prejudicial because the trial court entered judgment for defendant and the state therefore is obviously not appealing for purposes of delay. The state seeks an appeal for the sole purpose of determining whether the trial court erred by finding that a chemical test administered forty-three minutes after the defendant allegedly violated R.C. 4511.19(A)(3) reflects defendant’s blood alcohol content only at the time the test was administered but does not reflect defendant’s blood alcohol content at the time his motor vehicle was operated. The state does not appear to seek a reversal of defendant’s acquittal.

The state has properly supported its motion for leave to appeal, the issue is a legal issue that should be decided by this court, and the motion for leave to appeal is therefore sustained.

Motion for leave to appeal sustained.

Reilly, J., concurs. Whiteside, J., dissents.

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Moyer, J.

Plaintiff, state of Ohio, has filed a motion for leave to appeal pursuant to R.C. 2945.67(A) and App. R. 5 from a judgment of the Municipal Court of Franklin County sustaining defendant’s objection to the admission of testimony regarding an intoxilyzer breath test where the test was administered forty-three minutes after the alleged violation of operating a motor vehicle while intoxicated' and entering a judgment of acquittal at the close of the state’s stipulated case. The trial court’s action was not taken in response to a motion to suppress. Defendant has filed no memorandum contra the motion for leave to appeal.

Although the state has not stated that the motion for leave to appeal is not taken for the purpose of delay as required by Crim R. 12(J), that defect is not prejudicial because the trial court entered judgment for defendant and the state therefore is obviously not appealing for purposes of delay. The state seeks an appeal for the sole purpose of determining whether the trial court erred by finding that a chemical test administered forty-three minutes after the defendant allegedly violated R.C. 4511.19(A)(3) reflects defendant’s blood alcohol content only at the time the test was administered but does not reflect defendant’s blood alcohol content at the time his motor vehicle was operated. The state does not appear to seek a reversal of defendant’s acquittal.

The state has properly supported its motion for leave to appeal, the issue is a legal issue that should be decided by this court, and the motion for leave to appeal is therefore sustained.

Motion for leave to appeal sustained.

Reilly, J., concurs. Whiteside, J., dissents.

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Bluebook (online)

472 N.E.2d 52, 14 Ohio App. 3d 446, 14 Ohio B. 565, 1984 Ohio App. LEXIS 11932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burkhart-ohioctapp-1984.

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