State v. French

650 N.E.2d 887, 72 Ohio St. 3d 446
Ohio Supreme Court·Decided July 5, 1995·No. No. 94-67·Published·Cited by 240 cases

Opinion

Moyer, C.J.

The issue certified to this court by the Second District Court of Appeals is “whether a challenge to the results of a breath alcohol test on the basis of failure to comply with regulations of the Ohio Department of Health may be raised by a criminal defendant in the form of an objection to the admissibility of that test result during the course of trial, when the defendant has not moved to [449] suppress the test result upon that ground before trial.” For the reasons that follow, we hold that a defendant who does not object to the admissibility of a breath-alcohol test through a pretrial motion to suppress on the basis of a failure by the state to comply with Ohio Department of Health regulations may not object to the admissibility of the test results at trial on those grounds.

Crim.R. 12(B), which addresses pretrial motions, provides:

“(B) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial:
U * * *
“(3) Motions to suppress evidence * * * on the ground that it was illegally obtained. * * * ”

The purpose and effect of a motion to suppress and a motion in limine are distinct. A “motion to suppress” is defined as a “[djevice 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.” Black’s Law Dictionary (6 Ed.1990) 1014. Thus, a motion to suppress is the proper vehicle for raising constitutional challenges based on the exclusionary rule first enunciated by the United States Supreme Court in Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and made applicable to the states in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Further, this court has held that the exclusionary rule will not ordinarily be applied to suppress evidence which is the product of police conduct that violates a statute but falls short of a constitutional violation, unless specifically required by the legislature. Kettering v. Hollen (1980), 64 Ohio St.2d 232, 235, 18 O.O.3d 435, 437, 416 N.E.2d 598, 600. An important characteristic of a motion to suppress is that finality attaches so that the ruling of the court at the suppression hearing prevails at trial and is, therefore, automatically appealable by the state. R.C. 2945.67(A); Crim.R. 12(J); see, also, State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277, 477 N.E.2d 1141.

A “motion in limine ” is defined as “[a] pretrial motion requesting [the] court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to [the] moving party that curative instructions cannot prevent [a] predispositional effect on [the] jury.” Black’s Law Dictionary, supra, at 1013. The purpose of a motion in limine “is to avoid injection into [the] trial of matters which are irrelevant, inadmissible and prejudicial,] and granting of [the] motion is not a ruling on evidence and, where properly drawn, granting of [the] motion [450] cannot be error.” Id. at 1013-1014. See State v. Maurer (1984), 15 Ohio St.3d 239, 259, 15 OBR 379, 396, 473 N.E.2d 768, 787.

A ruling on a motion in limine reflects the court’s anticipated treatment of an evidentiary issue at trial and, as such, is a tentative, interlocutory, precautionary ruling. Thus, “the trial court is at liberty to change its ruling on the disputed evidence in its actual context at trial. Finality does not attach when the motion is granted.” Defiance v. Kretz (1991), 60 Ohio St.3d 1, 4, 573 N.E.2d 32, 35, citing State v. Grubb (1986), 28 Ohio St.3d 199, 201-202, 28 OBR 285, 288, 503 N.E.2d 142, 145.

Confusion and inaccuracy may arise, however, because a motion in limine may be used in two ways. It may be used as a preliminary means of raising objections to evidentiary issues to prevent prejudicial questions and statements until the admissibility of the questionable evidence can be determined outside the presence of the jury. It may also be used as the functional equivalent of a motion to suppress evidence that is either not competent or improper due to some unusual circumstance not rising to the level of a constitutional violation. Palmer, Ohio Rules of Evidence, Rules Manual (1984) 446, cited in State v. Maurer, supra, 15 Ohio St.3d at 259, 15 OBR at 396-397, 473 N.E.2d at 787, fn. 14.

It is true that a subtle distinction exists between the exclusionary rule, which is relied upon when evidence is improperly seized, and the Rules of Evidence, which generally apply to procedural questions concerning the admissibility of evidence at trial. Moreover, challenges to the admissibility of chemical test results on the basis of noncompliance with Department of Health testing regulations do not present a question of constitutional magnitude. However, “[t]he traditional distinction between a motion to suppress based upon a constitutional challenge and' a motion in limine does not work as a bright-line rule where the motion to suppress is directed to breathalyzer test results based on a failure to comply with ODH regulations.” Defiance v. Kretz, supra, 60 Ohio St.3d at 4, 573 N.E.2d at 35.

In holding at the syllabus that “[a] motion to suppress is a proper pretrial procedure for challenging breathalyzer test results when the defendant is charged with a violation of R.C. 4511.19(A)(3),” the Kretz court noted that the intent of the Rules of Criminal Procedure “is to determine matters before trial when possible.”1 Id. at 4, 573 N.E.2d at 34. This policy “applies not only to constitutional issues but also to non-constitutional claims capable of determination [451] without a trial on the general merits.” State v. Ulis (1992), 65 Ohio St.3d 83, 85, 600 N.E.2d 1040, 1041-1042.

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State v. French, 650 N.E.2d 887, 72 Ohio St. 3d 446 (Ohio 1995).

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