HAMILTON COUNTY MUNICIPAL COURT
HAMILTON COUNTY, OHIO
State of Ohio
:
Case No: «casenumber»
Judge: «judge»
Plaintiff
-vs«defendant»
:
Defendant
:
MOTION TO SUPPRESS WITH
SUPPORTING MEMORANDUM
(Intoxilyzer 5000/Datamaster)
:
The Defendant asks the Court to suppress the evidence obtained after the unlawful stop
and warrantless seizure including:
1. Any tests of the Defendant’s coordination, sobriety, alcohol or drug level, including
chemical tests. The Defendant asks the Court to require the State to lay the
foundation for the admission of these tests at trial by demonstrating conformity to
the requirements of the Ohio Revised Code, the Ohio Administrative Code, and all
applicable provisions of the Constitutions of the United States and the State of Ohio.
These requirements are stated with specificity in the body of this motion.
2. Any observations and opinions of the police officer(s) who stopped, detained,
arrested, and tested the sobriety level of the Defendant.
3. Any statements made by the Defendant.
4. Any physical evidence obtained by the police.
Defendant submits the burden of proof is upon the State to justify the warrantless
seizure and to show why the above evidence should not be suppressed for the following
reasons:
1. There was no lawful cause to stop, detain, nor probable cause to arrest Defendant
without a warrant.
2. The individual that administered field sobriety tests on Defendant was not certified
to administer the tests and administered the field sobriety tests in a manner that
jeopardized their scientific validity. Specifically, the tests were not administered in
substantial compliance with the testing standards in effect at the time the tests
were administered. R.C. 4511.19(D)(4)(b).
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3. The individual who administered field sobriety tests on Defendant administered
tests that were not reliable, credible, and generally acceptable as required by R.C.
4511.19(D)(4)(b).
4. The test or tests to determine the Defendant’s alcohol or drug level were not taken
voluntarily and were unconstitutionally coerced by threat of loss of license not
sanctioned by the requirements of R.C. 4511.191.
5. The individual administering the Defendant’s test for alcohol or drugs did not
conduct the test in accordance with the time limitation and regulations of the State
of Ohio in R.C. 4511.19(D), requiring that the Defendant’s blood, breath, urine, or
other bodily substance must be withdrawn within three hours of the alleged
violation. The individual failed to comply with the Ohio Department of Health
regulations governing such testing and analysis, as set forth in Ohio Adm.Code 370153-01, 02, 03, 04, 05, and 06 of the Ohio Administrative Code, including the
operator’s instructions issued by the Ohio Department of Health included in the
appendices of Ohio Adm.Code 3701-53-01, 02, 03, 04, 05, and 06.
6. A qualified person did not perform the breath test on the Defendant as required by
Ohio Adm.Code 3701-53-07(C).
7. The machine or instrument analyzing the Defendant’s alcohol and/or drug level was
not authorized in accordance with the manner required by Ohio Adm.Code 3701-5301, 02, 03, and 04.
8. The operational manual provided by the instrument’s manufacturer was not kept on
file where the analytical test was performed as required by Ohio Adm.Code 3701-5301(B).
9. A qualified senior operator did not perform an instrument check on approved
evidential breath testing instruments and a radio frequency interference (RFI) check
no less frequently than once every seven days in accordance with the appropriate
instrument checklist. Ohio Adm.Code 3701-53-04(A). Additionally, the instrument
check created a result that was not within five one thousandths of the target value
for the approved solution. Ohio Adm.Code 3701-53-04(A)(1) and (A)(2).
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10. The instrument was not checked using an instrument check solution containing
ethyl alcohol and approved by the director of health. Ohio Adm.Code 3701-5304(A)(2).
11. The instrument check or certification was not made when a new evidential breath
testing instrument was placed in service or when the instrument was returned after
service or repairs and before the instrument was used to test subjects. Ohio
Adm.Code 3701-53-04(D).
12. The use of certificates or affidavits purporting to prove the qualifications of any
operator or senior operator, or purporting to prove the quantitative value of an
instrument check solution, violates the Defendant’s constitutional right to confront
witnesses.
13. The instrument check solution was used more than three months after its date of
first use or the solution was used after the manufacturer’s expiration date. The
check solution was not kept refrigerated when it was not being used. Finally, the
check solution bottle was not retained for reference until it was discarded. Ohio
Adm.Code 3701-53-04(E).
14. The test results and the results of instrument checks, controls, certifications,
calibration checks, and records of service and repairs have not been retained for
three years. Ohio Adm.Code 3701-53-01(A) and OAC 3701-53-04(G).
15. Statements made by the Defendant were obtained without consent and in violation
of the Fifth Amendment right against self-incrimination and the Fifth and Sixth
Amendment rights to counsel.
16. All physical evidence seized from the Defendant or found as a result of the search of
the Defendant’s person or vehicle was obtained in violation of the Fourth
Amendment right to be free from unreasonable search and seizure.
Statement of Facts
(Relate the facts of your particular case here)
Memorandum in Support
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The Stop
Any time the driver of a moving vehicle is stopped and detained there is a seizure, even
if it’s a routine traffic stop. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89
(1996). The seizure is governed by the Fourth and Fourteenth Amendments to the United
States Constitution. State v. King, 1st Dist. Hamilton Nos. C-980523 & C-980524, 1999 Ohio App.
LEXIS 1180 (Mar. 26, 1999). A routine traffic stop will be considered a reasonable seizure if the
police officer had reasonable and articulable suspicion that a traffic violation occurred. Whren,
supra.
The Detention
Once a ticket or warning is given to someone on a routine traffic stop, the lawful
purpose of the original stop is complete. The lawful basis for the detention of the individual
ceases at that point and any further detention, without more, constitutes an illegal seizure. If
the police seek to continue to detain the defendant, they must show some reasonable,
articulable suspicion that criminal activity is afoot. State v. Robinette , 80 Ohio St.3d 234, 685
N.E.2d 762 (1997). While an officer’s subjective motivation for continuing a stop is irrelevant,
there must be circumstances that objectively justify the continued stop. Whren v. United
States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). A reasonable suspicion must be
something more than an unparticularized suspicion or a mere hunch. Terry v. Ohio, 392 U.S. 1,
88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The Arrest
In order to be constitutionally valid, a warrantless arrest must be supported by probable
cause. In determining whether the police had probable cause to arrest an individual for driving
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while under the influence of alcohol, the court must consider whether, at the moment of
arrest, the police had sufficient information, derived from a reasonably trustworthy source of
facts and circumstances, sufficient to cause a prudent person to believe that the suspect was
driving under the influence. In making this determination, the court will examine the totality of
facts and circumstances surrounding the arrest. State v. Homan, 89 Ohio St.3d 421, 732 N.E.2d
952 (2000).
The State may attempt to prove probable cause by introducing the results of
field sobriety tests. An officer may testify concerning the results of the field sobriety tests if it is
shown by clear and convincing evidence that the officer administered the test in substantial
compliance with the testing standards for any reliable, credible, and generally accepted field
sobriety tests that were in effect at the time the tests were administered, including, but not
limited to, any testing standards then in effect that were set by the National Highway Traffic
Safety Administration. R.C. 4511.19(D)(4)(b).
The State may attempt to introduce the results of a portable breath test. The result of
this test is inadmissible. First, a portable breath test is not recognized as an approved device
under Ohio Administrative Code 3701-53.02. Second, other jurisdictions in Ohio have
determined that the results of a portable breath test are inadmissible to determine probable
cause. State v. Ferguson, 3rd Dist. Defiance No. 4-01-34, 2002-Ohio-1763; City of Cleveland v.
Sanders, 8th Dist. No. 83073, 2004-Ohio-4473; State v. Delarosa, 11th Dist. Portage No. 2003-P0129, 2005-Ohio-3399. The Court should not consider the results of a portable breath test in
reviewing probable cause.
Probable cause to arrest does not exist in this case. [FACTS INDICATING PROBABLE
CAUSE DOES NOT EXIST]
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Where an arrest without a warrant violates the probable cause requirements under the
Fourth and Fourteenth Amendments, evidence secured incident to such arrest should be
excluded from the trial. State v. Timson, 38 Ohio St.2d 122, 311 N.E.2d 16 (1974). In this case,
the totality of the circumstances would not cause a prudent person to believe that the
Defendant was operating a motor vehicle under the influence.
Search of Person or Car
The police seized and searched the Defendant’s person and vehicle without a search
warrant and without consent. Consequently, the State violated the Defendant’s protected
rights under the Fourth and Fourteenth Amendments of the United States Constitution and
Article I, Section 14 of the Ohio Constitution. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968). The officer must have articulable facts upon which he must rely to support a pat
down search of the Defendant’s person and the interior of the car. Id. Thus, where events are
circumstantially innocuous or too skeletal and ambiguous to create any reasonable suspicion
that an individual was engaged in or was about to engage in criminal activity, the search of that
individual is unwarranted and unconstitutional. State v. Barrow, 60 Ohio App.2d 335, 397
N.E.2d 422 (1st. Dist. 1978). Any evidence seized pursuant to the unconstitutional seizure and
search of the Defendant or vehicle must be rendered inadmissible at trial. Mapp v. Ohio, 367
U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Chemical Test
First, when implied consent warnings are misstatements of law, consent to submit to a
chemical test is involuntary and such evidence is unconstitutionally obtained under the Fourth
Amendment and must be suppressed. State v. Taggart, 4th Dist. Washington No. 86 CA 21,
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1987 Ohio App. LEXIS 8439 (Aug. 20, 1987). Second, before the results of any alcohol or drug
test given to the Defendant are admissible in evidence, the State must lay the foundation for
the admission of that test at the hearing on the motion to suppress. State v. French, 72 Ohio
St.3d 446, 650 N.E.2d 887 (1995). It is incumbent upon the State to show that the instrument
was in proper working order, that its manipulator had the qualifications to conduct the test,
and that such test was made in accordance with the Ohio Department of Health Regulations, as
well as within the three hour testing limitation of R.C. 4511.19(D); City of Newark v. Lucas , 40
Ohio St.3d 100, 532 N.E.2d 130 (1988). The State must also demonstrate substantial
compliance with the record keeping requirements of Ohio Adm.Code 3701-53-04 and 3701-5301. State v. Lipsky, 1st. Dist. Hamilton No. C-010473, 2002-Ohio-1141.
The State may attempt to use copies of certificates or affidavits to prove the
qualifications of any operator and the quantitative value of solutions. The use of these
documents violates the Defendant’s constitutional right to confront the witnesses. This right is
established by the Sixth Amendment of the United States Constitution and by Article I, Section
10 of the Ohio Constitution. This right has also been established by the United States Supreme
Court. Any hearsay evidence which is “testimonial” in nature is inadmissible regardless of any
exception in the statutory hearsay rules. Crawford v. Washington, 541 U.S. 36, 124 S.Ct 1354,
158 L.Ed.2d 177 (2004). The documents are certainly testimonial because their only purpose is
the prosecution of persons charged with OVI. The use of these documents is a violation of the
Defendant’s right to confront the witnesses.
Statements
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A “custodial interrogation” which triggers the requirement that law enforcement
officers administer Miranda warnings to a suspect is defined as questioning after a person has
been deprived of his or her freedom of action in any significant way. Thompson v. Keohane, 516
U.S. 99, 107, 116 S.Ct. 457, L.Ed.2d 383 (1995); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966). To determine whether a suspect was in custody, a court must
consider the circumstances surrounding the interrogation and whether, given those
circumstances, a reasonable person would have felt that he or she was at liberty to terminate
the interrogation and leave. Thompson at 112. “A defendant who is subjected to custodial
interrogation must be advised of his or her Miranda rights and make a knowing and intelligent
waiver of those rights before statements obtained during the interrogation will be admissible.”
State v. Treesh, 90 Ohio St.3d 460, 2001-Ohio-4, 739 N.E.2d 749. A statement obtained in the
absence of the requisite warnings is considered a product of coercive influences and is
compelled within the meaning of the Fifth Amendment to the United States Constitution. State
v. Roberts, 32 Ohio St.3d 225, 227, 513 N.E.2d 720, 722 (1987).
Additionally, the Sixth Amendment of the United States Constitution and Article I,
Section 10 of the Ohio Constitution guarantee the accused the right to have an attorney
present at all custodial stages of a criminal prosecution. A waiver of these rights must be based
upon a voluntary, knowing, and intelligent decision. Miranda v. Arizona, 385 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966). Court should indulge in every reasonable presumption, arising
from the facts and circumstances, that weigh against any waiver of fundamental constitutional
rights. State v. Jones, 37 Ohio St.2d 21, 306 N.E.2d 409 (1974).
Wherefore, this motion should be granted and all evidence excluded from trial.
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Respectfully submitted,
________________________________
«attorney», # «osc_number»
Attorney for Defendant
«address1»
«address2»
«city», «state» «zip»
«phone»
CERTIFICATE OF SERVICE
I hereby certify that a copy of this document was delivered by ____________
to the office of the Cincinnati Hamilton County Prosecutor on ________________.
________________________________
«attorney», # «osc_number»
Attorney for Defendant
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