HAMILTON COUNTY MUNICIPAL COURT
HAMILTON COUNTY, OHIO
State of Ohio
Plaintiff
-vs-
:
Case No: «casenumber»
:
Judge: «judge»
:
«defendant»
:
Defendant
:
MOTION TO SUPPRESS WITH
SUPPORTING MEMORANDUM
(Intoxilyzer 8000)
:
Now comes Defendant, by and through counsel, and respectfully moves the Court to
suppress the evidence obtained after the unlawful stop and warrantless seizure including:
1. Any tests of Defendant’s coordination, sobriety, alcohol or drug level, including
chemical tests. 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 Defendant.
3. Any statements made by 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
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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).
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 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 Defendant’s test for alcohol did not have a valid
operator access card issued by the director of health. Ohio Adm.Code 3701-5309(D).
6. The individual administering Defendant’s test for alcohol did not follow the
operator’s manual for the instrument. The breath sample was not analyzed
according to the instrument display for the instrument being used. Ohio Adm.Code
3701-53-02(E).
7. The individual administering 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 blood, breath, urine, or other bodily substance be
“withdrawn within three hours of the time 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 3701-53-01, 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 370153-01 through 06.
8. The test results were not expressed in grams by weight of alcohol per two hundred
ten liters of deep lung breath, and such results were not retained for three years,
and a copy of the written procedure manual was not on file in the area where the
analytical tests were performed. Ohio Adm.Code 3701-53-01(A) and (B).
9. The instrument utilized to test Defendant’s alcohol content was not included in the
list of approved instruments. Ohio Adm.Code 3701-53-02(A) and (B).
10. The results of the subjects test as well as all other records were not retained for
three years. Ohio Adm.Code 3701-53-02(E ).
11. The instrument did not perform a dry gas control test before and after every subject
test, where a subject test is two breath samples. Although a dry gas control is not
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required between the two breath samples, the dry gas standard must be traceable
to the National Institute of Standards and Technology (NIST). Ohio Adm.Code 370153-04(B).
12. The dry gas control was not valid because its result was not within .005 grams per
two hundred ten liters of the alcohol concentration on the manufacturer’s
certificate of analysis for that dry gas standard. Additionally, the instrument did not
abort the subject test when the dry gas control exceeded the .005 parameter. Ohio
Adm.Code 3701-53-04(B).
13. The instrument certification was not performed by a representative from the
director of health using a solution containing ethyl alcohol approved by the director
of health. Also, the instrument was not certified each calendar year or when the dry
gas standard was replaced. Ohio Adm.Code 3701-53-04(C).
14. The instrument certification was not made when the instrument was placed in
service, or returned after service or repairs, and before the instrument is used to
test subjects. Ohio Adm.Code 3701-53-04(D).
15. The instrument certification results were not within .005 of the target value for that
approved solution, and/or the instrument was not removed for service or repair.
Ohio Adm.Code 3701-53-04(C).
16. Qualified personnel did not perform the breath test on Defendant as required by
Ohio Adm.Code 3071-53-07(C). In fact, there are no qualifications for officers who
possess an access card to operate the Intoxilyzer 8000.
17. The use of certificates of affidavits purporting to prove the qualifications of any
operator, or purporting to prove the quantitative value of an approved solution,
violates Defendant’s constitutional right to confront the witnesses.
18. The bottle of approved solution was used more than three months after its date of
first use or after the manufacturer’s expiration date. Ohio Adm.Code 3701-53-04(E).
19. The bottle of approved solution was not kept under refrigeration after first use, and
the solution container has not been retained for reference until the calibration
solution is discarded. Ohio Adm.Code 3701-53-04(E).
20. The results of instrument certifications and records of maintenance and repairs have
not been retained for three years. Ohio Adm.Code 3701-53-04(G).
21. Statements by Defendant were obtained in violation of the Fifth Amendment right
against self-incrimination and both the Fifth and Sixth Amendment right to counsel,
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made applicable by the States by the Fourteenth Amendment, and by Article I,
Section 10 of the Constitution of the State of Ohio.
22. Physical evidence seized from Defendant or the vehicle was done so in violation of
the Fourth Amendment to the Constitution of the United States, made applicable to
the States by the Fourteenth Amendment, and by Article I, Section 14 of the
Constitution of the State of Ohio.
Statement of Facts
(Relate the facts of your particular case here)
Memorandum in Support
The Stop
Any time the driver of a moving vehicle is stopped and detained there is a seizure, even
if it is 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,
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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
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
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under Ohio Adm.Code 3701-53.02. Second, other jurisdictions in Ohio have determined 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-P-0129, 2005-Ohio3399. 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]
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 Defendant
was operating a motor vehicle under the influence.
Search of Person or Car
The police seized and searched Defendant’s person and vehicle without a search
warrant and without consent. Consequently, the State violated 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 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
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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 Defendant or vehicle must be declared 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 given to a defendant are erroneous
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, 1987 Ohio App. LEXIS 8439 (Aug. 20, 1987).
Second, before the results of any alcohol or drug test given to 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 3701-53-01. State v. Lipsky, 1st. Dist. Hamilton No. C-010473, 2002Ohio-1141.
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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 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
Defendant’s right to confront the witnesses.
Statements
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
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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). Courts 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.
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 ________________.
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________________________________
«attorney», # «osc_number»
Attorney for Defendant
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