2 Hour Breath Test Rule circumvented by Delaware Court

The Ohio Director of Health has decreed (pursuant to a delegation of legislative authority from the Ohio Legislature) that no breath test result is admissible in a drunk driving case unless it was obtained within (it used to be two hours) three hours of the suspect driving the vehicle. This has always stymied police who come upon a vehicle by the side of the road with an intoxicated driver in it. If the defendant remains silent, who can testify as to when the vehicle was last operated?

In the case of State v. Kee, 2005-Ohio-4707, the suspect was driving his car in the city of Delaware Ohio at some point during the evening of February 5, 2004. A local resident listening to CB radio broadcasts heard people driving near the ramp to 23 North state that at 10:17 PM there was an accident scene there.

The Delaware County Sheriff’s office tasked to investigate showed up on the scene. The deputy saw a man running on the ramp to Rte. 23 and stopped him. The man had all the indicia of heavy intoxication. The man did not answer any questions about when the crash occurred. No witness ever testified before court about seeing the crash.

The defendant’s attorney made a motion to suppress the results of the breath test. He argued that upon a motion to suppress, the state of Ohio must put forward evidence that it complied with the Ohio Director of Health’s two hour rule (it’s now a three hour rule).

The Delaware County Sheriff’s Deputy arriving at the scene testified he saw airbag powder in the air around the crash site when he arrived. He also testified that he arrived at the crash site between five and 10 minutes after being dispatched in response to the 10:17 PM report of a car by the divider. The person listening to the CB radio transmissions testified that the crash was first reported at 10:17 PM.

The Delaware County Municipal Court overruled the defendant’s motion to suppress finding that there was sufficient evidence that the crash occurred within two hours of the suspect being tested back at the police station. However, all of these witnesses also testified that they did not see the crash.

The defendant pled “no contest” to the charges thereby preserving his right to appeal the Delaware County Municipal Court ruling to Ohio’s Fifth District Court of Appeals. However, the Fifth District Court of Appeals upheld the result of the Trial Court’s ruling.

Ohio’s Fifth District Court of Appeals avoided ruling upon whether or not the test was taken and administered within the required two (now three) hour time limit of when the suspect was last seen driving. Instead, the court reasoned that since appellant never argued that his conviction was against the manifest weight of the evidence, whether the result came in or not doesn’t matter.

Naturally, parties to litigation do not argue about something that isn’t contested. The Defendant argued through his attorney that the evidence should have been suppressed, but not that there was enough evidence to convict him.