State v. McVey

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State v. McVey

State: Ohio

Court: Ohio Southern District Court

Docket No: 2000-Ohio-1950

Case Date: 12/28/2000

Plaintiff: State

Defendant: McVey

Preview:[Cite as State v. McVey, 2000-Ohio-1950.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY State of Ohio, Plaintiff-Appellee, vs. Terry McVey, Defendant-Appellant. : : : : : : : : :

Case No. 00CA36 DECISION AND JUDGMENT ENTRY RELEASED: 12/28/00

APPEARANCES Thomas S. Hodson, Athens, Ohio, for appellant. George P. McCarthy, Athens City Prosecuting Attorney, Athens, Ohio, for appellee.

Kline, P.J.: Terry McVey appeals his conviction for operating a motor vehicle while under the influence of alcohol ("OMVI"). McVey

asserts that the Athens County Municipal Court should have granted his motion to suppress the results of his breath test. Because the law permits the state to tack the arresting officer's observation time to the testing officer's observation time, we disagree. McVey also asserts that the trial court

should have granted his motion to suppress because he was

Athens App. No. 00CA36 wearing dentures at the time of the test.

2 Because no law or

regulation requires the state to prove that the test subject was not wearing dentures at the time of his test, we disagree. Accordingly, we affirm the judgment of the trial court. I. Athens Police Officer Kyle Groves stopped McVey for speeding and subsequently arrested him for OMVI, a violation of Athens City Code 7.03.07(A)(1) and R.C. 4511.19(A)(1). Officer

Groves asked McVey several times whether he had anything in his mouth such as gum or tobacco. McVey replied that he did not

have anything in his mouth, though at the time he had his upper plate of dentures in place. handcuffs. Although Officer Groves was certified to conduct breath testing on the Athens Police Department's Intoxilizer 5000 machine, the machine was being serviced that morning. Therefore, Officer Groves transported McVey to the Ohio State Highway Patrol ("OSHP") Post. There, OSHP Trooper Woodyard Officer Groves placed McVey in

administered a breath test on OSHP's BAC Datamaster machine. During the approximately forty minute period between McVey's arrest and his breath test, Officer Groves continuously observed McVey to assure that McVey did not put anything in his mouth.

Athens App. No. 00CA36

3

Trooper Woodyard observed McVey for only two to fifteen minutes. Therefore, on the test report form, Trooper Woodyard asked Officer Groves to initial the checklist next to the "observe subject for twenty minutes" requirement. Neither Officer Groves nor Trooper Woodyard asked McVey if he was wearing dentures before Trooper Woodyard administered the test. McVey's breath test registered a concentration of alcohol

in excess of the legal limit pursuant to Athens City Code 7.03.07(A)(3) and R.C. 4511.19(A)(3). Officer Groves then

transferred McVey to the Athens Police Station and charged him accordingly under Athens City Code 7.03.07(A)(1) and 7.030. Officer Groves then inquired whether McVey wore false teeth and learned that McVey had worn his upper plate during the breath test. McVey initially pled not guilty to the OMVI charges. He

filed a motion to suppress the results of his breath test on the grounds that he was not observed for twenty minutes prior to testing and on the grounds that his dentures interfered with his test result. The trial court denied McVey's motion. McVey

changed his plea to no contest, and the trial court found him guilty.

Athens App. No. 00CA36 On appeal, McVey asserts the following assignments of error: I.

4

The trial court erred in finding that the state complied with the requirement of a twenty minute observation period before administering a breath test. The trial court erred in allowing breath test results when the appellant was wearing dentures during the test. II.

II.

Appellate review of a decision on a motion to suppress evidence presents mixed questions of law and fact. United At a

States v. Martinez (C.A.11 1992), 949 F.2d 1117, 1119.

suppression hearing, the trial court assumes the role of trier of fact, and as such, is in the best position to resolve questions of fact and evaluate witness credibility. Carter (1995), 72 Ohio St.3d 545, 552. State v.

A reviewing court must

accept a trial court's factual findings if they are supported by competent, credible evidence. Ohio App.3d 592, 594. State v. Guysinger (1993), 86

The reviewing court then applies the

factual findings to the law regarding suppression of evidence. Where the trial court fails to make factual findings, we look directly to the record to determine "if there is sufficient evidence demonstrating that the trial court's decision was legally justified and supported by the record." (1992), 64 Ohio St.3d 476, syllabus. State v. Brown

An appellate court reviews

Athens App. No. 00CA36 the trial court's application of the law de novo. Anderson (1995), 100 Ohio App.3d 688, 691. III.

5 State v.

In his first assignment of error, McVey claims that the trial court erred in finding that the state successfully demonstrated that a certified operator of the testing equipment observed him for twenty minutes. At the hearing on his motion

to suppress, McVey focused his argument on the fact that Trooper Woodyard did not observe him for twenty minutes. The state

conceded that Trooper Woodyard did not observe McVey for twenty minutes, but contended that it could tack Officer Groves' observation time to Trooper Woodyard's observation time in order to satisfy the twenty-minute requirement. On a pretrial motion to suppress breath test results, the state has the burden of proving that the test was conducted in accordance with law. Reynoldsburg v. Hamad (Feb. 18, 1999), The trial court should

Franklin App. No. 98AP545, unereported.

admit the test results into evidence if the state can demonstrate "substantial compliance" with the applicable regulations. State v. Plummer (1986), 22 Ohio St.3d 292; State The applicable

v. Perry (1996), 108 Ohio App.3d 709, 712-713.

regulations in this case require that the test subject be observed for twenty minutes prior to testing in order to prevent

Athens App. No. 00CA36 the oral intake of any material. 02(B) and appendices A

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