[Cite as In re Minnick, 2009-Ohio-5274.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              VAN WERT COUNTY




IN THE MATTER OF:
                                                         CASE NO. 15-09-06
        JACOB MINNICK,

ALLEGED JUVENILE TRAFFIC                                 OPINION
OFFENDER - APPELLANT.




               Appeal from Van Wert County Common Pleas Court
                               Juvenile Division
                           Trial Court No. 20900027

                                     Judgment Affirmed

                           Date of Decision:   October 5, 2009




APPEARANCES:

        Scott R. Gordon for Appellant

        Eva J. Yarger for Appellee
Case No. 15-09-06


SHAW, J.

      {¶1} Appellant, Jacob Minnick, appeals the April 16, 2009 judgment of

the Court of Common Pleas, Juvenile Division, of Van Wert County, Ohio,

adjudicating him a juvenile traffic offender for having committed the offense of

operating a motor vehicle while intoxicated in violation of R.C. 4511.19(B)(3).

Minnick asserts as error the March 20, 2009 judgment of the trial court overruling

his motion to suppress the results of the BAC Datamaster test.

      {¶2} The facts relevant to this appeal are as follows. On February 15,

2009, at 3:15 a.m., Sergeant Brad Wisener of the Van Wert County Sheriff’s

Department stopped a 1991 Honda four-door vehicle driven by Minnick for

having no illumination on his rear license plate. Upon approaching the driver’s

side of the vehicle, Sgt. Wisener detected a strong odor of alcohol coming from

the vehicle. He ordered the four occupants, including Minnick, to exit the vehicle.

Minnick and the owner of the vehicle, Matthew Brown, went to the rear of the

vehicle and showed the officer that the license plate light was working. However,

the plate was not illuminated because the light was obscured by mud.

      {¶3} Sgt. Wisener had Minnick sit in his patrol car while he ran

Minnick’s and the other occupants’ information to check for warrants and valid

licenses. During this time in the car, the officer detected a strong odor of alcohol

coming from Minnick and that his speech was slurred.             When asked about



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Case No. 15-09-06


drinking, Minnick stated that he had “sips of alcohol.” (Mtn. Hrg., 3/20/09, p. 7.)

After Sgt. Wisener completed his license and warrant checks, he had Minnick

perform field sobriety tests. Thereafter, Minnick was transported to the Ohio State

Highway Patrol office where he was administered a BAC Datamaster test at 5:03

a.m. Minnick’s BAC test result was .077.

       {¶4} Minnick was charged with two traffic offenses: driving a vehicle

under the influence in violation of R.C. 4511.19(B)(3) and a probationary license

violation for driving between the hours of midnight and 6:00 a.m. in violation of

R.C. 4507.071(B).    These charges were assigned Case Number 20900027. Sgt.

Wisener also charged Minnick with delinquency for underage consumption in

violation of R.C. 4301.69(E). This charge was assigned Case Number 20910028.

      {¶5} On March 4, 2009, counsel for Minnick filed a motion to suppress

various pieces of evidence in both cases, including the results of the BAC

Datamaster test. A hearing was held on this motion on March 20, 2009. At the

onset of this hearing, the trial court stated that the purpose of the hearing was to

address Minnick’s motion to suppress the evidence “and the reason basically set

forth in the Memorandum claiming that there’s no probable cause to stop.” (Mtn.

Hrg., 3/20/09, p. 1.) Both parties then presented the testimony of one witness

each. Sgt. Wisener testified on behalf of the State, and Minnick testified on his

own behalf.



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Case No. 15-09-06


       {¶6} At the conclusion of the evidence, counsel for Minnick was

permitted to present an argument in support of his motion. During this argument,

Minnick’s counsel requested that the court suppress the BAC Datamaster test

results because the State failed to present evidence establishing that the machine

was in proper working condition and that the administering officer was certified to

conduct such a test. After hearing the prosecution’s argument on the motion, the

trial court proceeded to find that Sgt. Wisener had sufficient grounds to stop

Minnick.    The court also concluded that the field sobriety tests should be

suppressed because the State failed to provide evidence that they were conducted

in strict compliance with the applicable standards. However, the court overruled

the request by Minnick’s counsel to suppress the results of the BAC Datamaster

due to non-compliance with the applicable standards because the court found that

this issue was not raised in Minnick’s motion.

       {¶7} On April 16, 2009, Minnick withdrew his previously tendered denial

of all three offenses and entered a no contest plea on all three offenses. The State

then read the facts into the record, and the court found Minnick to be a juvenile

traffic offender for the two traffic offenses and a delinquent for the underage

consumption offense.    Minnick was then fined, assessed court costs, and his

license was suspended for six months.




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Case No. 15-09-06


          {¶8} This appeal followed, and Minnick now asserts one assignment of

error.1

          THE TRIAL COURT ERRED IN FAILING TO SUPPRESS
          THE RESULTS OF A BAC DATAMASTER TEST EVEN
          THOUGH THE DEFENDANT CITED CONCERNS OVER
          MISSING   ELEMENTS    OF   THE    EVIDENTIARY
          FOUNDATION AND AFTER WHICH THE STATE FAILED
          TO   CARRY    ITS  AFFIRMATIVE    BURDEN   IN
          ESTABLISHING THAT THE TEST WAS ADMINISTERED
          WITHIN THE PRESCRIBED GUIDELINES.

          {¶9} An appellate court’s review of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71,

2003-Ohio-5372, at ¶ 8. We must accept the trial court’s findings of fact as true if

they are supported by competent and credible evidence.                            Id., citing State v.

Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. However, with respect to

the trial court’s findings of law, we must apply a de novo standard of review and

decide, “whether the facts satisfy the applicable legal standard.” Burnside, at ¶ 8,

citing State v. McNamara (1997), 124 Ohio App.3d 706, 710, 707 N.E.2d 539.

          {¶10} To challenge the admissibility of an alcohol test, “[t]he defendant

must first challenge the validity of the alcohol test by way of a pretrial motion to

suppress; failure to file such a motion ‘waives the requirement on the state to lay a



1
  In Case Number 20910028, underage consumption, Minnick was ordered to attend Project Choice, to pay
for this course, perform twelve hours of community service, and pay court costs. Minnick did not appeal
this adjudication of delinquency, and thus, we only address the issue of the BAC Datamaster as it relates to
the OVI charge.


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Case No. 15-09-06


foundation for the admissibility of the test results.’” Burnside, at ¶ 24, quoting

State v. French (1995), 72 Ohio St.3d 446, 451, 650 N.E.2d 887.

       The chemical test result is admissible at trial without the state’s
       demonstrating that the bodily substance was withdrawn within
       two hours of the time of the alleged violation, that the bodily
       substance was analyzed in accordance with methods approved
       by the Director of Health, and that the analysis was conducted
       by a qualified individual holding a permit issued by the Director
       of Health pursuant to R.C. 3701.143. (Defiance v. Kretz [1991],
       60 Ohio St.3d 1, 573 N.E.2d 32, approved; Cincinnati v. Sand
       [1975], 43 Ohio St.2d 79, 72 O.O.2d 44, 330 N.E.2d 908,
       modified.) This does not mean, however, that the defendant may
       not challenge the chemical test results at trial under the Rules of
       Evidence. Evidentiary objections challenging the competency,
       admissibility, relevancy, authenticity, and credibility of the
       chemical test results may still be raised.

French, 72 Ohio St.3d at 452, 650 N.E.2d 887. Only after the accused raises a

challenge to the validity of test results in a pretrial motion, does the state have the

burden to show that the test was properly administered. See Burnside, at ¶ 24.

       {¶11} Criminal Rule 47 requires that “[a] motion, other than one made

during trial or hearing, shall be in writing unless the court permits it to be made

orally. It shall state with particularity the grounds upon which it is made and shall

set forth the relief or order sought.” In keeping with this rule, the Ohio Supreme

Court has held that “the accused must state the motion’s legal and factual bases

with sufficient particularity to place the prosecutor and the court on notice of the

issues to be decided.” State v. Shindler (1994), 70 Ohio St.3d 54, syllabus, 636

N.E.2d 319.


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Case No. 15-09-06


       {¶12} While courts vary in their determinations as to what constitutes

“sufficient particularity,” at a minimum, an accused is required to identify some

section of the Ohio Administrative Code that is implicated and/or make some sort

of assertion that the State failed to follow the proper standards in administering the

breath test. See id. (holding that a virtual copy of the sample motion to suppress

contained in Ohio Driving Under the Influence Law (1990) 136-137, Section

11.16, a legal handbook, that listed numerous allegations of violations of the OAC

by the State and provided the cite to the implicated OAC section was stated with

sufficient particularity); State v. Yeaples, 180 Ohio App.3d 720, 907 N.E.2d 333,

2009-Ohio-184, at ¶ 14 (holding that a motion originally containing twenty alleged

violations of the OAC, narrowed into ten allegations at the suppression hearing,

that included the specific OAC section and sub-section at issue was stated with

sufficient particularity); Norwood v. Kahn, 1st Dist. Nos. C-060497, C-060498,

and C-060499, 2007-Ohio-2799 (finding that a motion containing a general

allegation of non-compliance by the State and a listing of applicable OAC sections

alleged to have been violated was stated with sufficient particularity).

       {¶13} In the case sub judice, Minnick’s motion states that he is moving

“for a suppression of the evidence obtained by the Van Wert County Sheriff’s

Department from the warrantless seizure of the Defendant[.]” The motion then

proceeds to list five particular items of evidence that he is requesting be



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Case No. 15-09-06


suppressed, including the results of the BAC Datamaster. Minnick also attached a

memorandum in support of his motion to suppress. The bulk of this motion

discussed the law surrounding the suppression of evidence flowing from an illegal

stop, detention, and/or arrest. The motion also alleged that the field sobriety tests

were not done in strict compliance with the applicable standards and were

inadmissible. In conclusion, Minnick’s motion reads: “Based upon the foregoing

the Defendant asserts that there was not sufficient evidence to warrant the

administration of the field sobriety tests, the portable breath test and the BAC

Datamaster test.”

       {¶14} The only discussion in his motion in regards to the administration of

the BAC Datamaster, other than stating that it was given and showed a result of

.077, was Minnick’s summary of the state of the law:

       Before the results of an alcohol test given a defendant are
       admissible in evidence, 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 the two hour testing limitation of
       R.C. 4511.19(D) [internal citations omitted].

The motion contained no allegation that the State violated any one of these

requirements nor was there any citation to a particular OAC section that was

alleged to have been violated. Moreover, Minnick never requested in his motion

that the results of the BAC Datamaster be suppressed because of non-compliance



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Case No. 15-09-06


with the OAC. Rather, Minnick simply made a blanket statement of what the law

required the State to prove in order to admit the results in evidence and then

requested that the BAC Datamaster results be suppressed because there was not

sufficient evidence to warrant Sgt. Wisener to administer this test.

       {¶15} Having failed to even allege that the administration of the BAC

Datamaster was improperly conducted, the prosecution and the trial court were not

placed on notice of such a challenge.          To the contrary, Minnick’s motion

challenged the stop of the vehicle he was driving and any evidence resulting from

this illegal stop, the manner in which the field sobriety tests were administered,

and whether there was sufficient evidence to administer the subsequent tests.

Thus, the prosecution and the trial court had some notice as to these issues but

nothing which put either on notice of alleged non-compliance with the OAC

standards for the administration and analysis of the BAC Datamaster.

       {¶16} While there is no dispute that the only evidence presented as to the

BAC Datamaster test was that Minnick was stopped at 3:15 a.m., the test was

administered to him at 5:03 a.m. at a Highway Patrol post, and the result showed a

.077 breath alcohol content, the State did not have a burden to show substantial

compliance with the standards for the proper administration and analysis of the

BAC Datamaster due to Minnick’s failure to provide sufficient notice that he was

challenging the administration of this test for non-compliance. As such, the trial



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Case No. 15-09-06


court did not err in overruling Minnick’s oral request to suppress the results of the

BAC Datamaster at the conclusion of the presentation of evidence. To hold

otherwise thwarts the purpose of Crim.R. 12(C) and 47 to apprise the State and

trial court of the grounds for the motion so that both may adequately prepare for

the issues and allot the necessary time with which to conduct a hearing.

       {¶17} For these reasons, the sole assignment of error is overruled, and the

judgment of the Common Pleas Court, Juvenile Division, of Van Wert County,

Ohio, is affirmed.

                                                                Judgment Affirmed

WILLIAMOWSKI and ROGERS, J.J., concur.

/jlr




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