State v. Ricciardi , 135 Ohio App. 3d 155 ( 1999 )

I respectfully dissent. The Ohio legislature significantly broadened the scope and nature of orders subject to immediate review by its amendment to R.C. 2505.02. The additions to the statute are capitalized in the following statement of the law:

"(A) AS USED IN THIS SECTION:

"(1) `SUBSTANTIAL RIGHT' MEANS A RIGHT THAT THE UNITED STATES CONSTITUTION, THE OHIO CONSTITUTION, A STATUTE, THE COMMON LAW, OR A RULE OF PROCEDURE ENTITLES A PERSON TO ENFORCE OR PROTECT.

"(2) `SPECIAL PROCEEDING' MEANS AN ACTION OR PROCEEDING THAT IS SPECIALLY CREATED BY STATUTE AND THAT PRIOR TO 1853 WAS NOT DENOTED AS AN ACTION AT LAW OR A SUIT IN EQUITY.

"(3) `PROVISIONAL REMEDY MEANS A PROCEEDING ANCILLARY TO AN ACTION, INCLUDING, BUT NOT LIMITED TO, A PROCEEDING FOR A PRELIMINARY INJUNCTION, ATTACHMENT, DISCOVERY OF PRIVILEGED MATTER, OR SUPPRESSION OF EVIDENCE.

"(B) AN ORDER IS A FINAL ORDER THAT MAY BE REVIEWED, AFFIRMED, MODIFIED, OR REVERSED WITH OR WITHOUT RETRIAL, WHEN IT IS ONE OF THE FOLLOWING:

"(1) AN order that affects a substantial right in an action THAT in effect determines the action and prevents a judgment.

"(2) AN order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment.

"(3) AN order that vacates or sets aside a judgment or grants a new trial.

"(4) AN ORDER THAT GRANTS OR DENIES A PROVISIONAL REMEDY AND TO WHICH BOTH OF THE FOLLOWING APPLY:

"(a) THE ORDER IN EFFECT DETERMINES THE ACTION WITH RESPECT TO THE PROVISIONAL REMEDY AND PREVENTS A JUDGMENT IN THE ACTION IN FAVOR OF THE APPEALING PARTY WITH RESPECT TO THE PROVISIONAL REMEDY.

"(b) THE APPEALING PARTY WOULD NOT BE AFFORDED A MEANINGFUL OR EFFECTIVE REMEDY BY AN APPEAL FOLLOWING FINAL JUDGMENT AS TO ALL PROCEEDINGS, ISSUES, CLAIMS, AND PARTIES IN THE ACTION.

"(5) AN ORDER THAT DETERMINES THAT AN ACTION MAY OR MAY NOT BE MAINTAINED AS A CLASS ACTION.

"(C) When a court issues an order that vacates or sets aside a judgment or grants a new trial, the court, upon the request of either party, shall state in the order the grounds upon which the new trial is granted or the judgment vacated or set aside.

"(D) THIS SECTION APPLIES TO AND GOVERNS ANY ACTION, INCLUDING AN APPEAL THAT IS PENDING IN ANY COURT ON THE EFFECTIVE DATE OF THIS AMENDMENT AND ALL CLAIMS FILED OR ACTIONS COMMENCED ON OR AFTER THE EFFECTIVE DATE OF THIS AMENDMENT. NOTWITHSTANDING ANY PROVISION OF ANY PRIOR STATUTE OR RULE OF LAW OF THIS STATE."

Obviously, the legislature intended sweeping changes to the law by its inclusion of judgment on provisional remedies within the scope of appealable orders. As the majority points out, under prior law the overruling of a motion to suppress evidence was not a final appealable order. Why then would the legislature specifically include a motion to suppress evidence as a provisional remedy if it did not want to modify existing law? To rule contrary to the position that such order is immediately appealable, we would have to hold that notwithstanding the plain meaning of the statute, the General Assembly intended to promulgate a redundant restatement of existing law. While the majority may draw such conclusion, I believe that the well-intentioned legislature was seeking to preserve and protect substantial rights accorded under the Constitution, by statute and administrative regulations, expanding the range of orders subject to immediate review.

Secondly, admissibility of the breathalyzer test results is a certainty as there can be no further challenge to the result at trial. There is a clear distinction between rulings on motions in limine and motions to suppress evidence. Once a motion to suppress is denied, that evidence is deemed admissible. As discussed in Defiance v. Kretz (1991), 60 Ohio St.3d 1, 4, 573 N.E.2d 32,35: "During the pretrial hearing on a motion to suppress breathalyzer test results, the court hears all the relevant evidence on the issue of admissibility. As stated, admissibility of the results turns on substantial compliance with ODH regulations. After ruling on the motion, the only issue left for determination at trial is whether the defendant was operating a vehicle in the state of Ohio-an issue irrelevant to the test's admissibility. Therefore, the trial court's ruling on the defendants' motions in the cases sub judice was not a liminal motion.

"A motion in limine is tentative and precautionary in nature, reflecting the court's anticipatory treatment of an evidentiary issue at trial. In deciding such motions, the trial court is at liberty to change its ruling on the disputed evidence in its actual context at trial. Finality does not attach when the motion is granted. State v. Grubb (1986), 28 Ohio St.3d 199, 201-202, 28 OBR 285, 288, 503 N.E.2d 142,145.

"The court of appeals reasoned that a ruling on a preliminary motion, though labeled a motion to suppress, could not be appealed (absent a final ruling at trial) unless the motion presented a constitutional challenge. However, the traditional distinction between a motion to suppress based upon a constitutional challenge and a motion in limine does not work as a bright-line rule where the motion to suppress is directed to breathalyzer test results based on a failure to comply with ODH regulations.

"In State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277,477 N.E.2d 1141, we recognized that a pretrial motion labeled in limine was the functional equivalent of a motion to suppress where it `renders the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.' Id. at syllabus. A pretrial challenge to a breathalyzer test, if granted, destroys the state's case under R.C. 4511.19(A)(3), and the state is permitted to appeal pursuant to R.C. 2945.67 and Crim.R. 12(J).

"Similarly, the defense to a charge under R.C. 4511.19(A)(3) is destroyed where the breathalyzer test result is declared valid after a pretrial challenge. If the defendant pleads no contest after such a ruling, judicial economy will be served by appeal of the pivotal issue rather than forcing the defendant through a futile trial. The defendant must, of course, enter a plea of no contest and a judgment must be rendered or there would be no final appealable order."

The Kretz court recognized that by law the state could appeal the granting of a motion to suppress if the ruling destroyed the state's case. The Kretz court also recognized that the defense to a charge under R.C. 4511.19(A)(3) is destroyed where the motion to suppress is denied. We must assume that the legislature was aware of this existing law when it revised R.C. 2505.02 and intended as a matter of judicial economy to allow a defendant an immediate appeal under the facts of this case, where he is charged with a violation of R.C. 4511.19(A)(3). As the state may appeal a decision rendering its case so weak in its entirety that all effective prosecution has been destroyed, a fair reading of the statute leads to a reasonable conclusion that the legislature likewise has now entitled a defendant to appeal when the defense to a charge of R.C. 4511.19(A)(3) has been destroyed, without first entering a no contest plea to the charge.

The majority is of the opinion that an appellant may obtain meaningful and effective remedy by appeal after conviction, even if his entire mandated term of imprisonment has been served. They continue by listing other consequences of felony conviction, including incompetence to be an elector or juror or hold an office of honor, trust or profit. Additionally, it cannot be argued that the stigma of conviction injuriously affects efforts at gainful employment.

In my view, the prospect of an unlawful incarceration is itself sufficient cause to warrant an immediate review of the manner in which the test result was obtained. The legislature has defined a "substantial right" under the code as "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." (Emphasis added.) R.C.2505.02(A)(1). The Ohio Department of Health has established rules of procedure for administering breathalyzer tests. Appellant is attempting to protect his right to assure that the rules of procedure were followed in the administration of his test. The legislature has accorded him that as a substantial right which is subject to judicial scrutiny. I would also accord him that right by an immediate review of the breathalyzer test.

The litany of adverse consequences attendant to a felony conviction is all the more reason to assure that a conviction is properly and legally obtained. On a balance between the harm to befall a person illegally convicted on inadmissible evidence and the inconvenience to an appellate court to immediately review the issue of admissibility, the balance should always weigh in favor of protecting a substantial right and allow the review. Finally, judicial economy would be served under the facts of this specific case were the court to immediately review the ruling on admissibility of the test results, as those very results form the basis of a charge against appellant. There is a term of mandatory local incarceration for sixty consecutive days on the underlying charge in accordance with R.C. 4511.99(A)(4)(a). On a balance between this court undertaking to immediately review the issue of admissibility and the likelihood that appellant would have completed his term of mandatory incarceration and forfeited his other rights of citizenship during that period, I would rule that the legislature empowered this court with authority to conduct an immediate review of such issue by its comprehensive amendment to R.C. 2505.02.

For the foregoing reasons I respectfully dissent to the opinion of the majority and reserve such ruling to the specific facts of this case.