ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THE DEFENDANT'S MOTION TO SUPPRESS THE BLOOD ALCOHOL RESULTS TO BE A PRELIMINARY EVIDENTIARY MOTION AND RULED AS IF SAID MOTION WAS A MOTION IN LIMINE RATHER THAN A MOTION TO SUPPRESS.

II. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE BLOOD ALCOHOL TEST RESULTS BECAUSE THE OHIO DEPARTMENT OF HEALTH WITNESS TESTIFIED TO MATTERS THAT ARE HEARSAY AND DO NOT QUALIFY UNDER ANY RECOGNIZED EXCEPTION TO THE HEARSAY RULE.

Appellant moved to suppress the BAC test results, arguing the calibration solution certificate supporting the batch used to calibrate the breathalyzer prior to the test was not accurate. The trial court treated the motion as motion in limine, rather than a motion to suppress. Thereafter, the court overruled appellant's motion.

In City of Defiance v. Kretz (1991), 60 Ohio St.3d 1, the Ohio Supreme Court held: a motion to suppress is a proper pre-trial procedure for challenging the breathalyzer test results when the defendant is charged with a violation of R.C. 4511.19(A)(3). A plea of no contest does not waive a defendant's appeal from an adverse ruling on the motion. In Kretz, the Supreme Court reversed the holding of the Court of Appeals of Defiance County, which held a motion to suppress was inappropriate, and treated the motion as a motion in limine. The Supreme Court cited its earlier holding in State v. Davidson (1985), 17 Ohio St.3d 132, where the Supreme Court found a pre-trial motion labeled "motion in limine" was the functional equivalent of a motion to suppress if it renders the State's proof with respect to the pending charge so weak in its entirety that the State has lost any reasonable possibility of effectively prosecuting the defendant. A successful pre-trial challenge to a breathalyzer test destroys the State's case under R.C. 4511.19(A)(3), while an unsuccessful challenge destroys the defense to the charge. For this reason, the Supreme Court held a pre-trial motion to suppress was the appropriate vehicle for challenging the breathalyzer evidence offered in support of a prosecution for violation of R.C. 4511.19(A)(3).

In a strong dissent, Justice Resnick noted a motion to suppress should challenge the means by which the evidence is acquired, not the competency of the evidence, Kretz at 5.

The State points out the court conducted a discussion with both counsel as to whether the motion was a motion in limine or a motion to suppress. Defense counsel conceded on the record it could be treated as a motion in limine, and asserted the defense was prepared to proceed in that mode. Appellant did not object to the motion being treated as a motion in limine. Further, the State argues no prejudice occurred because the only witness was Dr. Sutheimer and the court would have overruled the motion regardless of the form in which it heard the motion. The State also points out the nature of the hearing does not affect the case law or arguments made by either party.

We find, in obedience to Kretz, supra,a motion to suppress is the appropriate vehicle to challenge a BAC test. However, we agree with the State the ultimate outcome of this case is unaffected, and for this reason, the error was not prejudicial. Appellant's failure to object also waives any error.

The first assignment of error is overruled.

In State v. Sebach (September 25, 1998), Knox Appellate No. 97CA24, unreported, this court found where the Department of Health qualifies a batch of calibration solution using its own procedure, and affirms the testing samples to be all within the manufacturer's target concentration value, it is unnecessary to review the manufacturer's procedures, and the Health Department's permissible five percent deviation standard is not per se unreasonable or unconscionable.

In light of our decision in Sebach, the alleged hearsay is irrelevant to the case at bar.

We find the trial court did not err in finding the blood-alcohol test results were admissible in the State's case in chief.

The second assignment of error is overruled.

For the foregoing reasons, the judgment of the Municipal of Coshocton County, Ohio, is affirmed, and the cause is remanded to that court for execution of sentence.

By Gwin, J., Farmer, P.J., concur, and Hoffman, J., concur, separately.

I concur in the majority's decision to overrule appellant's first assignment of error. However, I would do so for different reasons.

The trial court discussed with both counsel whether the motion was liminal or one of suppression. Defense counsel stated, "It could be a motion in limine, Judge. That is possible", and informed the court he (defense counsel) "* * * had assumed it was our burden." (1-13-98 Hearing Transcript, p. 5-6). Appellant never objected to the manner the hearing was to proceed and, as demonstrated supra, acquiesced in the manner it did proceed. Accordingly, I would overrule this assignment of error on the basis of waiver and/or the invited error doctrine.

Unlike the majority, I agree with the trial court appellant's challenge to the breathalyzer was not the proper subject of a motion to suppress. Unlike City of Defiance v. Kretz (1991)60 Ohio St.3d 1, appellant is not challenging the test result on the grounds of failure to comply with the Ohio Department of Health Regulations. Rather, appellant challenges the Ohio Department of Health's policy of accepting the target values established by the manufacturer of the calibration solution. I agree with the trial court such challenge goes to the credibility of the evidence, not its admissibility. As such, it is the proper subject of a motion in limine, but not a motion to suppress.

I further concur in the majority's decision to overrule appellant's second assignment of error. Unlike the majority, I do not find our decision in Sebach renders the alleged hearsay in this case irrelevant, but rather, assuming, arguendo, its admission was error, such error was not prejudicial based upon our decision in Sebach.

I would overrule appellant's second assignment of error on the basis of waiver as appellant did not object to the testimony.

JUDGE WILLIAM B. HOFFMAN.

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Municipal Court of Coshocton County, Ohio, is affirmed, and the cause is remanded to that court for execution of sentence. Costs to appellant.