[Cite as State v. Blair,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-12-14

v.

MEAGAN BLAIR, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion Municipal Court Trial Court No. TRC 1106722

Judgment Affirmed

Date of Decision: February 25, 2013

APPEARANCES:

J.C. Ratliff and Jeff Ratliff for Appellant

Steven E. Chaffin for Appellee Case No. 9-12-14

SHAW, J.

{¶1} Defendant-appellant, Meagan Blair (“Blair”), appeals the March 8,

2012 judgment of the Marion Municipal Court journalizing her conviction by a

jury for operation of a vehicle while under the influence (“OVI”), in violation of

R.C. 4511.19(A)(1)(a), and operation of a vehicle with a prohibited alcohol

concentration in violation of R.C. 4511.19(A)(1)(d), and suspending her driver’s

license for one year.

{¶2} On September 5, 2011, at approximately 2:30 a.m., Trooper Tawanna

Young was on patrol when she observed the 2004 Honda driven by Blair and

noticed that the rear license plate light on the vehicle was not illuminated.

Trooper Young followed Blair and signaled for her to pull over her vehicle. Blair

was travelling with a friend in the passenger seat.

{¶3} Trooper Young approached Blair, informed her of the reason for the

stop, and asked Blair for her driver’s license, registration, and proof of insurance.

Trooper Young asked Blair to exit the vehicle and directed her to the back of the

car so that she could show Blair that her license plate light was inoperable. Blair’s

car was already turned off, so Trooper Young requested Blair start her car. Blair

indicated that the passenger had the keys, however the passenger was unable to

locate the keys to start the car.

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{¶4} Trooper Young asked Blair to sit in her cruiser while she checked

Blair’s driving record. Blair complied with the request, was patted down, and then

sat in the front seat of the cruiser. At this time, Blair explained to Trooper Young

that she had been asleep for almost two hours when she received a phone call from

the passenger at 2:00 a.m. requesting Blair pick her up from a bar in Marion.

During this conversation, Trooper Young observed a strong odor of alcoholic

beverage emanating from Blair’s breath. Trooper Young asked Blair if she had

anything to drink that night. Blair admitted to consuming two drinks between 10

p.m. and midnight.

{¶5} Trooper Young then proceeded to conduct a Horizontal Gaze

Nystagmus test (“HGN”) on Blair and observed six out of six clues indicating

Blair to be impaired. Next, Trooper Young had Blair recite the alphabet starting at

the letter “D” and ending at the letter “W.” Blair was unable to complete this task

due to skipping the letters between “P” and “W.” Trooper Young then conducted

additional field sobriety tests. Specifically, Trooper Young asked Blair to

complete the walk-and-turn test and observed two out of eight clues indicating

impairment. Trooper Young also had Blair complete the one-leg-stand test, which

Blair completed correctly with no clues of impairment. Based on the strong odor

of alcoholic beverage emanating from Blair’s breath, her admission to consuming

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two alcoholic beverages, and her performance on the field sobriety tests, Trooper

Young determined Blair to be impaired and placed her under arrest for OVI.

{¶6} After being transported to the Multi-County Jail, Blair agreed to

submit to a chemical test measuring the concentration of alcohol in her breath.

Trooper Young read Blair the BMV form 2255 and administered the test. The

first test indicated that an invalid sample was obtained and failed to produce a

reading. Sergeant Hunter, Trooper Young’s supervisor who was also present at

the jail, administered the second test to Blair at Trooper Young’s request, after the

requisite twenty-minute observation period. This time a valid sample was

obtained and the test produced a result of .106 of one gram by weight of alcohol

per two hundred ten liters of breath, indicating that the concentration of alcohol

detected in Blair’s breath exceeded the legal limit.

{¶7} Blair was charged with OVI, in violation of R.C. 4511.19(A)(1)(a),

operation of a vehicle with a prohibited alcohol concentration, in violation of R.C.

4511.19(A)(1)(d), failure to wear a seat belt, in violation of R.C. 4513.263(B)(1),

and failure to illuminate the rear license plate, in violation of R.C. 4513.05. Blair

entered a plea of not guilty to the charges.

{¶8} On October 14, 2011, Blair filed a motion to suppress alleging that

Trooper Young lacked probable cause and/or reasonable, articulable suspicion to

stop her for a license plate light violation, that Trooper Young did not acquire

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probable cause and/or reasonable, articulable suspicion to further detain her to

administer the field sobriety tests, and that Trooper Young lacked probable cause

to subsequently arrest her for OVI. Blair also claimed that the field sobriety tests

were not conducted in accordance with NHTSA standards, and challenged the

results of the breathalyzer, alleging the test was not administered in accordance

with the Ohio Department of Health Rules and Regulations.

{¶9} On December 22, 2011, a hearing was held on Blair’s motion to

suppress. The video of the stop was introduced as evidence as well as the

testimony of Trooper Young, Sergeant Hunter, and Blair. On December 23, 2011,

the trial court issued a judgment entry overruling the motion. The jury trial was

set for March 7, 2012.

{¶10} On March 6, 2012, the day before trial, Blair filed a subpoena duces

tecum requesting Trooper Young produce for use at trial copies of her call log and

copies of her computer log from the date of Blair’s arrest. Blair also filed a

subpoena duces tecum requesting the Keeper of Records and/or Office Manager at

Ralls Automotive to produce for the use at trial the invoice reflecting service

performed on Blair’s car the day after her arrest. The prosecution subsequently

filed a motion to quash. The same day, the trial court granted the prosecution’s

motion finding compliance with the subpoenas to be unreasonable and oppressive.

See Crim.R. 17(C).

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{¶11} The next day, the jury trial commenced as scheduled and the jury

heard evidence pertaining to two counts: OVI and operating a vehicle with a

prohibited alcohol concentration. Trooper Young and Sergeant Hunter testified

for the prosecution and Blair testified in her defense. The video of the stop was

also admitted for the jury to review. The jury found Blair guilty on both counts

before it and the prosecution elected for Blair to be sentenced on the OVI

conviction. The prosecution subsequently dismissed the seat belt violation. The

trial court found Blair not guilty of the rear license plate light violation.

{¶12} On March 8, 2012, the trial court sentenced Blair to ninety days in

jail with eighty-four days suspended and imposed a fine of $1,000 with $100

suspended. The trial court also suspended Blair’s driver’s license for one year

beginning on March 8, 2012 and expiring March 8, 2013.

{¶13} Blair now appeals, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SUPPRESS AS (1) THE STOP WAS NOT SUPPORTED BY PROBABLE CAUSE OR A REASONABLE AND ARTICULABLE SUSPICION THE DEFENDANT HAD COMMITTED A TRAFFIC VIOLATION; (2) THE OFFICER DID NOT POSSESS A REASONABLE AND ARTICULABLE SUSPICION JUSTIFYING THE CONTINUED DETENTION OF THE DEFENDANT BEYOND THE SCOPE OF THE INITIAL STOP; (3) THE OFFICER DID NOT POSSESS A REASONABLE AND ARTICULABLE SUSPICION JUSTIFYING THE ADMINISTRATION OF THE FIELD SOBRIETY TESTS; (4) THE FIELD SOBRIETY TESTS AND

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CHEMICAL TESTS WERE NOT DONE IN SUBSTANTIAL COMPLIANCE WITH NHTSA OR ITS EQUIVALENT AND THE OHIO DEPARTMENT OF HEALTH RULES AND REGULATIONS; AND (5) THE OFFICER DID NOT POSSESS PROBABLE CAUSE TO ARREST THE DEFENDANT.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT VIOLATED THE DEFENDANT’S CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AND EVIDENCE AGAINST HER, HER RIGHT TO COMPULSORY PROCESS, HER RIGHT TO PRESENT A MEANINGFUL DEFENSE, HER RIGHT TO DUE PROCESS OF LAW, AND HER RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT VIOLATED DEFENDANT’S RIGHT AGAINST DOUBLE JEOPARDY WHEN THE TRIAL COURT SUSPENDED HER OPERATOR’S LICENSE FOR ONE (1) YEAR WITHOUT CREDITING DEFENDANT FOR THE ALS SUSPENSION [SIC] IMPOSED ON HER AT THE TIME OF HER ARREST.

First Assignment of Error

{¶14} In her first assignment of error, Blair argues that the trial court erred

in overruling her motion to suppress. Blair asserts five specific grounds to support

her contention.

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{¶15} Initially, we note that appellate review of a decision on a motion to

suppress evidence presents a mixed question of law and fact. State v. Bressler, 3d

Dist. No. 15–05–13, 2006–Ohio–611. At a suppression hearing, the trial court

assumes the role of trier of fact and is in the best position to resolve factual

questions and evaluate the credibility of witnesses. State v. Carter,

(1995). When reviewing a trial court’s decision on a motion to suppress,

an appellate court must uphold the trial court’s findings of fact if they are

supported by competent, credible evidence. State v. Dunlap,

(1995). We must defer to “the trial court’s findings of fact and rely on its

ability to evaluate the credibility of the witnesses,” and then independently review

whether the trial court applied the correct legal standard. State v. Anderson,

(4th Dist. 1995).

{¶16} At a suppression hearing, the State bears the burden of establishing

that a warrantless search and seizure falls within one of the exceptions to the

warrant requirement, Xenia v. Wallace,

(1988), paragraph two

of the syllabus; State v. Kessler,

(1978), and that it meets

Fourth Amendment standards of reasonableness. Maumee v. Weisner,

(1999).

{¶17} Blair first contends that the trial court erred in denying her motion to

suppress because Trooper Young lacked probable cause and/or reasonable,

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articulable suspicion justifying the stop of her vehicle. At the suppression hearing,

Trooper Young testified that she effectuated the traffic stop because the rear

license plate area of Blair’s vehicle was not illuminated, which is a traffic

violation.

{¶18} The Supreme Court of Ohio has held that “[w]here a police officer

stops a vehicle based on probable cause that a traffic violation has occurred or was

occurring, the stop is not unreasonable under the Fourth Amendment to the United

States Constitution even if the officer had some ulterior motive for making the

stop * * *.” City of Dayton v. Erickson,

, syllabus (1996),

following United States v. Ferguson,

(6th Cir. 1993).

{¶19} Trooper Young charged Blair with a traffic violation, in violation of

R.C. 4513.05, which specifically provides as follows:

(A) Every motor vehicle, trackless trolley, trailer, semitrailer, pole trailer, or vehicle which is being drawn at the end of a train of vehicles shall be equipped with at least one tail light mounted on the rear which, when lighted, shall emit a red light visible from a distance of five hundred feet to the rear, provided that in the case of a train of vehicles only the tail light on the rearmost vehicle need be visible from the distance specified.

Either a tail light or a separate light shall be so constructed and placed as to illuminate with a white light the rear registration plate, when such registration plate is required, and render it legible from a distance of fifty feet to the rear. Any tail light, together with any separate light for illuminating the rear registration plate, shall be so wired as to be lighted whenever the headlights or auxiliary driving lights are lighted, except where

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separate lighting systems are provided for trailers for the purpose of illuminating such registration plate.

(B) Whoever violates this section is guilty of a minor misdemeanor.

{¶20} On appeal, Blair contends that the video recorded by the dashboard

camera in Trooper Young’s cruiser demonstrates that Blair’s rear license plate was

“visibly illuminated” and therefore did not give Trooper Young a basis to make

the stop. (Blair’s Brief at 8). This video evidence was played during the

suppression hearing and was admitted as evidence for the trial court’s review. Our

review of this evidence reveals that it is not discernible from the video whether or

not Blair’s license plate was “visibly illuminated” prior to Trooper Young

effectuating the stop. Therefore, the video does not unequivocally demonstrate

that Blair’s rear license plate was illuminated in compliance with R.C. 4513.05 as

Blair contends.

{¶21} On the contrary, at the suppression hearing, Trooper Young testified

that she was approximately a block away from Blair’s vehicle when she first

observed that Blair’s rear license plate was not illuminated and then made the

decision to follow Blair. Trooper Young further explained that she had a clear and

unobstructed view of Blair’s vehicle and had “no doubt” in her mind that the light

was out. (Supp. Hrg. at 32). Trooper Young testified that she specifically

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conducted the traffic stop based on her observation that the rear license plate of

Blair’s vehicle was not illuminated.

{¶22} Based on the evidence presented at the suppression hearing, we find

that the factual determination by the trial court that Blair’s rear license plate was

not illuminated prior to the stop was supported by competent, credible evidence.

Accordingly, we find no error with the determination by the trial court that

Trooper Young possessed both probable cause and/or reasonable, articulable

suspicion to stop Blair on the basis that a traffic violation had occurred.

{¶23} Next, in her second and third grounds for contending the trial court

erred in overruling her motion to suppress, Blair argues that her continued

detention exceeded the scope and duration of the stop, and that Trooper Young did

not have reasonable, articulable suspicion to conduct the field sobriety tests. The

prosecution contends that Trooper Young had reasonable, articulable suspicion

that Blair was engaged in criminal activity—i.e., OVI—that would justify her

continued detention and the administration of the field sobriety tests.

{¶24} When conducting a stop of a motor vehicle for a traffic violation, an

“officer may detain an automobile for a time sufficient to investigate the

reasonable, articulable suspicion for which the vehicle was initially stopped.”

State v. Smith,

(1st Dist. 1996). However, the duration

of the stop “is limited to ‘effectuate the purpose for which the initial stop was

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made.’ ”

quoting State v. Venham,

(4th Dist. 1994),

citing United States v. Brignoni–Ponce,

(1975); State v. Chatton,

(1994). “Thus, when detaining a motorist for a traffic

violation, an officer may delay the motorist for a time period sufficient to issue a

ticket or a warning.” Smith at 285, citing State v. Keathley,

(2d Dist. 1998). This time period also includes the period of time sufficient to run

a computer check on the driver’s license, registration, and vehicle plates. See

Delaware v. Prouse,

(1979).

{¶25} The detention of a stopped driver may continue beyond the time

frame necessary to conduct the stop for purposes of the traffic violation when

“additional facts are encountered that give rise to a reasonable, articulable

suspicion [of criminal activity] beyond that which prompted the initial stop[.]”

, citing State v. Myers,

(2d Dist. 1990);

. Reasonable articulable suspicion exists when there are “ ‘specific

and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant the intrusion.’ ” State v. Stephenson, 3d Dist. No. 14-04-

08,

, quoting State v. Bobo,

(1988).

{¶26} At the suppression hearing, Trooper Young testified that when she

initially approached Blair’s vehicle, she detected an odor of alcoholic beverage but

could not pinpoint whether the odor was coming from Blair or the passenger.

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After Blair was unable to find her keys to turn on the vehicle, Trooper Young

asked Blair to sit in the front seat of her cruiser while she ran a computer check of

Blair’s driving record. Trooper Young explained that she asked Blair to sit in the

cruiser so that she could ascertain whether the odor of alcoholic beverage she

initially smelled was coming from Blair or the passenger. Trooper Young testified

that Blair willingly complied with the request and was not under arrest at this

point. The video of the stop corroborates Trooper Young’s testimony in this

regard. Moreover, Trooper Young testified that Blair would not have had to sit in

the cruiser if she objected. 1

{¶27} Trooper Young testified that while she was running a check of

Blair’s driving record in the cruiser, she detected a strong odor of alcoholic

beverage on Blair’s breath. See State v. Marshall, 2d Dist. No. 2001CA35, 2001-

Ohio-7081 (holding that a strong odor of alcohol alone is sufficient to provide an

officer with reasonable suspicion of criminal behavior). Trooper Young testified

that the strong odor of alcoholic beverage coupled with Blair’s admission to

consuming alcohol earlier that night led her to make the decision to administer the

1 On appeal, Blair cites State v. Lozada,

,

to claim that Trooper Young’s pat down of her for weapons prior to sitting in the cruiser violated her Fourth Amendment rights. In Lozada, the Supreme Court held that “that during a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer.” However, in this case, Trooper Young testified that one of the reasons she asked Blair to sit in the cruiser was to discern whether the odor of alcoholic beverage she smelled at the inception of the stop came from Blair or the passenger. Thus, Trooper Young’s detention of Blair in her cruiser was not solely for officer convenience as in Lozada. Moreover, Blair failed to raise this issue regarding the pat down at the motion to suppress hearing, so even assuming arguendo that the pat down was improper the issue is now waived.

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HGN test on Blair. After Blair’s performance of the HGN test indicated six out of

six clues of impairment, Trooper Young proceeded to administer the additional

field sobriety tests of the walk-and-turn and one-leg-stand tests.

{¶28} The trial court noted on the record that the following facts

contributed to its decision to find that Trooper Young had acquired the requisite

reasonable, articulable suspicion to prolong the initial stop for a traffic violation in

order to further detain Blair for investigatory purposes to administer the field

sobriety tests.

There was reasonable articulable suspicion to detain and further investigate based on the odor coming from the car. Then there was an odor noted when the driver was separated from the car and its passenger. Thereafter there was an admission of alcohol use. Also included in the totality of the circumstances was the loss of the keys and the inability to turn the car on to look at the license plate. This also includes the time of day.

(Hrg. Dec. 22, 2012 at 138-39).

{¶29} Based on evidence in the record, we conclude that Trooper Young

encountered additional facts to give rise to a reasonable, articulable suspicion of

criminal activity beyond that which prompted the initial stop. We further

conclude that Trooper Young’s reasonable, articulable suspicion that Blair was

driving while impaired justified the prolonged detention to administer the field

sobriety tests. Accordingly, we find no error with the trial court’s decision to

overrule Blair’s motion to suppress on this basis.

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{¶30} As the final two grounds for contending that the trial court erred in

overruling her motion to suppress, Blair argues that the field sobriety tests and the

chemical breath test were not administered in substantial compliance with the

applicable guidelines, and therefore the results from these tests should have been

suppressed. Blair further contends that without the field sobriety test results

Trooper Young did not possess probable cause to arrest her.

{¶31} In order for the results of field sobriety tests to be admissible, the

state is not required to show strict compliance with testing standards, but must

instead demonstrate that the officer substantially complied with NHTSA

standards. R.C. 4511.19(D)(4)(b); State v. Clark, 12th Dist. No. CA2009-10-039,

, ¶ 11. “A determination of whether the facts satisfy the

substantial compliance standard is made on a case-by-case basis.” State v. Fink,

12th Dist. Nos. CA2008-10-118, CA2008-10-119,

, ¶ 26. The

state may demonstrate what the NHTSA standards are through competent

testimony and/or by introducing the applicable portions of the NHTSA manual.

State v. Boczar,

-Ohio-1251, at ¶ 28.

{¶32} At the suppression hearing and on appeal, Blair does not identify any

specific error with Trooper Young’s administration of the field sobriety tests, in

light of NHTSA or other applicable guidelines, but nevertheless argues

suppression of the test results is warranted. However, Trooper Young’s testimony

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indicates that she performed the field sobriety tests in accordance with the

appropriate standards. In particular, Trooper Young testified that she received

NHTSA and ADAP training and testified to her training regarding the method of

administration and the clues she must observe while conducting the tests.

{¶33} Even assuming arguendo that we find that Trooper Young did not

substantially comply with NHTSA or other applicable standards—which would

require the results of the tests to be excluded—her testimony regarding the Blair’s

performance on nonscientific field sobriety tests is admissible under Evid.R. 701

and can support a finding of probable cause to arrest under the totality of the

circumstances analysis. See State v. Schmitt,

,

, ¶

14-15. Notwithstanding this fact, we find no error in the trial court’s conclusion

that the prosecution met its burden in demonstrating that Trooper Young’s

administration of the field sobriety tests substantially complied with NHTSA

standards. Furthermore, we also conclude that the trial court did not err in

determining that Trooper Young acquired the requisite probable cause to arrest

Blair for OVI.

{¶34} Next, Blair challenges the admissibility of the results from the breath

analysis test and asserts that the prosecution failed to demonstrate the test was

conducted in substantial compliance with the regulations prescribed by the

Director of the Ohio Department of Health.

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{¶35} In seeking to suppress the results of a breath analysis test, the

defendant must set forth an adequate basis for the motion. State v. Shindler,

,

. The motion must state the “ * * * legal and

factual bases with sufficient particularity to place the prosecutor and court on

notice as to the issues contested.” Id; Crim.R. 47. Once an adequate basis for the

motion has been established, the prosecution then bears the burden of proof to

demonstrate substantial compliance with the Ohio Department of Health

regulations. Xenia v. Wallace,

(1988). If the prosecution

demonstrates substantial compliance, the burden of proof then shifts to the

defendant to overcome the presumption of admissibility and demonstrate that he

or she was prejudiced by anything less than strict compliance. State v. Burnside,

100 Ohio St.3d at 157.

{¶36} The extent of the prosecution’s burden to show substantial

compliance varies with the degree of specificity of the violation alleged by the

defendant. “When a defendant’s motion to suppress raises only general claims,

along with the Ohio Administrative Code sections, the burden imposed on the

state is fairly slight.” State v. Johnson,

(2000).

Specifically, when a motion fails to allege a fact-specific way in which a violation

has occurred, the state need only offer basic testimony evidencing compliance

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with the code section. State v. Bissaillon, 2d Dist. No. 06–CA–130, 2007-Ohio-

2349, ¶ 15.

{¶37} Here, Blair’s motion to suppress asserted only general claims, along

with the Ohio Administrative Code sections, and failed to allege a fact-specific

basis that a violation had occurred. Therefore, the prosecution’s burden to

demonstrate substantial compliance with the Ohio Department of Health

regulations was “fairly slight.”

{¶38} Sergeant Hunter of the Ohio State Highway Patrol testified during

the suppression hearing on the issue of substantial compliance. Specifically, he

testified that he is certified as a senior operator of the BAC DataMaster and that he

is qualified to perform calibration checks of the DataMaster. The prosecution

admitted into evidence Sergeant Hunter’s certificate from the Ohio Board of

Health which demonstrated that he was certified to operate the DataMaster on the

date of Blair’s test. The prosecution also presented evidence, including the

instrument check forms, which demonstrated that an instrument check of the

machine used to test Blair was performed on September 4, 2011, the day before

Blair’s test, and that another check was performed on September 11, 2011.

Sergeant Hunter testified that both instrument checks were performed by qualified

senior operators and that the forms indicated that the machine was functioning

properly and that all the Ohio Department of Health regulations were met.

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{¶39} Sergeant Hunter also testified regarding his administration of the

breath test to Blair. Specifically, he testified that he waited until the twenty-

minute observation period was complete. He testified that he followed the

appropriate procedure for running the machine, and explained to Blair how to

blow into the machine and that he would tell her when to stop. Sergeant Hunter

testified that he obtained a sufficient sample from Blair and that the test result

indicated Blair’s breath contained a concentration of alcohol of .106.

{¶40} On appeal, Blair now attempts to make arguments regarding the issue

of substantial compliance that she failed to articulate at the suppression hearing.

In addition, the record demonstrates that Blair failed to present any evidence

rebutting the prosecution’s showing that Sergeant Hunter administered the test in

substantial compliance with the regulations prescribed by the Director of the

Department of Health, let alone demonstrating that she was prejudiced by anything

less than strict compliance. Accordingly, we find no error in the trial court’s

conclusion that the prosecution met its burden in showing that Blair’s breath test

was administered in substantial compliance with the Ohio Department of Health

regulations.

{¶41} For all the foregoing reasons, we conclude that the trial court did not

err in overruling Blair’s motion to suppress. Therefore, Blair’s first assignment of

error is overruled.

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Second Assignment of Error

{¶42} In her second assignment of error, Blair argues that the trial court

violated her constitutional right of confrontation, right to compulsory process,

right to present a meaningful defense, right to due process, and right to a fair trial.

Blair’s contentions under this assignment of error can be distilled into three main

points.

{¶43} First, Blair argues that the trial court erred when it granted the

prosecution’s motion to quash, prohibiting her from subpoenaing the production of

certain documents for trial. On the day before trial, Blair filed two subpoenas

duces tecum: (1) requesting Trooper Young to bring “a copy of her call log to and

from dispatch from the start of her shift on September 5, 2011, LHP 11 09 05 000

865, and a copy of her computer log (running license plate information and

driver’s license information) from the same shift on September 5, 2011;” and (2)

requesting the Keeper of Records and/or Office Manager at Ralls Automotive to

bring “a copy of or the original invoice for Megan Blair * * * for service to her

2004 Honda Civic on September 6, 2011, Customer ID 2263.” (Docs. 21, 22, 23,

24). The prosecution subsequently filed a motion to quash the subpoenas. The

same day, the trial court granted the prosecution’s motion providing the following

reason: “Criminal Rule 17(C) reads that a court may quash a subpoena if

compliance would be unreasonable or oppressive. Considering that the trial is

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scheduled to commence in less than 24 hours, this Court finds Defendant’s

subpoenas to be unreasonable and oppressive, and therefore, they are quashed.”

(JE, Mar. 6, 2012).

{¶44} Under Crim.R. 17(C), a subpoena may be used to command a person

to produce in court books, papers, documents, and other objects. However, the

court upon motion of a party may quash or modify the subpoena if compliance

would be unreasonable or oppressive. Crim.R. 17(C). Generally, an appellate

court applies an abuse of discretion standard when reviewing a trial court’s

decision to quash a subpoena. State v. Wasmus, 10th Dist. No. 94APA07–1013

(Apr. 27, 1995); State v. Strickland,

, 2009–Ohio–3906, ¶ 37

(8th Dist).

{¶45} At the outset we note that Blair never established the relevance of

Trooper Young’s logbooks to her defense or how her defense would be hindered

by the exclusion of this evidence. The record demonstrates that before filing this

subpoena, Blair’s counsel failed to make a discovery demand regarding Trooper

Young’s logbooks, despite having over six months to do so. Nevertheless, for

reasons not apparent in the record, Blair’s counsel chose to spring this request on

the prosecution less than twenty-four hours before trial, thereby depriving the

prosecution of adequate notice to prepare for trial the following day without

requesting a continuance. Notably, had Blair used the proper vehicle to request

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this evidence through a discovery demand, the trial court still retained discretion to

strike this last minute request as untimely pursuant Crim.R 16(M).2

{¶46} The second subpoena duces tecum filed by Blair the day before trial

requested the records keeper from Ralls Automotive to bring an invoice from

Blair’s service visit to a mechanic there the day after her arrest for OVI. Blair’s

counsel attempted to admit this invoice into evidence at the suppression hearing

over the prosecution’s objection that the document was not provided in discovery

and that the document was hearsay. The trial court sustained the prosecution’s

objection on both grounds and excluded the evidence, but allowed Blair’s counsel

to proffer the exhibit using Blair’s testimony. Blair testified that she took her car

to the mechanic the next day and no repairs to her rear license plate light were

needed.

{¶47} It is obvious from Blair’s proffered testimony that she was

attempting to use this invoice to argue that her license plate light was operable at

the time Trooper Young effectuated the traffic stop. However, this invoice from

the day after the arrest was irrelevant to resolving the issue of whether Trooper

Young had probable cause at the time she stopped Blair. Furthermore, Blair’s

2 Criminal Rule 16(M) states as follow: “Time of motions. A defendant shall make his demand for discovery within twenty-one days after arraignment or seven days before the date of trial, whichever is earlier, or at such reasonable time later as the court may permit. A party’s motion to compel compliance with this rule shall be made no later than seven days prior to trial, or three days after the opposing party provides discovery, whichever is later. The motion shall include all relief sought under this rule. A subsequent motion may be made only upon showing of cause why such motion would be in the interest of justice.”

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subpoena duces tecum was a last minute attempt to bypass the trial court’s ruling

regarding the admissibility of this evidence at the suppression hearing.

Notwithstanding the trial court’s ruling to quash the subpoena, Blair was still able

to present testimony similar to that which she gave at the suppression hearing

regarding her visit to the mechanic the day after her arrest. We also note that the

trial took place approximately six months from the date Blair claimed to have

visited the mechanic regarding her rear license plate light. The record is devoid of

any indication that Blair disclosed this invoice in reciprocal discovery to the

prosecution despite having possession of this document throughout the course of

the entire court proceedings.

{¶48} Accordingly, for all the reasons stated we find no abuse of discretion

in the trial court’s decision to grant the prosecution’s motion to quash Blair’s

subpoenas.

{¶49} Next, Blair contends that the trial court committed reversible error

when it prevented her from presenting certain evidence at the suppression hearing

and at trial. Blair also claims the trial court prohibited her from cross-examining

the prosecution’s witnesses regarding her specific breathalyzer test results at the

suppression hearing and at trial. The prosecution contends that Blair’s counsel

was merely making a veiled attempt to generally attack the reliability and validity

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of the breath testing instrument and to relitigate settled substantial compliance

issues at trial.

{¶50} Initially, we note that while the accused may not challenge the

general accuracy of a legislatively determined testing instrument, he may

challenge the accuracy of his specific test result. Columbus v. Day,

(1985). Thus, the accused may attempt to show that something

went wrong with his test and consequently, the result was at variance with what

the approved testing procedure should have produced.

Additionally, the

accused may attack the test results pursuant to the rules of evidence and may also

use expert testimony regarding the weight to be given to the evidence. See

generally State v. French,

,

and State v. Vega,

(1984).

{¶51} However, this issue is separate from the matter of whether the

prosecution proved the breath test was performed in substantial compliance with

the regulations of the Director of the Department of Health. The Supreme Court

of Ohio has held the following regarding the admissibility of substantial

compliance issues at trial.

Crim.R. 12(C)(3) and Traf.R. 11(B)(2) provide that “[m]otions to suppress evidence * * * on the ground that it was illegally obtained” must be raised before trial. We have expressly held that Crim.R. 12(C)(3) (then (B)(3)) requires a pretrial suppression hearing in a[n] [OVI] prosecution to determine the admissibility of alcohol-content test results claimed to have been

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illegally obtained based on noncompliance with the director’s rules governing the maintenance and operation of testing devices. If a defendant does not move for suppression prior to trial, he or she “may not object to the admissibility of the test results at trial on those grounds.”

***

In summary, a challenge asserting that test results were not obtained in compliance with the director’s rules must be raised by a defendant prior to trial by way of a pretrial motion to suppress. Failure to file such a motion constitutes a waiver, so that a defendant may not force the state to lay a foundation for the admissibility of the test results at trial: issues concerning compliance with the director’s rules may not be raised for the first time at trial to challenge admissibility. Moreover, finality attaches to a ruling on a motion to suppress. Accordingly, the ruling of substantial compliance by the court at a pretrial suppression hearing prevails at trial, and a defendant may not raise, at trial, a challenge to the admissibility of test results based on the assertion that the state failed to comply with the director’s rules in obtaining them.

State v Edwards,

,

, ¶¶ 11-12 (internal

citations omitted). As previously discussed in our resolution of the first

assignment of error, Blair failed to articulate any specific factual basis alleging

Sergeant Hunter failed to comply with the Ohio Department of Health regulations

at the suppression hearing. This lack of particularity triggered a “fairly slight”

burden on the prosecution to demonstrate that substantial compliance with the

Ohio Department of Health regulations was met. In reviewing the transcript from

the trial proceedings, the instances complained of by Blair regarding the trial

court’s limiting of her cross-examination were simply attempts by Blair’s counsel

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to relitigate substantial compliance issues at trial that she failed to articulate at the

suppression hearing. See Edwards at ¶ 20 (stating that compliance with Ohio

Department of Health regulations “is not a jury question and is to be decided by

the court prior to trial”). We further note that the trial court permitted Blair’s

counsel to question Trooper Young outside the presence of the jury to determine

whether Blair’s counsel intended to raise in front of the jury the prohibited issue of

substantial compliance rather than raising the permissible issue of attacking the

specific test result in her case. After listening to the questions prepared by Blair’s

counsel, the trial court determined that the questions attempted to relitigate the

issue of substantial compliance and were inappropriate for the jury. Thus, we find

no error with the trial court’s ruling limiting defense counsel’s cross examination

in this regard.

{¶52} The other issue complained of by Blair in this assignment of error

focuses on the trial court’s ruling excluding certain exhibits relating to the “invalid

sample test ticket” at the suppression hearing and at trial. This evidence relates to

the first breath test administered to Blair by Trooper Young which produced an

invalid result. The record demonstrates that the trial court excluded this evidence

at the suppression hearing and at trial because Blair’s counsel in both instances

failed to lay a proper foundation for the evidence to be admitted as an exhibit.

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{¶53} However, the trial court permitted Blair to question both Trooper

Young and Sergeant Hunter about the invalid test result at the suppression hearing

and at trial. Trooper Young testified that during her administration of the test

Blair failed to continually breathe into the machine as instructed, but instead

breathed and stopped, breathed and stopped, until the machine clicked off as

invalid. Even though Trooper Young maintained at trial that the invalid sample

was caused by Blair improperly blowing, Blair’s counsel elicited testimony from

Sergeant Hunter who read from the DataMaster Operator’s Manual that an

“invalid sample” indicates that the machine detected a substance in the mouth of

the subject blown into the instrument, and that if the subject did not blow hard

enough into the instrument, an “incomplete sample” or a “refusal” would be

indicated. However, Sergeant Hunter also testified that the invalid test sample

from Trooper Young’s administration of the first test did not affect the validity of

the breath sample he obtained from Blair in the second test which demonstrated

that the concentration of alcohol in her breath exceeded the legal limit.

{¶54} It is apparent from the record that Blair intended to introduce the

invalid sample test ticket to insinuate that the breathalyzer machine used to test her

was somehow malfunctioning because it produced an invalid sample test ticket

during Trooper Young’s administration of the test. Blair’s counsel was able to

convey this argument to the jury without the invalid test sample being admitted

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into evidence. Thus, even if the exhibits were excluded in error, Blair’s defense

was not hindered because the jury was still able to hear evidence relating to the

invalid sample and weigh the credibility of that evidence accordingly.

{¶55} Blair’s final arguments under this assignment of error pertain to her

allegations that the trial court erred in excluding certain exhibits at trial. Some of

the exhibits regarding the invalid test sample, test ticket,` Trooper Young’s

logbooks, and the mechanic’s invoice have already been addressed. The

remaining exhibits Blair sought to introduce were Trooper Young’s narrative

report and a list of medications for migraines and allergies that Blair took on the

day of her arrest. Initially, we note that Trooper Young’s narrative report was

admitted without objection at the suppression hearing. However, Blair’s counsel

failed to lay a proper foundation to allow the exhibit to be admitted at trial.

{¶56} With regard to the list of medications, at the suppression hearing,

Blair’s counsel attempted to admit this list into evidence over the prosecution’s

objection that the exhibit was never disclosed in discovery. Blair’s counsel

conceded on the record that she never shared the exhibit with the prosecutor prior

to the hearing. The trial court sustained the prosecution’s objection and excluded

the exhibit from evidence. However, at both the suppression hearing and at trial,

Blair testified to the medications she takes on a daily basis as part of her defense

and that she took those medications on the date of her arrest. Therefore, the

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factfinder was able to discern the relevance of this evidence and weigh it

accordingly.

{¶57} For all the reasons previously discussed, we find no error with the

conclusions of the trial court to admit or to exclude the evidence raised in this

assignment of error, and we further find that Blair suffered no violations of her

constitutional rights as alleged. Blair’s second assignment of error is overruled.

Third Assignment of Error

{¶58} In her third assignment of error, Blair argues that the trial court erred

when it imposed a one-year license suspension of her driver’s license without

giving her credit for the ninety-day Administrative License Suspension (“ALS”)

she received as a consequence of the concentration of alcohol in her breath testing

above the legal limit. Specifically, Blair alleges that the trial court’s failure to

credit her for the ninety days transformed the ALS from remedial to punitive in

nature as multiple punishments for the same offense, and therefore violated the

Double Jeopardy Clause of the United States Constitution.

{¶59} It is well settled that “an ALS imposed pursuant to R.C. 4511.191,

and a criminal [OVI] prosecution for violation of R.C. 4511.19 arising out of the

same arrest constitute separate proceedings for double jeopardy purposes.” State

v. Gustafson,

,

. However, “an

administrative license suspension imposed pursuant to R.C. 4511.191 ceases to be

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remedial and becomes punitive in nature to the extent the suspension continues

subsequent to adjudication and sentencing for violation of R.C. 4511.19.”

paragraph three of syllabus.

{¶60} Here, Blair’s ALS was an automatic consequence of the breath test

results indicating that the concentration of alcohol in her breath exceeded the legal

limit. See R.C. 4511.191(C)(1). Because this was Blair’s first offense, the

duration of her ALS was three months and went into effect at the time she tested

over the legal limit. See R.C. 4510.02; R.C. 4511.191 (C)(1)(a). The trial court

imposed the one-year license suspension as a part of Blair’s sentence stemming

from her conviction for OVI, in violation of R.C. 4511.19(A)(1)(a). This occurred

over six months after her ALS went into effect. Thus, Blair’s ALS was complete

nearly three months prior to the trial court imposing the judicial license suspension

for her OVI conviction. Therefore, because Blair’s ALS did not continue

subsequent to the adjudication and sentencing for her violation of R.C. 4511.19

[OVI], the ALS did not become punitive in nature as Blair now contends.

{¶61} Moreover, we note that although it is within a trial court’s discretion

to credit the time completed under an ALS against a judicial suspension of a

person’s driver’s license, Blair fails to direct us to any authority mandating that the

trial court do so. We further note that for a first time OVI offense, the trial court

was permitted to suspend Blair’s driver’s license for any period of time between

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six months and three years. See R.C. 4510.02. The trial court’s imposition of a

one-year license suspension in this case was well within the statutorily prescribed

limits. Accordingly, Blair’s third assignment of error is overruled.

{¶62} Based on the foregoing, the judgment of the Marion Municipal Court

is affirmed.

Judgment Affirmed

WILLAMOWSKI, J., concur.

/jlr

ROGERS, J., Concurring Separately.

{¶63} While I concur with the result reached by the majority, I write

separately to address the second assignment of error and the trial court’s actions as

to the two subpoenas duces tecum.

{¶64} First and foremost, the trial court was only presented with one

motion to quash. The State moved to quash Appellant’s subpoena directed to

Trooper Young and directing her to bring with her to trial her call log and her

computer log. The State alleged that these records had been provided in discovery

or were not relevant. Nowhere in its motion did the State allege that the requests

for production were unreasonable and oppressive. Yet that was the basis stated by

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the trial court to substantiate its ruling. There are no facts in the record that would

substantiate the trial court’s finding. Further, since the request was limited to one

Trooper and the day in question, the finding itself seems unreasonable and

arbitrary. Therefore, I would find error in the granting of the State’s motion to

quash.

{¶65} Second, there was no filing of any motion to quash the subpoena

directed to Ralls Automotive. Therefore, there was no reason for the trial court to

address that issue, let alone any evidence to substantiate a finding that such a

request for production was unreasonable and oppressive. Again, I would find

error by the trial court.

{¶66} However, Appellant has failed to demonstrate any prejudice to her

case from the erroneous ruling of the trial court. As noted by the majority,

Appellant failed to make any showing as to what relevant evidence would have

been gleaned from the logs, and Appellant testified as to the same matters that

might have been demonstrated by the records from Ralls Automotive. Therefore, I

would find the errors to be harmless in this case.

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