Suppression and dismissal motions are a vital resource for any defendant fighting a charge of OVI in Ohio. This blog has written several articles referring to various motions filed by counsel in defense of an OVI charge. Theses discussion, for the most part, were substantive in nature.

A recent Ohio court of appeals case addresses the rules governing how a motion is presented. It typifies the long held rule that motions can not be generic. They must be written with particularity. The case, In re Minnick, 2009 Ohio 5274, touches on a subject very relevant to motion practice in Ohio- the issue of “particularity.” In this case, the defendant was stopped and eventually charge for OVI. The defense counsel filed a motion to suppress, among other issues, the results of the breathalyzer.

In his motion the defendant stated, “…[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 the defendant wanted to be suppressed, including the results of the breathalyzer. The defendant 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, the defendant’s motion read: “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.”

The lower court denied the defendant’s motion to suppress the results of the breathalyzer. The defendant appealed.

In analyzing the merits of the case, the Third Appellate District Court (Van Wert County) centered its attention on the generic nature of the pleading itself. The court quoted Criminal Rule 47 that stated the rule required, “[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, 1994 Ohio 452, 636 N.E.2d 319.

The court went on to say, “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.”

In sustaining the lower court’s decision, the appellate court concluded that, “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, [the defendant] never requested in his motion that the results of the BAC Datamaster be suppressed because of non-compliance with the OAC. Rather, [the defendant] 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 [the arresting officer] to administer this test.” In summary, the appellate court opined that the defendant’s motion failed to contain sufficient particularity and, for that reason, the lower court was correct in suppressing the motion.

This appellate court sustained the long held rule that generic motions will not be tolerated. Therefore, in preparing any motion to suppress, the pleading should contain, at minimum:

1. A statement of what the defendant is attempting to suppress,

2. A cite as to the particular administrative code section or what legal right was violated, and

3. A factual summary of the actions of the arresting officer or entity that violated that OAC section or right.

In the State of Ohio, a basis must shown for the introduction of certain types of evidence. For example, in order for field sobriety tests to be admitted, the state must show its police officer “substantially complied” with printed standards for the administration of such tests. Most courts required the standards required by the National Highway Traffic Safety Administration (NHTSA).

The same standard is required when introducing the results of a chemical test such as a breathalyzer. The state must show that its substantially complied with the requirements of the Ohio Administrative Code (OAC) in the maintenance and repair of the police department’s breath alcohol testing machine before the results are admissible or that the OAC standards were met when taking a blood or urine sample.

BUT, in order to require the state to produce such evidence, the defendant, through their attorney, must file an appropriate motion with the court challenging the introduction of such evidence. If you will recall my last blog, I discussed an attorney’s duty to review the records of the arresting police department to determine if that department substantially complied with the NHTSA standards or the OAC. If some anomaly is found, the attorney should file a motion presenting these issues to the court for possible suppression.

NOW, what type of motion should be filed? Some attorneys file what are characterized as “generic” motions that set forth every conceivable issue set forth in the OAC or the NHTSA manual without setting forth any specific facts. This is sometimes called the “dart board” approach. Throw a dart at the board and hope that one hits the bulls eye.

This is a dangerous approach because it lessens the burden on the prosecutor to show substantial compliance. Such motions only require the prosecutor to introduce general testimony of substantial compliance, see State v. Nicholson. Most courts in Ohio have long stood by the rule that any motion to suppress must set forth, with specificity, the facts for which the defendant seeks suppression. Some courts will sustain a prosecutor’s motion to strike (throw out) any motion that is not specific.

So, when you speak with an attorney, be sure they fully investigate the police department’s compliance with all standards required and they set forth, with specificity, all facts that will support any suppression motion.