The 9th District holds that defendants who plead no-contest waive their right to challenge the sufficiency of the evidence, upholding a denial of a motion to suppress instead based on whether there is competent, credible evidence that a breath test was performed within three hours of an alleged violation.
December 7, 2015
Henkel picked up her son from a residential facility serving individuals with mental illness and took him to lunch. When staff observed signs of intoxication upon her return, they reported it to their Executive Director who also observed Henkel and notified the police. At 3:19pm an officer was dispatched and Henkel was eventually tested at 5:20pm.
Henkel moved to suppress the test results because, she argued, the State could not prove they were performed "within three hours of the time of the alleged violation," as required by R.C. 4511.19(D)(1)(b). The trial court denied her motion to suppress and Henkel entered a plead of no-contest. She brought this appeal challenging the trial court's denial of her motion to suppress.
The 9th District initially noted that, although Henkel raised arguments regarding the sufficiency of the evidence, it concluded that she waived the issue of sufficiency by pleading no contest. Therefore, rather than considering whether the State proved its case beyond a reasonable doubt, the 9th District limited its review to the ruling on the suppression motion. As such, it followed the following standards from State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8 and State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, ¶ 6:
Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
In the end, the 9th District concluded there was competent, credible evidence that the test was performed within three hours. It observed that there were 2 hours and 1 minute between the time the officer was dispatched and the time of the test, and sufficient evidence that less than 59 minutes had passed between the time Henkel parked her car and the officer was dispatched.