Tenth District allows testimony from out-of-uniform officer working as a parking garage security guard and allows the twenty minute observation periods to be conducted by any police officer, regardless of whether they are licensed operators.
May 26, 2016
Officer Tomlin was working for a private employer, serving as a security guard at a parking garage. He observed Hutchison to be intoxicated and called it in. Officer Little, who was not a licensed for the BAC Datamaster performed the 20 minute observation and then Officer Woolley, who was licensed, performed the breath test. Hutchison appealed the trial court's denial of a motion to suppress Officer Tomlin's testimony due to being out of uniform and the breath test results due to being performed by an unlicensed operator.
Ohio evidence rules prohibit testimony by an officer who was "on duty for the exclusive or main purpose of enforcing traffic laws, arresting or assisting in the arrest of a person charged with a traffic violation punishable as a misdemeanor" if the officer "was not using a properly marked motor vehicle as defined by statute or was not wearing a legally distinctive uniform as defined by statute." The Tenth District allowed the testimony, concluding that Tomlin was working as a security guard, and therefore his main purpose was not to enforce traffic laws.
With respect to the observation period, even though Ohio law requires the breath test to be conducted by a licensed operator, and even though the checklist requires a 20 minute observation period, the Tenth District concluded, "Surely, any trained police officer is up to the task of observing a subject for 20 minutes to prevent the ingestion of any foreign substance." Therefore, the trial court's rulings were affirmed.