Opinion
No. 91 TRC 0094.
Decided May 23, 1991.
Tanya Thieman and Ralph A. Bauer, Assistant City Prosecutor, for plaintiff.
Richard Wallace, for defendant.
This matter came before the court on defendant's motion to suppress/in limine. A hearing was held and the parties submitted memorandums.
The defendant, Howard P. Rodeheffer, was arrested for a violation of R.C. 4511.19(A)(1) on January 5, 1991, at 12:49 a.m. in Sidney, Shelby County, Ohio. Officer Vondenhuevel testified that the defendant and he arrived at the Sidney Police Station at around 1:05 a.m. The defendant was requested to take a breath test on the Intoxilyzer 5000, but indicated that he desired to consult with his attorney, Richard Wallace. The defendant tried several times over a ten- or fifteen-minute period to telephone his attorney but received busy signals. The defendant did not try to contact any other attorneys. At approximately 1:20 a.m., Officer Vondenhuevel decided that the defendant had "refused" the test. It should also be noted that only about thirty minutes of the two-hour time limit had elapsed at the time the test was designated as "refused" by the officer.
In Ohio the general rule is well stated in Columbus v. Maxey (1988), 39 Ohio App.3d 171, 172-173, 530 N.E.2d 958, 959-961:
"However, Ohio Courts have recognized that not all refusals to take chemical tests to determine alcohol content are based on `consciousness of guilt.' They have held that, in some instances, people may in good faith refuse to take such a test because they first wish to consult with counsel. In such a case, such a request to consult with an attorney before deciding to take the test does not constitute a refusal to take the test and therefore cannot be offered as evidence of guilt. * * *" (Citing Stone v. McCullion, 27 Ohio App.3d 112, 27 OBR 143, 500 N.E.2d 326; Snavely v. Dollison, 61 Ohio App.2d 140, 15 O.O.3d 244, 400 N.E.2d 415, and other cases.)
It is well established that a defendant may have an opportunity to consult an attorney prior to deciding whether to take the intoxilyzer test. The question arises as to how long a defendant has to engage in this enterprise. In the case of McCullion, supra, the court notes that two conflicting interests are present in this type of case: the desire of the law enforcement personnel to perform the chemical test within the statutorily fixed period of time (two hours), and the desire and right of the defendant to consult with counsel. Id., 27 Ohio App. 3 d at 114, 27 OBR at 144-145, 500 N.E.2d at 328. The court then goes on to say that these two conflicting interests can both be accommodated by using the rule of "reasonableness." Id.
As in other areas of the law, this test of "reasonableness" is not a solid and distinct line but, rather, is grey and wavering depending on the circumstances of the individual case and the subjective opinion of each trier of fact. However, the case law does provide some guidance. For example, in the case of Raine v. Curry (1975), 45 Ohio App.2d 155, 74 O.O.2d 171, 341 N.E.2d 606, the court states that the defendant's attempt to contact an attorney must be timely and requested in good faith. The request to contact an attorney must not unduly and unreasonably delay the administering of the intoxilyzer test. In Siegwald v. Curry (1974), 40 Ohio App.2d 313, 318, 69 O.O.2d 293, 295-296, 319 N.E.2d 381, 385, the court states that the attempt to contact an attorney before submitting to a test must be short.
In this particular case the defendant was granted ten to fifteen minutes to contact counsel. There was no indication that the defendant's efforts were other than in good faith. The time limit was well within the two-hour period.
As indicated previously, this test of reasonableness provides no clear and distinct answer. Each case must be judged individually. In general, however, a time period of five minutes would be unreasonable whereas a time period of thirty minutes would be more than a reasonable duration. At bar is a criminal charge with the attendant consequences and safeguards. A time period of ten to fifteen minutes, generally speaking, is too close to the edge and thus the court finds it unreasonable in this particular case. On the other hand, a twenty-minute allotment would normally be considered reasonable. Of course, this time allotment cannot be taken out of context and must be looked at in light of various other factors such as the two-hour time limit. However, for future guidance, a twenty-minute time period for the defendant to contact counsel will support a prima facie showing of reasonableness. For the foregoing reasons the court finds that the test was not refused in the legal sense. Since this question does not impact on a constitutional right, the motion to suppress is inapposite. The motion in limine will be granted as to any reference to the test refusal during a trial on this cause.
Defendant's motion in limine is granted.
Motion to suppress overruled. Motion in limine granted.
Reporter's Note: On August 1, 1991 defendant pled no contest and was found guilty. There was no appeal.