.]
Criminal law—Exclusionary rule not applicable as a sanction for violating R.C.
2935.20, the right of arrestee to communicate with an attorney.
(No. 94-662—Submitted May 10, 1995—Decided June 28, 1995.)
CERTIFIED by the Court of Appeals for Greene County, No. 93-CA-27.
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Gerald E. Schlafman, City Solicitor, and Joseph W. Stadnicar, Assistant
Prosecuting Attorney, for appellant.
Dan D. Weiner, for appellee.
Betty D. Montgomery, Attorney General, Richard A. Cordray, State
Solicitor, and Simon B. Karas, Deputy Chief Counsel, urging reversal for amicus
curiae, Attorney General.
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{¶ 1} The cause is before this court upon the certification of the court of
appeals that its judgment conflicted with the judgment of the Court of Appeals for
Franklin County in Columbus v. Reid (1986),
,
upon the following question:
"[W]hether or not the exclusionary rule is applicable as a sanction for
violation of R.C. 2935.20."
{¶ 2} This court answers the certified question in the negative. The
judgment of the court of appeals is reversed, and the cause is remanded to it for
further proceedings.
DOUGLAS, RESNICK, F.E. SWEENEY and COOK, JJ., concur.
MOYER, C.J., WRIGHT and PFEIFER, JJ., dissent.
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SUPREME COURT OF OHIO
WRIGHT, J., dissenting.
{¶ 3} The issue certified to this court is "whether or not the exclusionary
rule is applicable as a sanction for violation of R.C. Section 2935.20." Although I
do not agree that every violation of R.C. 2935.20 requires suppression of evidence
obtained as a result of the violation, I agree with both lower courts that the
breathalyzer test results should be excluded in this case. Therefore, I respectfully
dissent.
{¶ 4} It is well settled in Ohio that courts ordinarily will not apply the
exclusionary rule to evidence that is the product of a statutory violation falling short
of a constitutional violation, unless the legislature specifically mandates such
exclusion.1 See Kettering v. Hollen (1980),
. However, in this case, the breathalyzer
test results should be excluded because they were the product of police misconduct
which not only denied Mattachione her rights under R.C. 2935.20, but also denied
her due process of law in violation of the Fourteenth Amendment to the United
States Constitution.
{¶ 5} The federal Due Process Clause prohibits states from depriving "any
person of life, liberty, or property, without due process of law." In the case before
us, there is no doubt that Mattachione's liberty interests were at stake. If she
submitted to the test and her breath contained an impermissible concentration of
alcohol, her license would be revoked and she would likely face imprisonment and
fines. See R.C. 4511.191(D)(1)(a); R.C. 4511.99.
{¶ 6} When the police asked Mattachione whether she would submit to a
breathalyzer test, she responded on three separate occasions that she did not want
1. R.C. 2935.20 does not provide for the application of the exclusionary rule for the violation of its
provisions. Those who violate that section are subject to a maximum fine of $100 and/or
imprisonment of not more than thirty days.
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January Term, 1995
to take the test until her attorney was present. As soon as her husband arrived at
the police station, he told the police dispatcher, "My wife is not to take any test.
I've got an attorney coming." Instead of conveying that message to his wife, an
officer told Mattachione, "there's no attorney coming." There is no evidence that
Mattachione's husband or anyone else told any officer or dispatcher that an attorney
would not be coming to the police station. Believing the officer's false assertion
that no attorney was coming, Mattachione finally agreed to take the breathalyzer
test.
{¶ 7} From these facts, it is clear that Mattachione agreed to take the
breathalyzer test before she was required by law to do so only because the police
misled her. As such, the police not only disregarded appellee's statutory right to
confer with counsel, but also intentionally deceived her into prematurely
abandoning that right. Such police misconduct denies the appellee her due process
rights because it offends a sense of justice and reflects poorly upon the fundamental
fairness of the police procedures.
{¶ 8} I agree with the general proposition that whether a driver who seeks
to communicate with an attorney has been deprived of her due process rights
depends upon the facts of each case. One must consider the totality of the
circumstances. If police violate an individual's constitutional rights and the
individual submits to a chemical test through police duplicity, the only effective
sanction is to exclude the test results that are adverse to the defendant.
{¶ 9} Accordingly, I would affirm the judgment of the court of appeals.
MOYER, C.J., and PFEIFER, J., concur in the foregoing dissenting opinion.
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