1996 OHIO 256 - State v. Griffith

[This opinion has been published in Ohio Official Reports at

74 Ohio St.3d 554

.]




            THE STATE OF OHIO, APPELLANT, v. GRIFFITH, APPELLEE.
                      [Cite as State v. Griffith,

1996-Ohio-256

.]
Criminal law—Exclusionary rule not applicable as a sanction for violating R.C.
         2935.20, the right to communicate with an attorney.
 (Nos. 95-209 and 95-398—Submitted January 10, 1996—Decided February 21,
                                           1996.)
 APPEAL from and CERTIFIED by the Court of Appeals for Delaware County, No.
                                      94CAC02003.
                                  __________________
         Peter B. Ruffing, Chief City Prosecutor, and Richard M. Garner, Assistant
City Prosecutor, for appellant.
         Stuart A. Benis, for appellee.
                                  __________________
         {¶ 1} This 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),

32 Ohio App.3d 7

513 N.E.2d 351

,
and the judgment of the Court of Appeals for Cuyahoga County in Lakewood v.
Waselenchuk (1994),

94 Ohio App.3d 684

641 N.E.2d 767

, upon the following
question:
         “Does imposition of the exclusionary rule lie as a remedy for police
violation of the accused’s statutory right to counsel under Section 2935.20 of the
Revised Code in a prosecution arising under Section 4511.19(A)(3) of the Revised
Code such that the prosecution should be precluded from presenting evidence of
the results of an otherwise admissible breath alcohol content analysis of the accused
solely because of police failure to comply with Section 2935.20 of the Revised
Code?”
                            SUPREME COURT OF OHIO




       {¶ 2} This court answers the certified question in the negative.         The
judgment of the court of appeals is reversed and the trial court’s judgment is
reinstated on the authority of Fairborn v. Mattachione (1995),

72 Ohio St.3d 345

650 N.E.2d 426

.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and COOK, JJ., concur.
       WRIGHT and PFEIFER, JJ., dissent.
                              __________________
       WRIGHT, J., dissenting.
       {¶ 3} I dissent for generally the same reasons I dissented in Fairborn v.
Mattachione (1995),

72 Ohio St.3d 345

650 N.E.2d 426

, a dissent that was joined
by Chief Justice Moyer and Justice Pfeifer. I continue to believe that this issue is
factually specific and should be determined case by case.
       PFEIFER, J., concurs in the foregoing dissenting opinion.
                              __________________




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