1996 OHIO 332 - State v. Sargeant

[This opinion has been published in Ohio Official Reports at

77 Ohio St.3d 161

.]




            THE STATE OF OHIO, APPELLEE, v. SARGEANT, APPELLANT.
                     [Cite as State v. Sargeant,

1996-Ohio-332

.]
Criminal law—Operating motor vehicle under the influence of alcohol—
          Evidence—Chemical test to determine intoxication not rendered
          inadmissible by failure to advise accused of statutory right to another test
          provided by R.C. 4511.19(D)(3)—License suspended administratively
          pursuant to R.C. 4511.191, subsequent to arrest for violation of R.C.
          4511.19—Subsequent prosecution of criminal drunk driving not precluded
          by Double Jeopardy Clauses of Ohio and United States Constitutions.
 (No. 95-2429—Submitted November 12, 1996—Decided December 11, 1996.)
     APPEAL from the Court of Appeals for Butler County, No. CA95-03-049.
                                  __________________
          Bruce E. Fassler, Middletown City Prosecutor, for appellee.
          Jackie Leigh Butler, for appellant.
                                  __________________
          {¶ 1} The following three propositions of law are raised by appellant in this
appeal:
          “Proposition of Law No. I: The results of a breath alcohol test should be
suppressed when one is not advised, pursuant to the requirements of R.C.
4511.19(D), of the right to an independent breath, blood or urine test.
          “Proposition of Law II: Prosecution for a violation of R.C. 4511.19(A)(3)
is barred by the Double Jeopardy Clause of Section 10, Article I of the Ohio
Constitution and the Fifth Amendment to the Constitution of the United States.
          “Proposition of Law No. III: It is an abuse of discretion not to overrule a
motion to suppress results of a breath alcohol test when the state failed to meet the
                             SUPREME COURT OF OHIO




burden set forth in Sections 3701-53 and 3701-53(D) [sic] of the Ohio
Administrative Code.”
       {¶ 2} The judgment of the court of appeals on the first proposition of law is
affirmed on the authority of Hilliard v. Elfrink (1996),

77 Ohio St.3d 155

672 N.E.2d 166

, decided today.
       {¶ 3} The judgment of the court of appeals on the second proposition of law
is affirmed on the authority of State v. Gustafson (1996),

76 Ohio St.3d 425

668 N.E.2d 435

.
       {¶ 4} The third proposition of law is dismissed as having been
improvidently allowed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
                              __________________




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