COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67246 CITY OF WARRENSVILLE HEIGHTS : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICK J. KNISLEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Bedford Municipal Court Case No. 93-TRC-9287A-D JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: HOWARD S. STERN, ESQ. 75 Public Square Suite 1400 Cleveland, Ohio 44113-2001 For Defendant-Appellant: WILLIAM A. LEFAIVER, ESQ. 8010 McGhee Lane Hudson, Ohio 44236 - 2 - O'DONNELL, J.: On November 10, 1993 at 6:55 p.m., Trooper J. C. Oaks of the State Highway Patrol arrested Rick Knisley on I-480 in the city of Warrensville Heights and issued the following citations: Failure to observe lane markers in violation of R.C. 4511.39; driving with an expired license plate in violation of R.C. 4503.11; driving while under the influence of alcohol in violation of R.C. 4511.19(A)(1); and driving with a blood alcohol content (BAC) over .10% in violation of R.C. 4511.19(A)(3). Trooper Oaks transported Knisley to the Warrensville Heights police station where, at 9:18 p.m., two hours and twenty-three minutes after his arrest, a "breathalyzer" test was administered which measured his BAC at .164%. Thereafter, on January 25, 1994 Knisley entered pleas of not guilty in the Bedford Municipal Court and filed a combined motion to suppress evidence and/or dismiss the entire case. The motion raised constitutional issues of due process and search and seizure, challenging the original stop by Trooper Oaks, seeking to suppress observations and tests conducted including coordination, field sobriety, and breath analysis; it also included an objection based on the fact that Knisley's BAC was measured two hours and twenty- three minutes after his arrest, and allegations that the measuring device had not been properly calibrated. On February 11, 1994 the trial court conducted a hearing, denied both motions, and scheduled the matter for trial on February 17, 1994. However, on February - 3 - 16, 1994 defense counsel moved the court for a continuance of trial and requested the court to schedule the matter for a change of plea. The motion was granted and, on April 7, 1994, Knisley entered a plea of no contest to violating R.C. 4511.19(A)(3), and, the city dismissed all remaining charges on motion of the prosecuting attorney. The trial court accepted this agreement, found Knisley guilty and sentenced him to 30 days in jail, but suspended 20 of those days, fined him $750, and suspended his license for one year. Knisley now brings this appeal raising three assignments of error. I. In the first assignment of error, Knisley contends that the trial court should have suppressed the results of the breath alcohol test because it was administered more than two hours after his arrest. The city argues that tardy administration of the test is not fatal to its admissibility at trial. Thus, the issue for our review is, whether the trial court properly denied the motion to suppress this evidence. Instructive on this issue is the syllabus of Newark v. Lucas (1988), 40 Ohio St.3d 100. "1. In a criminal prosecution for violation of R.C. 4511.19(A)(2), (3) or (4), or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine, the results of a properly administered bodily substances test may be admitted in evidence only if the bodily substance is withdrawn within two hours of the time of the alleged violation. - 4 - "2. In a criminal prosecution for violation of R.C. 4511.19(A)(1), or of a municipal ordinance relating to operating a motor vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, the results of a properly administered bodily substances test presented with expert testimony may be admitted in evidence despite the fact that the bodily substance was withdrawn more than two hours from the time of the alleged violation." To fairly assess the propriety of the trial court's ruling, we must consider that at the time the judge ruled on the motion, the results of the BAC test would have been admissible, under Newark, supra, to support the city's case for violating R.C. 4511.19(A)(1), if the city presented those results with expert testimony. If the trial court granted the motion, the city would not have been able to proceed on that charge. Hence, while we assume the judge was aware of Newark, we cannot say it was error to deny the Motion to Suppress this evidence since it was admissible and the city had an opportunity to pursue a conviction by using this evidence. This assignment of error is therefore overruled. II. In the second assignment of error Knisley urges that the trial court erred in failing to dismiss the R.C. 4511.19(A)(3) citation, because it is based on an inadmissible test result. The city argues that no trial was held, no evidence was offered, and the conviction of the defendant is the result of a voluntarily entered plea bargain which resolved all four citations. We begin our consideration of this issue by examining what the - 5 - city must do to prove its case. In State v. Ulrich (1984), 17 Ohio App.3d 183, paragraph 3 of the headnote reads: "3. Only two elements need to be proved for the state to prevail in a prosecution of an alleged violation of R.C. 4511.19(A)(3): "(a) Operation of a vehicle within the state and; "(b) At the time of the alleged offense, that the alleged offender possess the prohibited alcohol concentration level." According to Lucas, supra, however, the prosecution cannot use a "stale" BAC to prove its case. Since no other evidence is available to prove the defendant's BAC level at the time of arrest, the court should have dismissed this citation because the city was precluded from using this test result to obtain a conviction under 4511.19(A)(3). On this basis, the trial court erred, but this error in and of itself was not prejudicial to the defendant. Had the court proceeded to trial and conviction, our conclusion perhaps would be different; but the prejudice to the defendant ensued when his counsel moved the court to continue the trial date and requested an opportunity to enter a change of plea. Based upon the error of the trial court judge in not dismissing the 4511.19(A)(3) citation, the defendant and the prosecutor mutually relying upon that mistake agreed to alter their positions: the defendant agreed to plead No Contest and the city agreed to dismiss all remaining citations. This action is a nullity since the defendant could not have plead to such a charge, - 6 - the court could not have found him guilty and the state altered its position as well. Based upon the error of the trial judge, and the parties mutual reliance upon it, we must vacate that plea agreement, reverse the conviction of the defendant on the charge of violating R.C. 4511.19(A)(3) and remand the entire case to the trial court for further proceedings consistent with our opinion and the case law cited herein. This assignment of error is well taken. III. For his third assignment of error Knisley contends that the trial court erred in finding him guilty upon his plea of no contest. In light of our ruling on the second assignment and our vacation of the plea agreement, we find that appellant's third assignment of error is moot. Judgment reversed, case remanded to the trial court for further proceedings. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J., CONCURS; NAHRA, J., DISSENTS (See Dissenting Opinion, Nahra, J., attached) TERRENCE O'DONNELL JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67246 : CITY OF WARRENSVILLE HEIGHTS, : : : D I S S E N T I N G Plaintiff-Appellee : : O P I N I O N vs. : : RICK J. KNISLEY, : : : Defendant-Appellant : : DATE: APRIL 27, 1995 NAHRA, J., DISSENTING: The defendant faced four charges. After a preliminary ruling on evidence relating to two of the charges, the defendant plea bargained. Three charges were dismissed and he pled no contest to the remaining charge. I would affirm. .