[Cite as State v. Webb, 2012-Ohio-4238.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellee : Hon. John W. Wise, J. 

 : Hon. Julie A. Edwards, J. 

-vs- : 

 : Case No. 11 CAC 10 0099 

JACQUELINE A. WEBB : 

 : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal Court 

Court, Case No. 11 TRC 7501 

JUDGMENT: REVERSED AND REMANDED 

DATE OF JUDGMENT ENTRY: September 12, 2012 

APPEARANCES: 

For Appellant: For Appellee: 

 

MICHAEL A. MARROCCO ELIZABETH A. MATUNE 

98 N. Union St. Asst. Prosecuting Attorney 

Delaware, OH 43015 70 N. Union St. 

 Delaware, OH 43015 

 

Delaney, P.J. 
{¶1} Defendant-Appellant Jacqueline Webb appeals her October 24, 2011 

conviction and sentence for a violation of R.C. 4511.19(A)(1)(h) by the Delaware 

Municipal Court. The State of Ohio is the Plaintiff-Appellee. 

FACTS AND PROCEDURAL HISTORY 

{¶2} Webb was charged in the Delaware Municipal Court with operating a 

motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), 

operating a motor vehicle with a breath-alcohol concentration of .17 of one gram or 

more in violation of R.C. 4511.19(A)(1)(h), a stop sign violation, improper backing, and 

aggravated menacing. Webb entered a not guilty plea on July 11, 2011.

{¶3} Webb filed a motion to suppress all evidence obtained during the 

incident, including the initial encounter with the police, the OVI field investigation, and 

post-arrest. A hearing was set on the motion for August 26, 2011.

{¶4} At the suppression hearing, the parties stipulated the officer had 

sufficient reasonable suspicion and probable cause to stop Webb and subsequently 

arrest Webb. The parties further stipulated the horizontal gaze nystagmus portion of 

the field sobriety test was not done in substantial compliance with the NHTSA manual, 

but two other field sobriety tests were performed in substantial compliance. The issue 

before the trial court was whether the breath test was administered in substantial 

compliance with ODH regulations. The parties stipulated to the admission of State 

Exhibit 1, a packet of documents relating to the administration of the breath test, for 

the trial court to make its determination.

{¶5} The trial court issued its decision on August 31, 2011. The trial court 

found upon its review of State Exhibit 1, the evidence failed to establish the officer 
who administered the breath test held an operator’s or senior operator’s permit as 

required by Ohio Adm.Code 3701-53-07(C). Accordingly, the State failed to prove the 

breath test was administered in substantial compliance with ODH regulations. The 

trial court suppressed the result of the breath test.

{¶6} The state filed a Motion to Reconsider on September 1, 2011. The State 

argued that due to an error by the prosecuting attorney, the operator’s permit of the 

officer was not included in State Exhibit 1 for the trial court’s consideration. The State 

attached the operator’s permit to the motion. 

{¶7} The trial court held an oral hearing on the motion to reconsider. By 

judgment entry issued September 23, 2011, the trial court granted the motion to 

reconsider and allowed the evidence of the operator’s permit to be admitted as 

evidence. The trial court found the breath test was administered in substantial 

compliance with ODH regulations and denied Webb’s motion to suppress.

{¶8} At the final pretrial, Webb entered a no contest plea to R.C. 

4511.19(A)(1)(h) and criminal damaging. The trial court found Webb guilty and 

sentenced Webb by judgment entry on October 24, 2011.

{¶9} It is from this decision Webb now appeals. 

ASSIGNMENTS OF ERROR 

{¶10} Webb raises two Assignments of Error: 
{¶11} “I. THE TRIAL COURT ERRED IN GRANTING THE STATE’S MOTION 

FOR RECONSIDERATION AND SUBSEQUENT ADMISSION OF APPELLANT’S 

BAC RESULTS. 

{¶12} “II. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE 

APPELLANT’S BAC TEST WHEN THE PROSECUTION FAILED TO PROVE 

SUBSTANTIAL COMPLIANCE WITH THE ODH RULES AND REGULATIONS 

GOVERNING WEEKLY INSTRUMENT CHECKS OF THE BAC DATAMASTER.” 

ANALYSIS 

I. 

{¶13} Webb argues in her first Assignment of Error the trial court erred in 

considering and granting the State’s motion for reconsideration of the August 31, 2011 

judgment entry because the State’s only recourse to challenge the trial court’s ruling 

on the motion to suppress was to file a notice of appeal with this Court pursuant to 

App.R. 9(B). We agree. 

{¶14} Ohio Rule of Criminal Procedure 12(K) provides for the state to appeal 

from a trial court’s ruling on a defendant’s motion to suppress: 

(K) When the state takes an appeal as provided by law from an order 

suppressing or excluding evidence, or from an order directing pretrial 

disclosure of evidence, the prosecuting attorney shall certify that both of 

the following apply: 

(1) the appeal is not taken for the purpose of delay; 

(2) the ruling on the motion or motions has rendered the state's 

proof with respect to the pending charge so weak in its entirety 
that any reasonable possibility of effective prosecution has been 

destroyed, or the pretrial disclosure of evidence ordered by the 

court will have one of the effects enumerated in Crim. R. 16(D). 

 The appeal from an order suppressing or excluding evidence shall 

not be allowed unless the notice of appeal and the certification by the 

prosecuting attorney are filed with the clerk of the trial court within seven 

days after the date of the entry of the judgment or order granting the 

motion. Any appeal taken under this rule shall be prosecuted diligently. 

 If the defendant previously has not been released, the defendant 

shall, except in capital cases, be released from custody on the 

defendant's own recognizance pending appeal when the prosecuting 

attorney files the notice of appeal and certification. 

 This appeal shall take precedence over all other appeals. 

 If an appeal from an order suppressing or excluding evidence 

pursuant to this division results in an affirmance of the trial court, the 

state shall be barred from prosecuting the defendant for the same offense 

or offenses except upon a showing of newly discovered evidence that the 

state could not, with reasonable diligence, have discovered before filing 

of the notice of appeal. 

{¶15} In State v. Renkes, 5th Dist. No. 11CAA070067, 2012-Ohio-1931, this 

Court recently examined the issue of whether the State was required to appeal a trial 

court’s judgment entry granting the defendant’s motion to suppress or whether the 

State could instead utilize a motion for clarification to challenge the judgment entry 
granting the motion to suppress. Id. at ¶18-25. We analyzed State v. Malinovsky, 60 

Ohio St.3d 20, 573 N.E.2d 22 (1991), that held pursuant to the Rules of Criminal 

Procedure, when a trial court grants a defendant’s motion to suppress and such ruling 

destroys the State’s case, the ruling is a final order. Id. at ¶34-48. The motion to 

suppress judgment entry in Renkes suppressed not only the defendant’s statements 

but also the derivative physical evidence seized incidental to the search of the 

defendant’s residence, thereby effectively destroying the State’s case against the 

defendant. Id. at 49. We found the judgment entry granting the defendant’s motion to 

suppress was a final appealable order from which the State should have appealed. Id. 

The judgment was reversed in part and remanded to the trial court for further 

proceedings. 

{¶16} In the case sub judice, Webb was charged with operating a motor vehicle 

while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and operating 

a motor vehicle with a breath-alcohol concentration of .17 of one gram or more in 

violation of R.C. 4511.19(A)(1)(h). Webb filed a motion to suppress the results of the 

breath test. The trial court’s August 31, 2011 judgment entry granted the motion and 

suppressed the results of the breath test. Upon the State’s motion to reconsider, the 

trial court denied Webb’s motion to suppress and allowed the results of the breath test 

as evidence. Webb then pleaded no contest to a violation of R.C. 4511.19(A)(1)(h). 

{¶17} Pursuant to State v. Renkes, we find the August 31, 2011 judgment entry 

granting Webb’s motion to suppress was a final appealable order. In Ohio, a trial 

court has no authority to reconsider a valid final judgment in a criminal case. State v. 

Brown, 5th District No. 09–CA–137, 2010–Ohio–2757, ¶ 19, citing State v. Moore, 4th 
Dist. No. 03CA18, 2004–Ohio–3977. The Ohio Supreme Court has held that a motion 

for reconsideration of a final judgment is a nullity. Pitt v. Ohio Dept. of Transp., 67 

Ohio St.2d 378 (1981). 

{¶18} Accordingly, we affirm Webb’s first Assignment of Error.

II.

{¶19} Webb argues in her second Assignment of Error the trial court erred in 

admitting the evidence of the results of the breath test.

{¶20} In light of our analysis and disposition of Webb’s first Assignment of 

Error, Webb’s second Assignment of Error is moot. 

 
CONCLUSION 

{¶21} Based on the foregoing, we affirm Webb’s first Assignment of Error. 

{¶22} The judgment of the Delaware Municipal Court is reversed and the 

matter is remanded to the trial court for further proceedings consistent with this 

opinion and law. 

By: Delaney, P.J. 

Wise, J. and 

Edwards, J. concur. 

HON. PATRICIA A. DELANEY 

HON. JOHN W. WISE 

HON. JULIE A. EDWARDS 

PAD:kgb 

 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 

 Plaintiff - Appellee 

 

-vs- 

:

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:

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:

:

:

 JUDGMENT ENTRY 

 Case No. 11 CAC 10 0099 
JACQUELINE A. WEBB 

 Defendant - Appellant 

 

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:

:

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Delaware Municipal Court reversed and the matter is remanded for further 

proceedings consistent with this opinion and law. Costs assessed to Appellee. 

HON. PATRICIA A. DELANEY 

HON. JOHN W. WISE 

HON. JULIE A. EDWARDS