[Cite as State v. Dudley, 2021-Ohio-478.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO JUDGES: 

 Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee Hon. William B. Hoffman, J. 

 Hon. Patricia A. Delaney, J. 

-vs- 

 Case No. 2020 CA 00016 

SARAH E. DUDLEY 

 

 Defendant-Appellant O P I N IO N 

 

CHARACTER OF PROCEEDINGS: Appeal from the Fairfield County 

Municipal Court, Case No. TRC1905980A 

 

JUDGMENT: Affirmed 

 

DATE OF JUDGMENT ENTRY: February 19, 2021 

 

APPEARANCES: 

 

For Plaintiff-Appellee For Defendant-Appellant

 

RANDALL T. ULLOM SAMUEL H. SHAMANSKY 

City of Lancaster Law Director & DONALD L. REGENSBURGER 

Prosecutor’s Office COLIN E. PETERS 

 ASHTON C. GAITANOS 

DAVID R. KLEMP 523 South Third Street

Assistant City Prosecutor Columbus, Ohio 43215 

136 West Main Street 

P.O. Box 1008 

Lancaster, Ohio 43130 

 
Fairfield County, Case No. 2020 CA 00016 2 

Hoffman, J. 

{¶1} Defendant-appellant Sarah E. Dudley appeals the judgment entered by the 

Fairfield County Municipal Court convicting her of operating a motor vehicle with a 

prohibited breath alcohol content (R.C. 4511.19(A)(1)(d)) following her plea of no contest, 

and sentencing her to 170 days in jail with 167 suspended and three days credited for 

completion of a driver’s intervention program. Plaintiff-appellee is the state of Ohio. 

STATEMENT OF THE CASE1

{¶2} On June 22, 2019, Appellant was stopped by Trooper Adam Dickerson of 

the Ohio State Highway Patrol. She was cited with driving left of center (R.C. 4511.25), 

driving with a prohibited breath alcohol content (R.C. 4511.19(A)(1)(d)), and driving while 

impaired (R.C. 4511.19(A)(1)(a)). 

{¶3} Appellant filed a motion to suppress the chemical breath test, which was 

overruled by the trial court on November 8, 2019. After several continuances and a 

settlement conference, the case was set for jury trial on March 3, 2020. 

{¶4} On the morning of jury trial, Appellant filed a motion to continue the trial in 

order to secure an expert witness to testify. Appellant had not previously disclosed the 

expert witness to the State in accordance with Crim. R. 16(K). The trial court overruled 

the motion. 

{¶5} Also on the morning of trial, the State filed a motion in limine to preclude 

testimony from Appellant’s expert, to prevent Appellant from introducing a video of the 

traffic stop and field sobriety testing, and to preclude attacks on the general reliability of 

the breathalyzer machine used in this case and the margin of error or variance on the 

 

1 A rendition of the facts is unnecessary for our resolution of the issues raised on appeal. 
Fairfield County, Case No. 2020 CA 00016 3 

machine. The trial court ruled on the motion in limine after a hearing, excluding 

Appellant’s expert witness’s testimony pursuant to Crim. R. 12(K) and excluding attacks 

on the reliability of the breathalyzer. 

{¶6} The State dismissed the charge of driving while intoxicated pursuant to R.C. 

4511.19(A)(1)(a) on the morning of trial, intending to proceed only on the charge of driving 

with a prohibited breath alcohol content. Following the trial court’s rulings on the State’s 

motion in limine and Appellant’s motion to continue, Appellant entered a plea of no contest 

to the charge of driving with a prohibited breath alcohol content. The left of center charge 

was dismissed. She was convicted of driving with a prohibited breath alcohol content and 

sentenced to 170 days in jail with 167 suspended and three days credited for completion 

of a driver’s intervention program, fined $375.00, and placed on community control for 

two years. 

{¶7} It is from the March 3, 2020 judgment of the Fairfield County Municipal Court 

Appellant prosecutes her appeal, assigning as error: 

 I. THE TRIAL COURT DEPRIVED APPELLANT HER RIGHTS TO 

DUE PROCESS OF LAW, CONFRONTATION, AND TO PRESENT A 

COMPLETE DEFENSE BY PROHIBITING ANY CROSS-EXAMINATION 

OR ARGUMENT REGARDING THE SPECIFIC BREATH TEST MACHINE 

OR RESULT IN THIS CASE. 

 II. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED 

APPELLANT’S RIGHT TO DUE PROCESS OR TO PRESENT A 

COMPLETE DEFENSE BY REFUSING TO GRANT HER A REASONABLE 
Fairfield County, Case No. 2020 CA 00016 4 

CONTINUANCE TO SECURE HER EXPERT’S REPORT AND 

TESTIMONY, WHICH WAS NECESSITATED BY THE STATE’S 

GAMESMANSHIP. 

 III. THE TRIAL COURT’S RULING PREVENTING APPELLANT 

FROM CALLING HER EXPERT WITNESS DENIED HER THE 

OPPORTUNITY TO PRESENT THE VIDEO OF HER TRAFFIC STOP AT 

TRIAL, VIOLATING HER RIGHT TO DUE PROCESS AS GUARANTEED 

BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO 

CONSTITUTION. 

I., III. 

{¶8} In her first and third assignments of error, Appellant argues the trial court 

erred in its rulings on the State’s motion in limine preventing her from attacking the 

reliability of the breathalyzer at trial and preventing her from calling her expert witness.2

{¶9} A ruling on a motion in limine does not preserve the error for appeal, and 

an appellate court need not review the ruling unless the claimed error is preserved by an 

objection at trial. State v. Grubb, 28 Ohio St.3d 199, 503 N.E.2d 142, paragraph two of 

the syllabus (1986). Further, a no contest plea generally waives any claim of error with 

respect to an adverse ruling on a motion in limine. See, e.g., State v. Pyo, 5th Dist. 

Delaware No. 04CAA01009, 2004-Ohio-4768, ¶ 19. 

 

2 While Appellant argues the trial court erred in preventing her from presenting the video of her traffic stop 

and field sobriety tests, the trial court’s entry does not address this branch of the State’s motion in limine. 
Fairfield County, Case No. 2020 CA 00016 5 

{¶10} Appellant argues the ruling on the State’s motion in limine is not waived by 

her plea of no contest in the instant case, relying on State v. French, 72 Ohio St.3d 446, 

1995-Ohio-32, 650 N.E.2d 887. In French, the Ohio Supreme Court discussed the 

function of a motion in limine as opposed to a motion to suppress evidence: 

 A “motion in limine ” is defined as “[a] pretrial motion requesting [the] 

court to prohibit opposing counsel from referring to or offering evidence on 

matters so highly prejudicial to [the] moving party that curative instructions 

cannot prevent [a] predispositional effect on [the] jury.” Black's Law 

Dictionary, supra, at 1013. The purpose of a motion in limine “is to avoid 

injection into [the] trial of matters which are irrelevant, inadmissible and 

prejudicial[,] and granting of [the] motion is not a ruling on evidence and, 

where properly drawn, granting of [the] motion cannot be error.” Id. at 1013–

1014. See State v. Maurer (1984), 15 Ohio St.3d 239, 259, 15 OBR 379, 

396, 473 N.E.2d 768, 787. 

 A ruling on a motion in limine reflects the court's anticipated 

treatment of an evidentiary issue at trial and, as such, is a tentative, 

interlocutory, precautionary ruling. Thus, “the trial court is at liberty to 

change its ruling on the disputed evidence in its actual context at trial. 

Finality does not attach when the motion is granted.” Defiance v. Kretz

(1991), 60 Ohio St.3d 1, 4, 573 N.E.2d 32, 35, citing State v. Grubb (1986), 

28 Ohio St.3d 199, 201–202, 28 OBR 285, 288, 503 N.E.2d 142, 145. 
Fairfield County, Case No. 2020 CA 00016 6 

 Confusion and inaccuracy may arise, however, because a motion in 

limine may be used in two ways. It may be used as a preliminary means of 

raising objections to evidentiary issues to prevent prejudicial questions and 

statements until the admissibility of the questionable evidence can be 

determined outside the presence of the jury. It may also be used as the 

functional equivalent of a motion to suppress evidence that is either not 

competent or improper due to some unusual circumstance not rising to the 

level of a constitutional violation. Palmer, Ohio Rules of Evidence, Rules 

Manual (1984) 446, cited in State v. Maurer, supra, 15 Ohio St.3d at 259, 

15 OBR at 396–397, 473 N.E.2d at 787, fn. 14. 

{¶11} Id. at 449-450, 650 N.E.2d at 890-91. 

{¶12} In the instant case, the State’s motion in limine was not the functional 

equivalent of a motion to suppress. Appellant previously filed a motion to suppress the 

results of the breathalyzer test, and has not assigned error to the trial court’s judgment 

overruling her motion. We find the State’s motion in limine falls squarely within the 

definition of a motion in limine as set forth by the French court, and therefore Appellant 

has waived any error in the trial court’s ruling by her plea of no contest. 

{¶13} The first and third assignments of error are overruled. 

II. 

{¶14} In her second assignment of error, Appellant argues the trial court erred in 

denying her motion to continue, filed on the morning of trial. 
Fairfield County, Case No. 2020 CA 00016 7 

{¶15} The grant or denial of a continuance is a matter which is entrusted to the 

broad, sound discretion of the trial judge, and an appellate court must not reverse the 

denial of a continuance unless there has been an abuse of discretion. State v. Unger, 67 

Ohio St.2d 65, 67, 423 N.E.2d 1078, 1080 (1981). An abuse of discretion is more than a 

mere error in judgment; it is a “perversity of will, passion, prejudice, partiality, or moral 

delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 

(1993). 

{¶16} In evaluating a motion for a continuance, a court should note, inter alia: the 

length of the delay requested; whether other continuances have been requested and 

received; the inconvenience to litigants, witnesses, opposing counsel and the court; 

whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, 

or contrived; whether the defendant contributed to the circumstance which gives rise to 

the request for a continuance; and other relevant factors, depending on the unique facts 

of each case. Unger, supra, at 67–68, 423 N.E.2d at 1080. 

{¶17} Appellant argues a continuance was necessary to secure an expert to testify 

as to the charge of driving with a prohibited breath alcohol content because of the State’s 

“gamesmanship” in dismissing the charge of driving while impaired at the last minute. 

However, the charge of driving with a prohibited breath alcohol content was always a part 

of this case, and thus Appellant was always required to defend the charge. Nothing in 

the circumstances of the driving with a prohibited breath alcohol content charge under 

R.C. 4511.19(A)(1)(d) was changed by the State’s dismissal of the R.C. 4511.19(A)(1)(a) 

charge. Appellant contributed to the circumstance which gave rise to the need for the 

continuance by failing to timely secure an expert to defend a charge which was a part of 
Fairfield County, Case No. 2020 CA 00016 8 

the case from the beginning. We find the trial court did not abuse its discretion in denying 

Appellant’s motion to continue. 

{¶18} The second assignment of error is overruled. 

{¶19} The judgment of the Fairfield County Municipal Court is affirmed. 

By: Hoffman, J. 

Gwin, P.J. and 

Delaney, J. concur