Ohio law has reached a consensus on who bears the burden of going forward in DUI/OVI motions to suppress when this issues involve an illegal stop and arrest. In Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889, the court ruled that the state had the burden of going forward and the burden of proof to justify a seizure once it has been shown that the seizure was made without a warrant. Therefore, if your motion to suppress is based on a refusal or pre-arrest decisions, the state must carry the water.
Much less clear to judges and practitioners is the burden of going forward with challenges based on violations of the testing protocols. As Judge Painter points out in his classic OHIO DRIVING UNDER THE INFLUENCE LAW, 2007-2008 ed., sec. 8:17 at 163, the Supreme Court has not addressed the issue, but has rulings that support "the position that the state must initially go forward and present evidence to support admission of the test results regardless of the timing of the determination." At trial the burden certainly rests with the state. Aurora v. Keply (1979), 60 Ohio St.2d 73, 397 N.E.2d 400 and City of Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 330 N.E.2d 908. This requirement is not as great as it may seem. In State v. Brown (9th Dist. Lorain 1975), 49 Ohio St.2d 104, 259 N.E.2d 706, the court required only general testimony that all pertinent rules and regulations had been followed in conducting the defendant's test. The same burden that the state bears at trial
What this article warns against is the not-so-subtle attempts by courts to shift the burden to the defendant by requiring that the defendant present proof of non-compliance prior to going forward on the motion. This can be done by limiting the time available for motions, by requiring written explanations as to why the defense is challenging the evidence, or by overtly challenging and/or criticizing an attorney who files what the court considers too broad a motion. In essense, the courts may be taking the position that by not satisfying the court then the court will allow the test in by default. This is bad because the test is given such inviolable status (see my rants against State v. Vega) that its admission amounts to admittting an element of the offense. "[I]t would be inherently unfair and a potential violation of due process to require the defendant to go forward in a motion to suppress and initially negate the propriety of the test results." (Painter at 164).
Our system triumphs the ideal that the defendant is entitled to hold the government to its burden. "Therefore, if called on to do so by means of a written motion to suppress, the state should be prepared in a hearing pursuant to the motion to present an entire foundation necessary to admit the test results into evidence." (Painter at 164 yea!). In no other area of law would we require a defendant to specify a defect or risk having the results admitted. This is another area where DUI/OVI law is drifting away from cherished American principles and needs to have a radical paradigm shift.