dissenting. I must respectfully dissent from the holding of the majority that “[a] motion to suppress is a proper pretrial procedure for challenging breathalyzer test results * * *.”
Repeatedly, this court has held that R.C. 4511.191 is constitutional and the proceedings thereunder are civil and administrative in nature, and are independent of any criminal proceedings which may be instituted. Hoban v. Rice (1971), 25 Ohio St. 2d 111, 54 O.O. 2d 254, 267 N.E. 2d 311, at paragraph one of the syllabus; State v. Starnes (1970), 21 Ohio St. 2d 38, 50 O.O. 2d 84, 254 N.E. 2d 675. It also has been held that one accused of intoxication has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. See Schmerber v. California (1966), 384 U.S. 757, 771.
The accuracy of the test results may be a critical issue in determining a defendant’s guilt or innocence, but it does not involve constitutional issues which would be the basis of a motion to suppress. Rather, issues relating to the breathalyzer test are entirely statutory or administrative in nature. Such issues should not be raised by means of a pretrial motion to suppress. The issue of whether the test was reasonably reliable clearly goes to the weight of the evidence sought to be excluded, rather than admissibility based upon the constitutionality of the means by which it was obtained.
Additionally, Crim. R. 12(B) provides in pertinent part: “[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial: * * * (3) Motions to suppress evidence, including but not limited to statements and identification testimony, on the ground that it was illegally obtained. * * *” Thus if it were alleged that the authorities did something to violate appellant’s constitutional rights, such as compelling him to submit to the test by means of force or threat of force, then a motion to suppress would be the proper vehicle, i.e., a violation of appellant’s constitutional rights would be in question. A motion to suppress should challenge the means by which evidence is acquired and not the competency of the evidence. Based on the facts of this case the sole allegation is that the machine was not operating properly. This merely concerns an administrative or statutory infraction. In order for the exclusionary rule to apply, a violation of a right must proceed and result in the acquisition of the evidence sought to be excluded. As the United States Supreme Court stated in Michigan v. Tucker (1974), 417 U.S. 433, 447, “[t]he deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged *6in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused.”
Under the situation in the present case, appellants did not have a constitutional right to refuse to take the test. There is no allegation that the police engaged in “willful, or at the very least negligent, conduct” which deprived them of some constitutional right. Tucker, supra. Appellants have totally failed to show how their constitutional rights have been violated. We held in Kettering v. Hollen (1980), 64 Ohio St. 2d 232, 235, 18 O.O. 3d 435, 437, 416 N.E. 2d 598, 600, that “[i]t is clear from these cases that the exclusionary rule will not ordinarily be applied to evidence which is the product of police conduct violative of state law but not violative of constitutional rights.” Mere alleged malfunction of a breathalyzer machine should not be the subject of a motion to suppress. By reason of the foregoing, I would affirm the judgments below.
Holmes, J., concurs in the foregoing dissenting opinion.