Trial Attorney Toolkit – Motion in Limine

Black’s Law Dictionary defines a motion in limine as “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial.” Black’s Law Dictionary (7th ed.) p. 1033.  The motion in limine has been called a “procedural orphan” due to its lack of statutory or procedural authority despite being recognized by the Ohio Supreme Court in State v. Grubb 28 Ohio St.3d 199, 503 N.E.2d 1141 (1985). See Ohio Driving Under the Influence Law, Weiler & Weiler, 2009-2010 ed., sec.12.9, p. 355.  The practitioner should be careful not to rely upon a motion in limine in lieu of a motion to suppress due to the Ohio Supreme Court decision in State v. French, 72 Ohio St.3d 446, 650 N.E.2d 887 (1995), which held that a motion to suppress is the exclusive procedural method to challenge the admissibility of alcohol and drug test results.  However, a well-researched and timely motion in limine can be used to attack prior convictions, refusal issues, horizontal gaze nystagmus issues, scientific and expert witness issues and results of a portable breath test devise. (for a more exhaustive list see Ohio Driving Under the Influence Law, Weiler & Weiler, 2009-2010 ed., sec.12.11, p. 357).  Another potential landmine for the DUI practitioner is that your rights on appeal are significantly limited with a motion in limine versus a motion to suppress.  By its nature, a motion in limine ruling is tentative and often trial/evidence dependent. Therefore, a limine ruling will not form the basis for an appeal unless it is preserved for trial. See Columbus v. Sullivan, 4 Ohio App.3d. 7, 446 N.E.2d. 485 (1982).  Further, unlike a motion to suppress, a plea (even a no-contest plea) waives the right to appeal the motion in limine ruling. State v. Benton, 136 Ohio App.3d 801, 737 N. E.2d 1046 (2000).  The motion in limine is a powerful tool that can be used with devastating effectiveness as a trial approaches.  This trial lawyer’s tool should not be overlooked.