Medina v. Townsend

7 Ohio App. Unrep. 343

• Court: Ohio Court of Appeals
• Decided: October 31, 1990
• Docket: Case No. 1879
• Status: Published

Opinions

BAIRD, P.J.

This cause comes before the court upon the appeal of Thomas Townsend from his conviction in the Medina Municipal Court following his plea of no contest to a charge of operating a motor vehicle with a prohibited breath-alcohol count, in violation of Medina City Ordinance 333.01(A) (3). This ordinance is substantially similar to R.C. 4511.19(A)(3), and violations of both are first degree misdemeanors.

Appellant was arrested on the above charge on April 22, 1989. On July 7, the individual who was then acting as his attorney authorized the Medina prosecutor to sign the attorney's name on a speedy trial waiver form. The first trial date of July 13 was continued to August 22 due to court docket congestion. On August 22, the court denied appellant's motion to dismiss for failure to bring him to trial within the ninety-day time period required by R.C. 2945.71. However, the court granted appellant's motion to compel discovery, and then ordered another continuance to give appellant time to review the evidence produced through compelled discovery.

On August 24, appellant filed a motion to suppress the results of his Intoxilyzer breath-alcohol test, alleging, failure of the police to comply with the requirements of Ohio Adm. Code 3701-53-02 regarding radio frequency interference (RFI) tests for breath-alcohol measuring instruments A hearing was held on the motion on October 30. On November 29, the court denied the suppression" motion, and appellant subsequently entered his plea of no contest.

Assignment of Error I.

"The court erred in not discharging the defendant for want of speedy prosecution."

We find no error in the trial court's denial of appellant's motion to dismiss for lack of a speedy trial. The record shows that the first continuance was reasonably ordered pursuant to R.C. 2945.72(H); which extends the time in which trial must be commenced for the period of any reasonable continuance granted other than upon the accused's own motion. The second continuance was also properly granted pursuant to R.C. 2945.72(E) which extends the time for the period of delay caused by a motion raised by the accused. Any alleged error by the court in finding that appellant's first.attorney waived speedy trial on his behalf is of no consequence, as trial was first convened and the first continuance granted well within the statutory time limits of R.C. 2945.71.

Assignments of Error.

"II. The court erred in not suppressing the defendant's breath test as evidence, there having been no RFI survey done after January l-;< 1987, as required.

"III. The court erred in finding that the so called October 30, 1986, RFI survey was in substantial compliance with Ohio Department of health rules regulations [sic] dated January 1, 1987. (OAC 3701-53-02)."

Ohio Adm. Code 3701-53-02(0 reads:

"(C) A radio frequency interference (RFI) survey shall be performed for each breath testing instrument listed in paragraphs (AXD to (A) (3) and (A) (5) of this rule that is in operation at each breath testing site. RFI surveys are not required for the instrument listed in paragraph (A) (4) of this rule. Survey results shall be recorded on the form set forth in appendix G to this rule. The original RFI survey form and any subsequent RFI survey forms shall be kept on file in the area where tests are performed.A new survey shall be conducted when a breath testing instrument's spatial placement or axis is changed from that designated in the most recent survey form. Radio transmitting antennae shall not be used within any RFI-affected zone during conduct of a subject test or a calibration check."

This code section became effective on January 1, 1987. The purpose of this section was to set forth more exact and reliable methods of RFI surveying of breath-alcohol measuring instruments than had been previously required. State v. Fley (Dec. 14, 1988), Hamilton App. No. C-870811, unreported.

Medina police had last conducted an RFI survey of their Intoxilyzer machine on October 301 1986. The trial court found that this survey was in substantial compliance with the new regulations, and therefore denied appellant's motion to suppress. See State v. Stallings (Mar. 8, 1989), Medina App. No. 1751, unreported; State v. Plummer (1986), 22 Ohio St. 3d 292.

Appellant argues that Ohio Adm. Code 3701-53-02(0) requires that an RFI survey be performed after the effective date of that code section in order for the results of breath-alcohol tests taken after that date to be admitted at trial. Appellant cites State v. Fley, supra, in support of this contention, in that case, the First District Court of Appeals held that compliance with the newly enacted procedure was mandatory, and that a breath-alcohol measuring instrument must be surveyed for radio frequency inter- ference according to the procedures set forth in Appendix G to Ohio Adm. Code 3701-53-02(0 before breath-alcohol test results can be used in court.

However, neither Fley nor the language of Ohio Adm. Code 3701-53-02(0 supports appellant's contention that such a survey must be made after the effective date of the regulation. Ohio Adm. Code 3701-53-02(0 requires retesting only where the instrument has been moved in its spatial placement or axis. There is no contention that this occurred here. Further, it is clear from the record that the RFI survey procedures followed by the Medina police on October 30, 1986, were virtually identical to those that became mandatory on January 1, 1987, if not even more exacting in their requirements. We find no justification for requiring repetition of a proper RFI survey merely because it was performed before such a survey became mandatory.

Appellant further alleges several failures in proper administration of the October 30, 1986, RFI survey itself. Our review of the record shows that these issues were not specifically raised before the trial court. Appellant has therefore waived review of these alleged errors on appeal. See State v. McGarry (July 25, 1990), Summit App. No. 14467; State v. Gasser (1980), 5 Ohio App. 3d 217.

Judgment of the trial court is affirmed.