State v. Bowers

Ohio Court of Appeals

State v. Bowers

829 N.E.2d 755, 161 Ohio App. 3d 149, 2005 Ohio 2593

CourtOhio Court of Appeals

DecidedMay 24, 2005

DocketNo. 04CA65.

StatusPublished

Cited by1 cases

This text of 829 N.E.2d 755 (State v. Bowers) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Bowers, 829 N.E.2d 755, 161 Ohio App. 3d 149, 2005 Ohio 2593 (Ohio Ct. App. 2005).

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Farmer, Judge.

{¶ 1} On March 28, 2004, appellant, Jimmy Bowers, blew into a breath-alcohol-concentration (“BAC”) Datamaster breath-testing machine and tested .153. He was subsequently charged with driving under the influence in violation of R.C. 4511.19(A)(1) and driving outside a marked lane in violation of R.C. 4511.33. Appellant filed several pretrial motions, including a motion to suppress and/or in limine to bar the introduction of the breath-test results. A hearing was held on June 9, 2004. By judgment entry filed June 22, 2004, the trial court denied the motion.

{¶ 2} On August 13, 2004, appellant pleaded no contest to the charges. By judgment entry filed on the same date, the trial court found appellant guilty of the charges. The trial court then sentenced appellant to 30 days in jail, 27 of them suspended, and imposed a fine of $300 plus court costs.

*151 {¶ 3} Appellant filed an appeal, and this matter is now before this court for consideration. The assignment of error is as follows:

{¶ 4} “The trial court erred in not granting appellant-defendant’s motion to suppress and/or in limine to exclude the Datamaster breath test.”

{¶ 5} Appellant claims that the trial court erred in denying his motion to exclude the results of the BAC Datamaster breath-testing machine. We agree.

{¶ 6} Appellant argues that the state improperly submitted a certified copy of an uncertified copy of the calibration-solution certificate, as it was incomplete and unauthenticated.

{¶ 7} This issue was addressed by this court in State v. Musick, Licking App. No. 01CA77, 2002-Ohio-2890, 2002 WL 1274179. In Mustek, this court found that an unauthenticated or uncertified copy of a calibration-solution affidavit was inadmissible at a suppression hearing and, therefore, that the state had failed to meet its burden. Applying Mustek to this case, we find that the trial court erred in admitting the certified copy of an uncertified copy of the calibration-solution affidavit. “[T]he authentication of a calibration solution affidavit is a condition precedent to its admission.” State v. Edwards, Tuscarawas App. No. 2003AP090077, 2004-Ohio-870, 2004 WL 362209, ¶ 21 (Farmer, J., dissenting).

{¶ 8} The sole assignment of error is granted.

{¶ 9} The judgment of the Municipal Court of Licking County, Ohio, is hereby reversed.

Judgment reversed.

Boggins, P.J., concurs. William B. Hoffman, J., dissents.

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Farmer, Judge.

{¶ 1} On March 28, 2004, appellant, Jimmy Bowers, blew into a breath-alcohol-concentration (“BAC”) Datamaster breath-testing machine and tested .153. He was subsequently charged with driving under the influence in violation of R.C. 4511.19(A)(1) and driving outside a marked lane in violation of R.C. 4511.33. Appellant filed several pretrial motions, including a motion to suppress and/or in limine to bar the introduction of the breath-test results. A hearing was held on June 9, 2004. By judgment entry filed June 22, 2004, the trial court denied the motion.

{¶ 2} On August 13, 2004, appellant pleaded no contest to the charges. By judgment entry filed on the same date, the trial court found appellant guilty of the charges. The trial court then sentenced appellant to 30 days in jail, 27 of them suspended, and imposed a fine of $300 plus court costs.

*151 {¶ 3} Appellant filed an appeal, and this matter is now before this court for consideration. The assignment of error is as follows:

{¶ 4} “The trial court erred in not granting appellant-defendant’s motion to suppress and/or in limine to exclude the Datamaster breath test.”

{¶ 5} Appellant claims that the trial court erred in denying his motion to exclude the results of the BAC Datamaster breath-testing machine. We agree.

{¶ 6} Appellant argues that the state improperly submitted a certified copy of an uncertified copy of the calibration-solution certificate, as it was incomplete and unauthenticated.

{¶ 7} This issue was addressed by this court in State v. Musick, Licking App. No. 01CA77, 2002-Ohio-2890, 2002 WL 1274179. In Mustek, this court found that an unauthenticated or uncertified copy of a calibration-solution affidavit was inadmissible at a suppression hearing and, therefore, that the state had failed to meet its burden. Applying Mustek to this case, we find that the trial court erred in admitting the certified copy of an uncertified copy of the calibration-solution affidavit. “[T]he authentication of a calibration solution affidavit is a condition precedent to its admission.” State v. Edwards, Tuscarawas App. No. 2003AP090077, 2004-Ohio-870, 2004 WL 362209, ¶ 21 (Farmer, J., dissenting).

{¶ 8} The sole assignment of error is granted.

{¶ 9} The judgment of the Municipal Court of Licking County, Ohio, is hereby reversed.

Judgment reversed.

Boggins, P.J., concurs. William B. Hoffman, J., dissents.

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829 N.E.2d 755, 161 Ohio App. 3d 149, 2005 Ohio 2593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bowers-ohioctapp-2005.

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