[Cite as State v. Drake, 2014-Ohio-509.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : CAMERON R. DRAKE : Case No. 13CA15 : Defendant Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Mount Vernon Municipal Court, Case No. 12-TRC- 5482
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 12, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
P. ROBERT BROEREN, JR. CHASE A. MALLORY 5 North Gay Street 580 East Rich Street Suite 222 Columbus, OH 43215 Mount Vernon, OH 43050 Knox County, Case No. 13CA15 2
Farmer, J.
{¶1} On December 28, 2012, Ohio State Highway Patrol Trooper James
Burkhart stopped appellant, Cameron Drake, for failing to use a turn signal. Upon
investigation, appellant was asked to perform a BAC DataMaster breathalyzer test. The
breathalyzer machine had been calibrated by Trooper Kamal Nelson. Appellant was
subsequently charged with two counts of operating a motor vehicle under the influence
of alcohol in violation of R.C. 4511.19(A)(1)(a) and (d) and failing to use a signaling
device in violation of R.C. 4511.39.
{¶2} On February 7, 2013, appellant filed a motion to suppress, claiming the
breathalyzer was not taken in substantial compliance with the rules and regulations of
the National Highway Traffic Safety Administration (hereinafter "NHTSA"). A hearing
was held on March 19, 2013. By journal entry filed May 1, 2013, the trial court denied
the motion.
{¶3} On May 28, 2013, appellant pled no contest to the R.C. 4511.19(A)(1)(d)
charge (operating a motor vehicle with a prohibited blood alcohol content), and the other
two charges were dismissed. By sentencing entry filed same date, the trial court found
appellant guilty and sentenced him to five years of community control.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED WHEN IT FOUND THE TROOPER
POSSESSED A VALID SENIOR OPERATOR'S PERMIT AS REQUIRED TO
ADMINISTER THE TEST TO APPELLANT." Knox County, Case No. 13CA15 3
{¶6} Appellant claims the trial court erred in denying his motion to suppress the
results of the BAC DataMaster test as Trooper Burkhart did not possess a valid senior
operator permit to operate the machine. We disagree.
{¶7} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this type of claim, an appellate court must independently determine, without deference
to the trial court's conclusion, whether the facts meet the appropriate legal standard in
any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal." Knox County, Case No. 13CA15 4
{¶8} R.C. 3701.143 states the following:
For purposes of sections 1547.11, 4511.19, and 4511.194 of the
Revised Code, the director of health shall determine, or cause to be
determined, techniques or methods for chemically analyzing a person's
whole blood, blood serum or plasma, urine, breath, or other bodily
substance in order to ascertain the amount of alcohol, a drug of abuse,
controlled substance, metabolite of a controlled substance, or combination
of them in the person's whole blood, blood serum or plasma, urine, breath,
or other bodily substance. The director shall approve satisfactory
techniques or methods, ascertain the qualifications of individuals to
conduct such analyses, and issue permits to qualified persons authorizing
them to perform such analyses. Such permits shall be subject to
termination or revocation at the discretion of the director.
{¶9} Appellant argues there was a violation of Ohio Adm.Code 3701-53-
09(F)(3) which states the following (applicable version):
(F) To qualify for renewal of a permit under paragraph (A) or (B) of
this rule:
(3) If the individual seeking a renewal permit currently holds an
operator or senior operator permit, the permit holder shall have completed
satisfactorily an in-service course for the applicable type of evidential Knox County, Case No. 13CA15 5
breath testing instrument which meets the requirements of paragraph (B)
of this rule, which includes review of self-study materials furnished by the
director.
{¶10} Appellant argues the evidence does not demonstrate that Trooper
Burkhart had a valid operator permit for the BAC DataMaster machine. Appellant's
position is that neither Trooper Burkhart nor Trooper Nelson testified they participated in
an in-service course prior to the renewal of their permits.
{¶11} In its journal entry filed May 1, 2013, the trial court specifically found both
troopers had valid senior operator permits to operate the machine. Both troopers
testified they had valid senior operator permits, and they passed both the written test
and the proficiency test administered by the Department of Health. T. at 5, 8, 24-25, 41;
State's Exhibits 1 and 6.
{¶12} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 24, the
Supreme Court of Ohio explained the following:
After a defendant challenges the validity of test results in a pretrial
motion, the state has the burden to show that the test was administered in
substantial compliance with the regulations prescribed by the Director of
Health. Once the state has satisfied this burden and created a
presumption of admissibility, the burden then shifts to the defendant to
rebut that presumption by demonstrating that he was prejudiced by
anything less than strict compliance. State v. Brown (1996), 109 Ohio Knox County, Case No. 13CA15 6
App.3d 629, 632, 672 N.E.2d 1050. Hence, evidence of prejudice is
relevant only after the state demonstrates substantial compliance with the
applicable regulation.
{¶13} The Burnside court further stated at ¶ 34:
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Drake, 2014-Ohio-509.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : CAMERON R. DRAKE : Case No. 13CA15 : Defendant Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Mount Vernon Municipal Court, Case No. 12-TRC- 5482
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 12, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
P. ROBERT BROEREN, JR. CHASE A. MALLORY 5 North Gay Street 580 East Rich Street Suite 222 Columbus, OH 43215 Mount Vernon, OH 43050 Knox County, Case No. 13CA15 2
Farmer, J.
{¶1} On December 28, 2012, Ohio State Highway Patrol Trooper James
Burkhart stopped appellant, Cameron Drake, for failing to use a turn signal. Upon
investigation, appellant was asked to perform a BAC DataMaster breathalyzer test. The
breathalyzer machine had been calibrated by Trooper Kamal Nelson. Appellant was
subsequently charged with two counts of operating a motor vehicle under the influence
of alcohol in violation of R.C. 4511.19(A)(1)(a) and (d) and failing to use a signaling
device in violation of R.C. 4511.39.
{¶2} On February 7, 2013, appellant filed a motion to suppress, claiming the
breathalyzer was not taken in substantial compliance with the rules and regulations of
the National Highway Traffic Safety Administration (hereinafter "NHTSA"). A hearing
was held on March 19, 2013. By journal entry filed May 1, 2013, the trial court denied
the motion.
{¶3} On May 28, 2013, appellant pled no contest to the R.C. 4511.19(A)(1)(d)
charge (operating a motor vehicle with a prohibited blood alcohol content), and the other
two charges were dismissed. By sentencing entry filed same date, the trial court found
appellant guilty and sentenced him to five years of community control.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED WHEN IT FOUND THE TROOPER
POSSESSED A VALID SENIOR OPERATOR'S PERMIT AS REQUIRED TO
ADMINISTER THE TEST TO APPELLANT." Knox County, Case No. 13CA15 3
{¶6} Appellant claims the trial court erred in denying his motion to suppress the
results of the BAC DataMaster test as Trooper Burkhart did not possess a valid senior
operator permit to operate the machine. We disagree.
{¶7} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this type of claim, an appellate court must independently determine, without deference
to the trial court's conclusion, whether the facts meet the appropriate legal standard in
any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal." Knox County, Case No. 13CA15 4
{¶8} R.C. 3701.143 states the following:
For purposes of sections 1547.11, 4511.19, and 4511.194 of the
Revised Code, the director of health shall determine, or cause to be
determined, techniques or methods for chemically analyzing a person's
whole blood, blood serum or plasma, urine, breath, or other bodily
substance in order to ascertain the amount of alcohol, a drug of abuse,
controlled substance, metabolite of a controlled substance, or combination
of them in the person's whole blood, blood serum or plasma, urine, breath,
or other bodily substance. The director shall approve satisfactory
techniques or methods, ascertain the qualifications of individuals to
conduct such analyses, and issue permits to qualified persons authorizing
them to perform such analyses. Such permits shall be subject to
termination or revocation at the discretion of the director.
{¶9} Appellant argues there was a violation of Ohio Adm.Code 3701-53-
09(F)(3) which states the following (applicable version):
(F) To qualify for renewal of a permit under paragraph (A) or (B) of
this rule:
(3) If the individual seeking a renewal permit currently holds an
operator or senior operator permit, the permit holder shall have completed
satisfactorily an in-service course for the applicable type of evidential Knox County, Case No. 13CA15 5
breath testing instrument which meets the requirements of paragraph (B)
of this rule, which includes review of self-study materials furnished by the
director.
{¶10} Appellant argues the evidence does not demonstrate that Trooper
Burkhart had a valid operator permit for the BAC DataMaster machine. Appellant's
position is that neither Trooper Burkhart nor Trooper Nelson testified they participated in
an in-service course prior to the renewal of their permits.
{¶11} In its journal entry filed May 1, 2013, the trial court specifically found both
troopers had valid senior operator permits to operate the machine. Both troopers
testified they had valid senior operator permits, and they passed both the written test
and the proficiency test administered by the Department of Health. T. at 5, 8, 24-25, 41;
State's Exhibits 1 and 6.
{¶12} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 24, the
Supreme Court of Ohio explained the following:
After a defendant challenges the validity of test results in a pretrial
motion, the state has the burden to show that the test was administered in
substantial compliance with the regulations prescribed by the Director of
Health. Once the state has satisfied this burden and created a
presumption of admissibility, the burden then shifts to the defendant to
rebut that presumption by demonstrating that he was prejudiced by
anything less than strict compliance. State v. Brown (1996), 109 Ohio Knox County, Case No. 13CA15 6
App.3d 629, 632, 672 N.E.2d 1050. Hence, evidence of prejudice is
relevant only after the state demonstrates substantial compliance with the
applicable regulation.
{¶13} The Burnside court further stated at ¶ 34:
Nevertheless, we are cognizant that if "we were to agree***that any
deviation whatsoever from th[e] regulation rendered the results of a [test]
inadmissible, we would be ignoring the fact that strict compliance is not
always realistically or humanly possible." Plummer, 22 Ohio St.3d at 294,
22 OBR 461, 490 N.E.2d 902. Precisely for this reason, we concluded in
Steele that rigid compliance with the Department of Health regulations is
not necessary for test results to be admissible. Steele, 52 Ohio St.2d at
187, 6 O.O.3d 418, 370 N.E.2d 740 (holding that the failure to observe a
driver for a "few seconds" during the 20–minute observation period did not
render the test results inadmissible). To avoid usurping a function that the
General Assembly has assigned to the Director of Health, however, we
must limit the substantial-compliance standard set forth in Plummer to
excusing only errors that are clearly de minimis. Consistent with this
limitation, we have characterized those errors that are excusable under
the substantial-compliance standard as "minor procedural deviations."
State v. Homan (2000), 89 Ohio St.3d 421, 426, 732 N.E.2d 952. Knox County, Case No. 13CA15 7
{¶14} Both troopers took and passed a written test and a proficiency test for
renewal. Based upon the results of the tests, the Director of Health issued senior
operator permits to the troopers. We concur with the trial court's finding that the
troopers had valid senior operator permits.
{¶15} The fact that testimony was not presented on any in-service course is de
minimis to the validity of a permit issued by the Director of Health. The troopers' ability
to administer the test is established by the issuance of the valid permits. Both troopers
testified to obtaining previous permits, 14 (Burkhart) and 13 (Nelson), and their use of
and calibration of the BAC DataMaster machine. T. at 5-7, 41.
{¶16} The sole assignment of error is denied.
{¶17} The judgment of the Mount Vernon Municipal Court of Knox County, Ohio
is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
SGF/sg 117