[Cite as State v. Inman, 2014-Ohio-97.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120829 TRIAL NO. 12TRC-16810B Plaintiff-Appellant, : O P I N I O N. vs. :
JEFFREY INMAN, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: January 15, 2014
John P. Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellant,
Herzner Law, LLC, and R. Shane Herzner, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Presiding Judge.
{¶1} Plaintiff-appellant the city of Cincinnati appeals the trial court’s
decision suppressing the result of defendant-appellee Jeffrey Inman’s breath-alcohol
test. Because we hold that the city substantially complied with the Ohio Department
of Health (“ODH”) regulations regarding breath-alcohol testing, we reverse the trial
court’s judgment.
{¶2} On April 7, 2012, Inman was charged with operating a motor vehicle
under the influence of alcohol in violation of former R.C. 4511.19(A)(1)(a), operating
a motor vehicle with a prohibited breath-alcohol content in violation of former R.C.
4511.19(A)(1)(h), and failure to maintain reasonable control under R.C. 4511.202. He
submitted to a breath-alcohol test on an Intoxilyzer 8000 located at the Cincinnati
District 2 police station. It yielded a result of .237 grams by weight of alcohol per 210
liters of breath.
{¶3} Inman subsequently filed a motion to suppress the result of the
breath-alcohol test on a number of grounds. The trial court consolidated his motion
with similar motions by defendants Rachel McNett, Eric Muchmore and Bradley
Clemente, whose breath tests had been administered on the same machine at District
2, solely for the pretrial determination of whether the city had acted in substantial
compliance with ODH regulations pertaining to the Intoxilyzer 8000 machine.
{¶4} At an evidentiary hearing on the combined motions to suppress, the
city presented the testimony of Mary Martin, the program administrator for alcohol
and drug testing at ODH. The trial court found that the city had failed to comply
with Ohio Adm.Code 3701-53-01(A), which mandates that the results of breath-
alcohol tests be retained for at least three years. It also found that ODH had not
established procedures for issuing permits for Intoxilyzer 8000 operators, as
2 OHIO FIRST DISTRICT COURT OF APPEALS
required by R.C. 4511.19 and 3701.143. Therefore, it granted the motions to suppress
filed by Inman and the other defendants. The city has filed a timely appeal under
R.C. 2945.67(A) and Crim.R. 12(K) from the trial court’s judgment.
{¶5} Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Ojile, 1st Dist. Hamilton Nos. C-110677
and C-100678, 2012-Ohio-6015, ¶ 61.
{¶6} When a defendant challenges the admission of a breath-alcohol test,
courts apply a burden shifting analysis. The state must show substantial compliance
with ODH regulations, and if the state meets that burden, a rebuttable presumption
arises that the test results are admissible. Burnside at ¶ 24; State v. Muchmore, 1st
Dist. Hamilton No. C-120830, 2013-Ohio-5100, ¶ 16. Then, the burden shifts back to
the defendant to show that he was prejudiced by anything less than strict
compliance. Burnside at ¶ 24; Muchmore at ¶ 16.
{¶7} The city presents two assignments of error for review. In its first
assignment of error, the city contends that the trial court erred in holding that ODH
had failed to promulgate the necessary qualifications for operators of the Intoxilyzer
8000. It argues that ODH has established a procedure and requirements for
obtaining a permit to use the Intoxilyzer 8000. This assignment of error is well
taken.
{¶8} In State v. McMahon, 1st Dist. Hamilton No. C-120728, 2013-Ohio-
2557, this court reversed the trial court’s judgment which had relied upon the same
reasoning employed by the trial court in this case in suppressing the defendant’s
breath-alcohol test results. In McMahon, as in this case, Martin had testified that
3 OHIO FIRST DISTRICT COURT OF APPEALS
ODH had a standardized process for obtaining an operator access card for the
Intoxilyzer 8000 as provided for in Ohio Adm.Code 3701-53-07 and 3701-53-09.
ODH had taken the position that the access card was the permit issued to an
operator of the Intoxilyzer 8000. Id. at ¶ 11.
{¶9} We stated, “After a detailed review of the relevant statutes, we find
that the department of health has promulgated the necessary qualifications for the
issuance of an operator access card.” Id. at ¶ 13. We added, “We are persuaded by
Martin’s testimony espousing the department of health’s position that the access
card is the type of permit issued to an operator of an Intoxilyzer 8000 machine.” Id.
We further held that when the relevant administrative code provisions were read
together, they supported the ODH’s interpretation. Id. at ¶ 14.
{¶10} Based on our decision in McMahon, we hold that the trial court erred
in granting Inman’s motion to suppress on the basis that ODH had failed to set forth
the requirements for obtaining an operator access card. See Muchmore, 2013-Ohio-
5100, at ¶ 18-21; State v. McNett, 1st Dist. Hamilton No. C-120824, 2013-Ohio-5099,
¶ 18-21. We, therefore, sustain the city’s first assignment of error.
{¶11} In its second assignment of error, the city contends that the trial court
erred in suppressing the breath-alcohol test result based upon noncompliance with
the record retention provisions in the administrative code. It argues that the trial
court erred in holding that the city had not substantially complied with Ohio
Adm.Code 3701-53-01(A)(1), requiring it to retain subject test results for three years.
This assignment of error is well taken.
{¶12} The testimony at the hearing showed that breath-alcohol test on the
Intoxilyzer 8000 consists of two breath samples, the lower of which is used as the
final breath-alcohol result. The machine successfully printed a “subject test report”
containing this information for Inman’s breath-alcohol test.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} But, as a result of an ODH server error, data from breath tests
administered on the machine from December 15, 2011, through December 22, 2011,
was not uploaded to the ODH database. By comparing its records with a logbook of
test results kept at the District 2 police station, ODH determined that the police
performed tests on ten individuals during that time. ODH duplicated the results of
those lost tests from the logbook, but additional data not included in the logbook was
irretrievably lost.
{¶14} In appeals by the other defendants in the consolidated hearing, we
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[Cite as State v. Inman, 2014-Ohio-97.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120829 TRIAL NO. 12TRC-16810B Plaintiff-Appellant, : O P I N I O N. vs. :
JEFFREY INMAN, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: January 15, 2014
John P. Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellant,
Herzner Law, LLC, and R. Shane Herzner, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Presiding Judge.
{¶1} Plaintiff-appellant the city of Cincinnati appeals the trial court’s
decision suppressing the result of defendant-appellee Jeffrey Inman’s breath-alcohol
test. Because we hold that the city substantially complied with the Ohio Department
of Health (“ODH”) regulations regarding breath-alcohol testing, we reverse the trial
court’s judgment.
{¶2} On April 7, 2012, Inman was charged with operating a motor vehicle
under the influence of alcohol in violation of former R.C. 4511.19(A)(1)(a), operating
a motor vehicle with a prohibited breath-alcohol content in violation of former R.C.
4511.19(A)(1)(h), and failure to maintain reasonable control under R.C. 4511.202. He
submitted to a breath-alcohol test on an Intoxilyzer 8000 located at the Cincinnati
District 2 police station. It yielded a result of .237 grams by weight of alcohol per 210
liters of breath.
{¶3} Inman subsequently filed a motion to suppress the result of the
breath-alcohol test on a number of grounds. The trial court consolidated his motion
with similar motions by defendants Rachel McNett, Eric Muchmore and Bradley
Clemente, whose breath tests had been administered on the same machine at District
2, solely for the pretrial determination of whether the city had acted in substantial
compliance with ODH regulations pertaining to the Intoxilyzer 8000 machine.
{¶4} At an evidentiary hearing on the combined motions to suppress, the
city presented the testimony of Mary Martin, the program administrator for alcohol
and drug testing at ODH. The trial court found that the city had failed to comply
with Ohio Adm.Code 3701-53-01(A), which mandates that the results of breath-
alcohol tests be retained for at least three years. It also found that ODH had not
established procedures for issuing permits for Intoxilyzer 8000 operators, as
2 OHIO FIRST DISTRICT COURT OF APPEALS
required by R.C. 4511.19 and 3701.143. Therefore, it granted the motions to suppress
filed by Inman and the other defendants. The city has filed a timely appeal under
R.C. 2945.67(A) and Crim.R. 12(K) from the trial court’s judgment.
{¶5} Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Ojile, 1st Dist. Hamilton Nos. C-110677
and C-100678, 2012-Ohio-6015, ¶ 61.
{¶6} When a defendant challenges the admission of a breath-alcohol test,
courts apply a burden shifting analysis. The state must show substantial compliance
with ODH regulations, and if the state meets that burden, a rebuttable presumption
arises that the test results are admissible. Burnside at ¶ 24; State v. Muchmore, 1st
Dist. Hamilton No. C-120830, 2013-Ohio-5100, ¶ 16. Then, the burden shifts back to
the defendant to show that he was prejudiced by anything less than strict
compliance. Burnside at ¶ 24; Muchmore at ¶ 16.
{¶7} The city presents two assignments of error for review. In its first
assignment of error, the city contends that the trial court erred in holding that ODH
had failed to promulgate the necessary qualifications for operators of the Intoxilyzer
8000. It argues that ODH has established a procedure and requirements for
obtaining a permit to use the Intoxilyzer 8000. This assignment of error is well
taken.
{¶8} In State v. McMahon, 1st Dist. Hamilton No. C-120728, 2013-Ohio-
2557, this court reversed the trial court’s judgment which had relied upon the same
reasoning employed by the trial court in this case in suppressing the defendant’s
breath-alcohol test results. In McMahon, as in this case, Martin had testified that
3 OHIO FIRST DISTRICT COURT OF APPEALS
ODH had a standardized process for obtaining an operator access card for the
Intoxilyzer 8000 as provided for in Ohio Adm.Code 3701-53-07 and 3701-53-09.
ODH had taken the position that the access card was the permit issued to an
operator of the Intoxilyzer 8000. Id. at ¶ 11.
{¶9} We stated, “After a detailed review of the relevant statutes, we find
that the department of health has promulgated the necessary qualifications for the
issuance of an operator access card.” Id. at ¶ 13. We added, “We are persuaded by
Martin’s testimony espousing the department of health’s position that the access
card is the type of permit issued to an operator of an Intoxilyzer 8000 machine.” Id.
We further held that when the relevant administrative code provisions were read
together, they supported the ODH’s interpretation. Id. at ¶ 14.
{¶10} Based on our decision in McMahon, we hold that the trial court erred
in granting Inman’s motion to suppress on the basis that ODH had failed to set forth
the requirements for obtaining an operator access card. See Muchmore, 2013-Ohio-
5100, at ¶ 18-21; State v. McNett, 1st Dist. Hamilton No. C-120824, 2013-Ohio-5099,
¶ 18-21. We, therefore, sustain the city’s first assignment of error.
{¶11} In its second assignment of error, the city contends that the trial court
erred in suppressing the breath-alcohol test result based upon noncompliance with
the record retention provisions in the administrative code. It argues that the trial
court erred in holding that the city had not substantially complied with Ohio
Adm.Code 3701-53-01(A)(1), requiring it to retain subject test results for three years.
This assignment of error is well taken.
{¶12} The testimony at the hearing showed that breath-alcohol test on the
Intoxilyzer 8000 consists of two breath samples, the lower of which is used as the
final breath-alcohol result. The machine successfully printed a “subject test report”
containing this information for Inman’s breath-alcohol test.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} But, as a result of an ODH server error, data from breath tests
administered on the machine from December 15, 2011, through December 22, 2011,
was not uploaded to the ODH database. By comparing its records with a logbook of
test results kept at the District 2 police station, ODH determined that the police
performed tests on ten individuals during that time. ODH duplicated the results of
those lost tests from the logbook, but additional data not included in the logbook was
irretrievably lost.
{¶14} In appeals by the other defendants in the consolidated hearing, we
held that the result of the breath-alcohol test that the state is required to maintain is
the lower of the two breath-test samples. Because the city maintained that result, it
substantially complied with the requirements of Ohio Adm.Code 3701-53-01(A),
despite the loss of data from December 15 through December 22, 2011. See State v.
Clemente, 1st Dist. Hamilton No. C-120828, 2013-Ohio-5213, ¶ 6-7; Muchmore,
2013-Ohio-5100, at ¶31-32; McNett, 2013-Ohio-5099, at ¶ 31-32.
{¶15} Further, Inman has not shown any prejudice related to the lost data.
His test result was not lost, ODH has determined the results of the ten missing tests,
and he has not shown how the speculative loss of any additional test results
compromised the accuracy or evidentiary value of his own breath-alcohol test result.
Consequently, we sustain the city’s second assignment of error. We reverse the trial
court’s judgment and remand the cause for further proceedings.
Judgment reversed and cause remanded.
F ISCHER and D E W INE , JJ., concur.
Please note: The court has recorded its own entry this date.