[Cite as State v. McMahon, 2013-Ohio-2557.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120728 TRIAL NO. 12TRC-34824B Plaintiff-Appellant, : O P I N I O N. vs. :
SEAN MCMAHON, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 21, 2013
John Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and William T. Horsely, Senior Assistant City Prosecutor, for Plaintiff-Appellant,
Peter Rosenwald, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Presiding Judge.
{¶1} The city of Cincinnati has appealed from the trial court’s entry
granting defendant-appellee Sean McMahon’s motion to suppress the results of a
breath test taken on an Intoxilyzer 8000 machine. The trial court suppressed the
results of McMahon’s breath test after determining that the director of health had
not promulgated the necessary requirements under R.C. 3701.143 for obtaining the
access card required for operation of an Intoxilyzer 8000 machine.
{¶2} Because we find that the director of health has promulgated the
necessary requirements for the issuance of an access card, we reverse the trial court’s
entry granting McMahon’s motion to suppress.
Factual Background
{¶3} On December 3, 2011, at approximately 3:00 a.m., McMahon was
pulled over for speeding by Ohio State Highway Patrol Trooper Joseph Westhoven.
After stopping McMahon, Trooper Westhoven noted that McMahon’s eyes were
bloodshot and that an odor of alcohol was emanating from the car. McMahon
admitted that he had consumed alcohol prior to operating his vehicle. He submitted
to various field sobriety tests at the scene of the stop, and, at the conclusion of the
tests, he was placed under arrest. McMahon was transported to the Union
Township Police Department, where he submitted to a breath test on an Intoxilyzer
8000 machine.
{¶4} McMahon was charged with speeding in violation of R.C. 4511.21,
operating a motor vehicle while under the influence of alcohol in violation of R.C.
2 OHIO FIRST DISTRICT COURT OF APPEALS
4511.19(A)(1)(a), and operating a motor vehicle with a prohibited concentration of
alcohol in his breath in violation of R.C. 4511.19(A)(1)(d).
{¶5} McMahon filed a motion to suppress all evidence stemming from his
arrest, including evidence concerning the field sobriety tests and the results of the
breath test taken on the Intoxilyzer 8000 machine. In ruling on McMahon’s motion
to suppress, the trial court determined that Trooper Westhoven had a reasonable
suspicion to stop McMahon for a traffic violation and had probable cause to place
McMahon under arrest. But the court suppressed the results of the breath test taken
on the Intoxilyzer 8000 machine after determining that the department of health
had failed to promulgate the qualifications required for the issuance of an access
card, which was necessary for the operation of the Intoxilyzer 8000 machine. The
city has appealed, arguing in its sole assignment of error that the trial court erred in
suppressing the results of McMahon’s breath test.
Standard of Review
{¶6} Our review of a trial court’s ruling on a motion to suppress presents a
mixed question of law and fact. We must accept the trial court’s findings of fact if
they are supported by competent and credible evidence. But we review de novo the
trial court’s application of the relevant law to those facts. State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
Access Card Qualifications
{¶7} We must determine whether the trial court correctly found that the
director of health had failed to promulgate the qualifications required for the
issuance of an access card to those seeking to operate an Intoxilyzer 8000 machine.
3 OHIO FIRST DISTRICT COURT OF APPEALS
In so concluding, the trial court found that, although an operator of the Intoxilyzer
8000 machine was required to have an operator access card, the director had only
promulgated qualifications for the issuance of permits, and not access cards. Under
the trial court’s analysis, no person could become qualified to operate the Intoxilyzer
8000, and any breath test taken on that machine would be inadmissible in a
prosecution under R.C. 4511.19.
{¶8} R.C. 3701.143 charges the director of the department of health with
implementing methods for analyzing a person’s breath, blood, or other bodily
substance in order to determine the amount of alcohol in the particular bodily
substance. It provides that “[t]he 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.” R.C.
3701.143.
{¶9} Ohio Adm.Code Chapter 3701-53 contains the department of health’s
codification of the methods, techniques, and qualifications that it was instructed to
implement under R.C. 3701.143. Ohio Adm.Code 3701-53-02(A)(3) specifically
provides that the Intoxilyzer 8000 is an approved breath testing instrument. And
Ohio Adm.Code 3701-53-09 explains how a person becomes qualified to operate that
instrument. Pursuant to the administrative code, those permitted to use the
Intoxilyzer 8000 machine are referred to as operators. Persons desiring to become
operators of the Intoxilyzer 8000
shall apply to the director of health for operator access cards on forms
prescribed and provided by the director of health. The director of
health shall issue operator access cards to perform tests to determine
4 OHIO FIRST DISTRICT COURT OF APPEALS
the amount of alcohol in a person’s breath to individuals who qualify
under the applicable provisions of rule 3701-53-07 of the
Administrative Code.
Ohio Adm.Code 3701-53-09(D).
{¶10} In plain terms, those desiring to operate the Intoxilyzer 8000 must
apply for an operator access card, which the director of health shall then issue to
those who qualify under the provisions of Ohio Adm.Code 3701-53-07. Turning to
that provision, entitled “Qualifications of personnel,” the code provides that
An individual meets the qualifications for an operator’s permit by: (1)
Being a high school graduate or having passed the “General Education
Development Test”; (2) Being a certified law enforcement officer
sworn to enforce sections 4511.19 and/or 1547.11 of the Revised Code,
or any other equivalent statute or local ordinance prescribing a defined
or prohibited breath alcohol concentration, or a certified corrections
officer, and; (3) Having demonstrated that he or she can properly
operate the evidential breath testing instrument by having successfully
completed a basic operator or conversion training course for the type
of approved evidential breath testing instrument for which he or she
seeks a permit.
Ohio Adm.Code 3701-53-07(E). Ohio Adm.Code 3701-53 additionally provides
qualifications for the issuance of senior operator permits, but it makes no mention of
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[Cite as State v. McMahon, 2013-Ohio-2557.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120728 TRIAL NO. 12TRC-34824B Plaintiff-Appellant, : O P I N I O N. vs. :
SEAN MCMAHON, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 21, 2013
John Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and William T. Horsely, Senior Assistant City Prosecutor, for Plaintiff-Appellant,
Peter Rosenwald, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Presiding Judge.
{¶1} The city of Cincinnati has appealed from the trial court’s entry
granting defendant-appellee Sean McMahon’s motion to suppress the results of a
breath test taken on an Intoxilyzer 8000 machine. The trial court suppressed the
results of McMahon’s breath test after determining that the director of health had
not promulgated the necessary requirements under R.C. 3701.143 for obtaining the
access card required for operation of an Intoxilyzer 8000 machine.
{¶2} Because we find that the director of health has promulgated the
necessary requirements for the issuance of an access card, we reverse the trial court’s
entry granting McMahon’s motion to suppress.
Factual Background
{¶3} On December 3, 2011, at approximately 3:00 a.m., McMahon was
pulled over for speeding by Ohio State Highway Patrol Trooper Joseph Westhoven.
After stopping McMahon, Trooper Westhoven noted that McMahon’s eyes were
bloodshot and that an odor of alcohol was emanating from the car. McMahon
admitted that he had consumed alcohol prior to operating his vehicle. He submitted
to various field sobriety tests at the scene of the stop, and, at the conclusion of the
tests, he was placed under arrest. McMahon was transported to the Union
Township Police Department, where he submitted to a breath test on an Intoxilyzer
8000 machine.
{¶4} McMahon was charged with speeding in violation of R.C. 4511.21,
operating a motor vehicle while under the influence of alcohol in violation of R.C.
2 OHIO FIRST DISTRICT COURT OF APPEALS
4511.19(A)(1)(a), and operating a motor vehicle with a prohibited concentration of
alcohol in his breath in violation of R.C. 4511.19(A)(1)(d).
{¶5} McMahon filed a motion to suppress all evidence stemming from his
arrest, including evidence concerning the field sobriety tests and the results of the
breath test taken on the Intoxilyzer 8000 machine. In ruling on McMahon’s motion
to suppress, the trial court determined that Trooper Westhoven had a reasonable
suspicion to stop McMahon for a traffic violation and had probable cause to place
McMahon under arrest. But the court suppressed the results of the breath test taken
on the Intoxilyzer 8000 machine after determining that the department of health
had failed to promulgate the qualifications required for the issuance of an access
card, which was necessary for the operation of the Intoxilyzer 8000 machine. The
city has appealed, arguing in its sole assignment of error that the trial court erred in
suppressing the results of McMahon’s breath test.
Standard of Review
{¶6} Our review of a trial court’s ruling on a motion to suppress presents a
mixed question of law and fact. We must accept the trial court’s findings of fact if
they are supported by competent and credible evidence. But we review de novo the
trial court’s application of the relevant law to those facts. State v. Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
Access Card Qualifications
{¶7} We must determine whether the trial court correctly found that the
director of health had failed to promulgate the qualifications required for the
issuance of an access card to those seeking to operate an Intoxilyzer 8000 machine.
3 OHIO FIRST DISTRICT COURT OF APPEALS
In so concluding, the trial court found that, although an operator of the Intoxilyzer
8000 machine was required to have an operator access card, the director had only
promulgated qualifications for the issuance of permits, and not access cards. Under
the trial court’s analysis, no person could become qualified to operate the Intoxilyzer
8000, and any breath test taken on that machine would be inadmissible in a
prosecution under R.C. 4511.19.
{¶8} R.C. 3701.143 charges the director of the department of health with
implementing methods for analyzing a person’s breath, blood, or other bodily
substance in order to determine the amount of alcohol in the particular bodily
substance. It provides that “[t]he 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.” R.C.
3701.143.
{¶9} Ohio Adm.Code Chapter 3701-53 contains the department of health’s
codification of the methods, techniques, and qualifications that it was instructed to
implement under R.C. 3701.143. Ohio Adm.Code 3701-53-02(A)(3) specifically
provides that the Intoxilyzer 8000 is an approved breath testing instrument. And
Ohio Adm.Code 3701-53-09 explains how a person becomes qualified to operate that
instrument. Pursuant to the administrative code, those permitted to use the
Intoxilyzer 8000 machine are referred to as operators. Persons desiring to become
operators of the Intoxilyzer 8000
shall apply to the director of health for operator access cards on forms
prescribed and provided by the director of health. The director of
health shall issue operator access cards to perform tests to determine
4 OHIO FIRST DISTRICT COURT OF APPEALS
the amount of alcohol in a person’s breath to individuals who qualify
under the applicable provisions of rule 3701-53-07 of the
Administrative Code.
Ohio Adm.Code 3701-53-09(D).
{¶10} In plain terms, those desiring to operate the Intoxilyzer 8000 must
apply for an operator access card, which the director of health shall then issue to
those who qualify under the provisions of Ohio Adm.Code 3701-53-07. Turning to
that provision, entitled “Qualifications of personnel,” the code provides that
An individual meets the qualifications for an operator’s permit by: (1)
Being a high school graduate or having passed the “General Education
Development Test”; (2) Being a certified law enforcement officer
sworn to enforce sections 4511.19 and/or 1547.11 of the Revised Code,
or any other equivalent statute or local ordinance prescribing a defined
or prohibited breath alcohol concentration, or a certified corrections
officer, and; (3) Having demonstrated that he or she can properly
operate the evidential breath testing instrument by having successfully
completed a basic operator or conversion training course for the type
of approved evidential breath testing instrument for which he or she
seeks a permit.
Ohio Adm.Code 3701-53-07(E). Ohio Adm.Code 3701-53 additionally provides
qualifications for the issuance of senior operator permits, but it makes no mention of
separate qualifications for the issuance of an operator access card as described in
Ohio Adm.Code 3701-53-09(D). Based on the absence of language specifically listing
qualifications for an operator access card, the trial court determined that the director
5 OHIO FIRST DISTRICT COURT OF APPEALS
of health had failed to promulgate any regulations for the issuance of that type of
card. The city contends that an access card is the type of permit that is issued under
Ohio Adm.Code 3701-53-07(E) to those qualified to operate the Intoxilyzer 8000, so
there are no separate or distinct qualifications that must be met to be issued an
access card.
{¶11} Mary Martin, the department of health’s program administrator for
alcohol and drug testing, testified at the suppression hearing regarding the issuance
of access cards. According to Martin, an individual desiring to operate the
Intoxilyzer 8000 must first fill out an application pursuant to Ohio Adm.Code 3701-
53-09(D). The individual must then meet the qualifications listed above and found
in Ohio Adm.Code 3701-53-07(E). According to Martin, an access card is the type of
permit that is issued to an operator of the Intoxilyzer 8000.
{¶12} When interpreting a statute, our primary concern is to give effect to
legislative intent. Griga v. DiBenedetto, 1st Dist. No. C-120300, 2012-Ohio-6097, ¶
10. The legislature “will not be presumed to have intended to enact a law producing
unreasonable or absurd consequences.” State v. Steele, 1st Dist. No. C-100637, 2011-
Ohio-5479, ¶ 13, quoting State ex rel. Cooper v. Savord, 153 Ohio St. 367, 92 N.E.2d
390 (1950), paragraph one of the syllabus.
{¶13} 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. 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. When a statue is silent or ambiguous with
respect to an issue, a court must give deference to an agency’s interpretation of its
6 OHIO FIRST DISTRICT COURT OF APPEALS
own regulations if the interpretation is reasonable. Wells Fargo Bank, N.A. v.
Isaacs, 1st Dist. No. C-100111, 2010-Ohio-5811, ¶ 9-10, citing Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984). Here, the department of health’s position that an access card is
the type of permit that is issued to an operator of an Intoxilyzer 8000 under Ohio
Adm.Code 3701-53-07(E) comports with R.C. 3701.143, which authorizes the
director of health to issue permits to qualified persons, but does not reference the
issuance of access cards.
{¶14} And the relevant administrative code provisions, when read in
conjunction, support the department of health’s interpretation. Ohio Adm.Code
3701-53-09(D) indicates that individuals qualified to use the Intoxilyzer 8000
machine are referred to as operators, and that such operators shall be issued access
cards to perform breath tests. Ohio Adm.Code 3701-53-07 provides qualifications
for the issuance of either operator permits or senior operator permits; it categorizes
the issuance of permits into these two groups, rather than by the type of machine
being operated. Since users of the Intoxilyzer 8000 machine are operators, reason
dictates that they would be issued, if the required qualifications are met, operator
permits under Ohio Adm.Code 3701-53-07(E). It is a reasonable interpretation of
these provisions that the access card referenced in Ohio Adm.Code 3701-53-09(D) is
the type of permit issued to an operator of an Intoxilyzer 8000 machine under Ohio
Adm.Code 3701-53-07(E).
{¶15} This interpretation prevents the severe and unreasonable effect that
would result from the trial court’s ruling, which would be the exclusion of any breath
test administered on an Intoxilyzer 8000 machine. And it gives effect to the intent of
7 OHIO FIRST DISTRICT COURT OF APPEALS
the legislature and the department of health, namely, to have qualified operators of
the Intoxilyzer 8000 be issued access cards so that they may conduct breath tests on
the machine, and to have the results of those tests be admissible in a prosecution
under R.C. 4511.19.
{¶16} Because the department of health has promulgated the necessary
requirements for an operator of the Intoxilyzer 8000 to be issued the access card
required to use that machine, we hold that the trial court erred in granting
McMahon’s motion to suppress on that ground. The city’s assignment of error is
sustained, and the judgment of the trial court is reversed. This cause is remanded for
further proceedings consistent with the law and this opinion.
Judgment reversed and cause remanded.
DINKELACKER and DEWINE, JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.