State v. Spangler

599 N.E.2d 863, 75 Ohio App. 3d 530, 1992 Ohio App. LEXIS 2422

• Court: Ohio Court of Appeals
• Decided: May 6, 1992
• Docket: No. 4-91-10.
• Status: Published

Opinions

Thomas F. Bryant, Judge.

This is an appeal by plaintiff-appellant, state of Ohio (“state”), from a judgment of the Defiance Municipal Court, granting defendant-appellee Ernest Spangler’s motion to suppress evidence.

On February 25, 1991, at approximately 2:30 a.m., an Ohio State Highway Patrol (“Highway Patrol”) officer observed Spangler driving his vehicle in an erratic manner. The officer stopped Spangler and, after questioning him and conducting sobriety field tests, placed Spangler under arrest for driving under the influence of alcohol in violation of R.C. 4511.19(A)(1) and (3). Spangler was also charged with operating a motor vehicle left of center in violation of R.C. 4511.25 and failure to wear a safety belt in violation of R.C. 4513.263.

The officer transported Spangler to the Highway Patrol post to administer a breathalyzer test to ascertain whether Spangler’s blood-alcohol content (“BAC”) was higher than the legal limit of .10 grams of alcohol per 210 liters of his breath. The test produced a result of .154 grams of alcohol per 210 liters of his breath in violation of state law.

Thereafter, Spangler moved to suppress his statements made in consequence of his arrest, the opinion of the arresting officer, and also the BAC test result because the test instrument “was not in proper working order.” At the motion hearing, the parties stipulated that Spangler’s arrest was a warrantless arrest and that the state had the burden to prove probable cause to arrest Spangler in order to use the evidence obtained at the time of arrest. After the motion hearing, the trial court granted Spangler’s motion to suppress the BAC test results.

It is from this judgment that the state now appeals and assigns a single error.

Appellant’s assignment of error is:

“The trial court erred in finding that the appellant’s motion to suppress as it relates to the admissability [sic ] of the chemical test results was well taken, in that the state failed to meet its burden to establish that the BAC verifier instrument was not [sic ] in proper working order at the time of the test on this appellant, and that there had not [sic ] been substantial compliance with the Department of Health Regulations regarding the RFI survey.”

The state argues that the trial court erred prejudicially in granting Spangler’s motion to suppress the BAC test result and finding that the breathalyzer did not substantially comply with the Department of Health’s regulations concerning the required radio frequency interference (“RFI”) survey.

An RFI survey must, in certain circumstances, be conducted on the breathalyzer instrument to eliminate disruptive radio interference to ensure accurate test results. To achieve accurate results, the Department of Health has prescribed Ohio Adm.Code 3701-53-02(C)(2)(a), effective as amended May 5, 1990, which states:

“(2) A new RFI survey shall be conducted when:

“(a) The location of the breath testing instrument, when used for testing, is moved more than one foot in any direction[.]” (Emphasis added.)

The record discloses the following testimony on direct examination of the state’s witness-officer who administered the BAC test to Spangler:

“Q. Hand you what has been marked as State’s Exhibit Number Ten and ask you to identify that.

“A. Okay, this ah, here is the RFI survey that they do on the BAC Verifier.

(( * * *

“Q. And that is kept at the Highway Patrol Post with the BAC Machine?

“A. Right * * \

“Q. When was that survey performed?

“[Defense counsel]: Objection. Unless he has personal knowledge, otherwise, this document speaks for itself.

“Court: I’ll sustain the objection.

t( * * *

“Q. * * * [W]as the BAC at that same location as it was since that test was taken? Has it been moved since that test?

“A. Yeah, this — from the time that this RFI was performed, it has been moved, yes.

“Q. Okay, and when was that?

“A. When we moved into the new facility.”

The trial court, in its judgment entry granting Spangler’s motion to suppress the BAC result, stated the following:

“Based on the testimony and the evidence presented the court makes the following findings of fact, to-wit:

u * * *

“19. That a new R.F.I. survey was not performed on the B.A.C. Verifier after it was moved to the new O.S.P. Post building.

It * * *

“O.A.C. 3701-53-02(0) and Appendix G provides [sic] that a new RFI survey [shall be conducted] whenever breath testing instruments are moved. The State has failed to meet its burden to establish that the BAV [sic ] Verifier instrument was in proper working order at the time the breath test was administered and that there had been substantial compliance with the Dept, of Health regulations regarding the R.F.I. survey.”

In Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834, paragraph one of the syllabus, the court stated:

“In statutory construction, the word ‘may’ shall be construed as permissive and the word ‘shall’ shall be construed as mandatory unless there appears a clear and unequivocal legislative intent that they receive a construction other than their ordinary usage.”

Ohio Adm.Code 3701-53-02(C)(2)(a) uses the word “shall” in establishing when an RFI survey must be performed to ensure accurate results. In using the word “shall” and not “may” the administrative intent is clear and, therefore, the proper construction of the regulation mandatorily requires that a new RFI survey be performed on a breathalyzer when its location for testing “is moved more than one foot in any direction.” Ohio Adm.Code 3701-52-02(C)(2)(a).

Beyond dispute, the state has the burden to prove the admissibility of the BAC test result by showing that the breathalyzer was in proper working order. Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 72 O.O.2d 44, 330 N.E.2d 908.

Here, though Spangler’s motion was nonspecific, he based his motion to suppress the BAC result on the improper working order of the breathalyzer. The state initially introduced evidence that an RFI survey was conducted in accordance with the Department of Health regulations. However, the state then proceeded to examine concerning a change of the machine’s location, thus placing in issue the validity of the RFI survey in evidence as it related to the time the BAC test was administered to Spangler. These questions and the answers given are ambiguous, leaving the ambiguity to be resolved by the trier of fact.

The trial court concluded that the state had failed to meet its burden to establish that the breathalyzer used by the Highway Patrol in testing Spangler’s BAC was in conformity with regulation. The record does not show if the breathalyzer test was administered to Spangler prior to or after the Highway Patrol’s move to the new facility. However, the record does show that the Highway Patrol failed to conduct a new RFI survey upon that relocation.

Therefore, if Spangler’s breathalyzer test was administered in the new facility without a new RFI survey being conducted, the BAC result was susceptible, in an unknown degree, to radio frequency interference which necessarily reduces the accuracy of the test result and, thus, its probity as evidence. Here, after hearing the witnesses’ testimony, viewing their demeanor, and viewing the evidence adduced at the motion hearing, the trial court concluded that the state did not meet its burden of establishing substantial compliance with the Department of Health regulation which requires a mandatory RFI survey be conducted when the test instrument is moved more than one foot from its testing location. Based on its finding of fact, the trial court granted Spangler’s motion to suppress the BAC test result.

This court has previously stated in In re Cooper (Sept. 22, 1989), Seneca App. No. 13-88-34, unreported, 1989 WL 108730:

“The exhibits and testimony of the witnesses were presented to the court below who as the trier of fact had the responsibility of determining the credibility of the witnesses in relation to the circumstances of the case. * * * ” See, also, Bitonte v. Tiffin Savings Bank (1989), 65 Ohio App.3d 734, 585 N.E.2d 460.

Additionally, in Bowlin v. Black & White Cab Co. (1966), 7 Ohio App.2d 133, 36 O.O.2d 288, 219 N.E.2d 221, paragraph three of the syllabus, the court stated:

“Findings of fact by the trial court which heard the testimony and the appearance-point-of-view of the witnesses upon the controlling facts in the case will not be set aside where there is nothing in the record to show the court manifestly disregarded the weight of the evidence or violated any principle of law in making its findings or arriving at its conclusions.”

In State v. Apanovitch (1987), 33 Ohio St.3d 19, 25, 514 N.E.2d 394, 401, the court stated:

“A trial court has broad discretion in the admission and exclusion of evidence. Unless the trial court has clearly abused its discretion, an appellate court should not interfere in its determination.”

In Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142, the court said:

“The term ‘abuse of discretion’ was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169, 173, 404 N.E.2d 144, 149]:

“ ‘The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable. * * * ’ ” (Citations omitted.)

We hold that the trial court did not abuse its discretion in granting Spangler’s motion to suppress the BAC test result upon its finding that the state did not meet its burden to establish that the breathalyzer was in proper working order when the test was administered to Spangler. We must note that this holding does not encourage, nor do we approve, the filing of motions to suppress evidence on general, nonspecific grounds. See, e.g., Defiance v. Stafford (Feb. 7, 1992), Defiance App. No. 4-88-10, unreported, 1992 WL 24864. As announced by the Ohio Supreme Court in Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889, 892:

“ * * * [T]he prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search.

“The prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits. * * * Therefore, the defendant must make clear the grounds upon which he challenges the submission of evidence pursuant to a warrantless search or seizure. * * * Failure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal. * * *» (Citations omitted.) See, also, Crim.R. 47.

However, in the unique circumstances of the case at bar, the holding we reach is compelled by the controlling authorities cited.

Appellant’s single assignment of error is not well taken. Accordingly, the judgment of the Defiance Municipal Court is affirmed.

Judgment affirmed.

Hadley, P.J., concurs. Evans, J., dissents.