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State v. Flege

Court of Appeals of Ohio, Second District

May 4, 2007

STATE OF OHIO Plaintiff-Appellee
v.
JOEL FLEGE Defendant-Appellant

Criminal Appeal from Municipal Traffic Court Trial Court Case No. 06-TRC-4126

ROBERT FARQUHAR, Atty, Reg. #0018222, and DENNIS J. ADKINS, Atty, Reg. #0034488, Altick & Corwin Co. Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. #0067020, and JOHN H. RION, Atty. Reg. #0002228, Rion, Rion & Rion, LPA, Inc. Attorney for Defendant-Appellant

OPINION

FAIN, J.

{¶ 1} Defendant-appellant, Joel Flege, appeals from his conviction and sentence for OMVI. He contends that the trial court erred by overruling his motion to suppress the results of an alcohol breath test examination, because the State failed to present evidence sufficient to overcome his claim that the Beavercreek Police Department did not operate the testing machine in compliance with the requirements of the Ohio Administrative Code.

{¶ 2} We conclude that the State presented evidence upon which a reasonable finder of fact could conclude that the test was performed appropriately. Accordingly, the judgment of the trial court is affirmed.

I

{¶ 3} Beavercreek Police Officer Sean Williams was on patrol in his cruiser when he noticed a vehicle speeding. Williams followed the vehicle, and saw it run a stop sign. Williams initiated a traffic stop during which he noticed a strong odor of alcohol on the driver, later identified as Flege. Williams testified that Flege, who admitted that he had been drinking, had red eyes and "stuttered" and "slurred" speech.

{¶ 4} Williams then conducted a series of field sobriety tests including the horizontal gaze nystagmus ("HGN"), the one-legged stand, and the walk and turn tests. Flege failed all three tests. On the HGN, Flege was assigned the maximum of six points, four points being considered an indication of intoxication. In regard to the one-legged stand test, Flege was unable to stand on one foot, and he skipped numbers as he was counting. Finally, Flege was unable to remain standing on the line as Williams explained the walk and turn test. During the test, Flege used his arms for balance, was unable to place one foot in front of the other as instructed, and twice stepped off the line. Williams then arrested Flege. After being informed of his rights, Flege admitted to having consumed two beers and a glass of whiskey.

{¶ 5} Flege was transported to the Beavercreek Police Station where he was observed for twenty minutes. Thereafter, Officer David Majercak administered a Breathalyzer examination. The Breathalyzer registered Flege's breath-alcohol level at .101.

{¶ 6} Flege filed a motion to suppress the result of the Breathalyzer examination. In the motion, Flege argued that he was not observed for twenty minutes prior to undergoing the test and that the test was not timely administered. He further argued that the test was not administered by a qualified senior operator, as required by Ohio Administrative Code §3701-53-07(D). Flege also claimed that the machine had not been properly calibrated and that the radio frequency interference detector (RFI) was not properly verified. Finally, he claimed that the alcohol-based solution used to calibrate the machine was neither properly stored nor timely used.

{¶ 7} At the hearing on Flege's motion to suppress, Officer Majercak testified that he is a qualified senior operator of the BAC Datamaster Breathalyzer machine. He further testified that Flege was stopped at 12:20 a.m. by Officer Williams, and that the breath test was performed at 1:54 a.m., well within the two-hour time frame required for the test. He testified that he personally observed Flege for twenty minutes prior to administering the test. Majercak testified that he was familiar with Ohio Department of Health rules and regulations regarding the Breathalyzer and its maintenance. Majercak testified that he was familiar with the regulation requiring that the machine be calibrated within seven days prior to, and after, a test. He testified that the department keeps a rotation list for officers who are required to perform the calibration checks. He testified that he reviewed the log book to ensure that the machine calibrations had been timely performed. According to Majercak, the log book is kept in the testing area. He testified that the log book indicated that the calibrations were up to date and that the proper form had been signed by a senior qualified operator. Majercak testified that he checks that particular form prior to performing breath tests. Majercak testified that the alcohol solution used to calibrate the machine was not expired because the expiration date set forth on the bottle had not run. He further stated that the solution is properly stored in a refrigerator at the police station. He testified that department protocol required returning the solution to the refrigerator after using it on the machine. Majercak testified that he detected no problems with the machine or the RFI detector. Finally, he testified that the machine went through an internal check before and after Flege's sample was taken. That check causes the machine to beep and produce a blank test if RFI is detected. In this case, there was no indication of RFI.

{¶ 8} In denying the motion to suppress, the magistrate made the following findings:

{¶ 9} "As to the Breathalyzer test, I'm finding that based on how the Motion to Suppress was phrased, that the State has met its burden. I'm finding that Form 2255 was read to the Defendant by Officer Williams. Defendant consented to the test. He was observed 20 minutes continuously by both Officer Majercak, as well as Officer Williams, prior to administering the test. Defendant did not ingest anything into his mouth during that 20-minute time. Finding that the Defendant was stopped at approximately ...


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