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State v. Consolo

Court of Appeals of Ohio, Eleventh District

June 17, 2013

STATE OF OHIO, Plaintiff-Appellant,
v.
WILLIAM F. CONSOLO, Defendant-Appellee.

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No. R2011 TRC 16608.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellant).

Edwin R. O'Day, and Joseph C. Patituce, Patituce & Associates, LLC, (For Defendant-Appellee).

OPINION

DIANE V. GRENDELL, J.

{¶1} Plaintiff-appellant, the State of Ohio, appeals the August 30, 2012 Journal Entry of the Portage County Municipal Court, Ravenna Division, suppressing the defendant-appellee, William F. Consolo, Jr.'s breath test results. The issues before this court are whether the State bears the burden of producing evidence of the general, scientific reliability of the Intoxilyzer 8000 when challenged in a motion to suppress; whether the Ohio Administrative Code requires a dry gas control between subject tests; and whether the alleged alteration of Consolo's breath test results by the Ohio Department of Health on its website is reason to suppress the results. For the following reasons, we reverse the decision of the court below.

{¶2} On December 19, 2011, the Streetsboro Police Department issued Consolo a traffic ticket, charging him with OVI, a misdemeanor of the first degree in violation of R.C. 4511.19(A)(1)(a) (driving under the influence of alcohol) and (d) (driving with a prohibited breath alcohol concentration), and with violating the Approaching a Stopped Emergency Vehicle statute, a minor misdemeanor in violation of R.C. 4511.213.

{¶3} On December 23, 2011, Consolo entered a plea of not guilty.

{¶4} On February 21, 2012, Consolo filed a Motion to Suppress, seeking, inter alia, to suppress the breath test results of the Intoxilyzer 8000. As grounds for suppression, Consolo argued that the breath test was not conducted in accordance with the regulations of the Ohio Department of Health as set forth in Chapter 3701-53-02 of the Ohio Administrative Code, and the Intoxilyzer 8000 was determined by the municipal court to be unreliable in State v. Johnson, Portage County Municipal Court, Ravenna Division, Case No. R 2011 TRC 4090.

{¶5} On May 11, 2012, Consolo filed a Supplement to Motion to Suppress, arguing, as an additional reason to suppress the breath test results, that the samples were not taken in accordance with Ohio Adm.Code 3701-53-04(B), which requires "a dry gas control test before and after every subject test."

{¶6} On August 29, 2012, a suppression hearing was held. Mary Martin, the Program Administrator for Alcohol and Drug Testing at the Ohio Department of Health, testified on behalf of the State. Martin testified that she was trained in the operation of the Intoxilyzer 8000 by the manufacturer, and is responsible for developing regulations for its use.

{¶7} Martin explained that a "dry gas control" is a "known mixture of ethanol * * * that has a known target value[.] * * * If the instrument can read the dry gas control within an appropriate range * * * that shows that the instrument is in proper working order."[1] m With respect to Ohio Adm.Code 3701-53-04(B), Martin testified that "there is one dry gas control at the beginning of the subject test and one at the end of the subject test."

{¶8} Consolo's Subject Test Report was introduced into evidence. The Report contained the following Test Information:

Test

BrAC (g/210L)

Time

Air Blank

0.000

02:57

Diagnostic

VAC/OK

02:57

Air Blank

0.000

02:58

Dry Gas Control

0.100

02:58

Air Blank

0.000

02:58

Subject Test 1

0.162

03:00

Air Blank

0.000

03:00

Air Blank

0.000

03:03

Subject Test 2

0.146

03:03

Air Blank

0.000

03:04

Dry Gas Control

0.100

03:04

Air Blank

0.000

03:05

{10} Martin testified that the term "subject test, " as used in Ohio Adm.Code 3701-53-04(B), is undefined. According to Martin, a subject test "is basically the whole document, " i.e., the Subject Test Report, and not Subject Tests 1 and 2 contained within the Report. Thus, only two dry gas control tests are required and it is not necessary to perform dry gas controls between Subject Test 1 and Subject Test 2. Martin's understanding of what constitutes a "subject test" for the purposes of Ohio Adm.Code 3701-53-04(B) is consistent with the Bureau of Alcohol and Drug Testing's training manual for the Intoxilyzer 8000.

{¶11} Martin further testified that Subject Tests 1 and 2 are readings of actual breath samples taken from the test subject, i.e., Consolo. She testified that "you have to have two subject samples to have a valid subject test, " and that "the lower of the two [is] the chargeable per se level."

{¶12} Finally, Martin testified that, because of confusion as to whether the subject test contained in Ohio Adm.Code 3701-53-04(B) referred to the Subject Test Report or Subject Test 1 and 2, she changed the wording in the Report. The terms Subject Test 1 and Subject Test 2 were replaced with Subject Sample 1 and Subject Sample 2. Although Consolo's Subject Test Report, generated on December 19, 2011, contains the terms Subject Test 1 and 2, the Subject Test Report posted on the Ohio Department of Health's website uses the terms Subject Sample 1 and 2.[2] The BrAC readings are the same on both Test Reports.

{¶13} On August 30, 2012, the municipal court issued a Journal Entry, granting Consolo's Motion to Suppress with respect to the breath test results produced by the Intoxilyzer 8000. Relying on the Johnson decision, the court held that, "when a defendant raises a general, scientific attack on the reliability of the Intoxilyzer 8000, it is the State's burden to produce certain evidence to convince the Court that the results from the Intoxilyzer 8000 are scientifically reliable, credible and competent evidence." Since the State did not produce such evidence, the breath test results would not be admitted at trial.

{¶14} The municipal court further held that Ohio Adm.Code 3701-53-04(B) "is clear and is not ambiguous in any way, " and that it required a dry gas control to be performed before and after every subject test. Since there was no dry gas control performed between Subject Test 1 and Subject Test 2, the breath test results would not be admitted at trial.

{¶15} Finally, the municipal court found that "the Ohio Department of Health has unilaterally changed the records of ...


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