Criminal Appeal From: Hamilton County Municipal Court, TRIAL NO. 11TRC-57873-A
John P. Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and Marva K. Benjamin, Senior Assistant Prosecutor, for Plaintiff-Appellant.
Suhre & Associates, LLC, and Robert Healey, for Defendant-Appellee. Please note: this case has been removed from the accelerated calendar.
(¶1} Plaintiff-appellant the city of Cincinnati appeals the trial court's judgment granting defendant-appellee Roger Lambert's motion to suppress the results of a breath-alcohol test pursuant to Lambert's arrest for operating a vehicle while under the influence of alcohol or drugs ("OVI") in violation of R.C. 4511.19(A). Because we determine that the trial court erred in suppressing the results, we reverse.
Factual Background and Procedural Posture
(¶2} In November 2011, Lambert was stopped by an Ohio State Highway patrol officer after the officer observed Lambert's vehicle swerve left of center. As a result of the traffic stop, Lambert was placed under arrest for OVI. The officer then took Lambert to Cincinnati Police District One where Lambert submitted to a breath-alcohol test using an Intoxilyzer 8000 instrument. Lambert was charged, in part, with operating a motor vehicle while under the influence of alcohol in violation of R.C. 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).
(¶3} Lambert filed a motion to suppress all evidence stemming from his arrest, including the results of his breath-alcohol test. Pertinent to this appeal, Lambert argued in his motion to suppress that his test results were inadmissible because: (1) the dry gas control test for the Intoxilyzer 8000 instrument on which he was tested was not performed prior to and subsequent to every subject test, and (2) an instrument certification was not made when the instrument was placed in service. The trial court conducted a lengthy hearing on the motion, and, in addition to the arresting officer's testimony, Michael Quinn, an employee of the Ohio Department of Health ("ODH"), and Mary Martin, a program administrator for ODH, also testified.
(¶4} Quinn testified that he had conducted a certification of the instrument used on Lambert on June 21, 2011, in Columbus, and that he had installed and had placed the instrument in service on June 23, 2011, after the instrument had passed an additional diagnostic test at District One. Martin testified in regards to the instrument testing procedure. She testified that the instrument begins with an air blank, then does a diagnostic, another air blank, the first dry gas control, another air blank, the first subject sample, two more air blanks, the second subject sample, another air blank, the second dry gas control, and finally an air blank. She also testified that the ODH recently changed its terminology to "subject sample" instead of "subject test."
(¶5} The trial court concluded that the officer had had probable cause to arrest Lambert for OVI, but the trial court suppressed the results of the breath-alcohol test for failure to comply with ODH regulations. In suppressing the results, the trial court determined that the dry gas control test for the Intoxilyzer 8000 instrument had not been performed prior to and subsequent to each subject test as required by Ohio Admin.Code 3701-53-04. The trial court also determined that the instrument certification had not been done in accordance with Ohio Admin.Code 3701-53-04 because Quinn had "calibrated" the instrument in Columbus, and because "no calibration process" had occurred at the time the instrument had been installed at District One.
(¶6} The city now appeals, arguing that the trial court erred by suppressing Lambert's breath-alcohol test results.
Standard of Review
(¶7} Appellate 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.
(¶8} When a defendant challenges the admission of a breath-alcohol test by filing a motion to suppress, 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. Booth, 1st Dist. Hamilton No. C-070184, 2008-Ohio-1274, ¶ 7. Then, the burden shifts back to the defendant to ...