952 N.E.2d 586 (Ohio Mun. 2011), 2010 TRC 193606, State v. O'Dell

Docket Nº:2010 TRC 193606.
Citation:952 N.E.2d 586, 164 Ohio Misc.2d 36, 2011-Ohio-3946
Opinion Judge:BARROWS, Judge.
Party Name:The STATE of Ohio v. O'DELL.
Attorney:Ben Karrasch, Assistant City Prosecutor, for plaintiff. Luftman, Heck & Associates, Columbus, and Daniel J. Sabol, for defendant.
Case Date:April 12, 2011
Court:Municipal Court of Ohio
 
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Page 586

952 N.E.2d 586 (Ohio Mun. 2011)

164 Ohio Misc.2d 36, 2011-Ohio-3946

The STATE of Ohio

v.

O'DELL.

No. 2010 TRC 193606.

Franklin Municipal Court, Columbus, Ohio.

April 12, 2011

Ben Karrasch, Assistant City Prosecutor, for plaintiff.

Luftman, Heck & Associates, Columbus, and Daniel J. Sabol, for defendant.

BARROWS, Judge.

{¶ 1} Defendant, Gregory W. O'Dell, filed a motion to suppress evidence in this case, and a hearing on the motion was conducted on March 31, 2011.

{¶ 2} During that hearing, Trooper Thaxton testified. Thaxton was the arresting officer. He also has a senior operator's permit from the Ohio Department of Health, which qualifies him to administer a breath test on the BAC Datamaster, a breath-testing device approved by the Department of Health for measuring breath

Page 587

alcohol content in those suspected of operating a vehicle under the influence of alcohol. Trooper Thaxton, under the authority of his senior [164 Ohio Misc.2d 37] operator's permit, administered the breath test to Gregory W. O'Dell, the defendant in this case.

{¶ 3} During his testimony, Trooper Thaxton affirmed that the director of the department of health did not give him any self-study materials prior to the most recent renewal of his permit. He also testified that he hasn't taken any refresher courses relating to the BAC Datamaster.

{¶ 4} Ohio Adm.Code 3701-53-09(B) authorizes the issuance of operator's and senior operator's permits by the director of health. Ohio Adm.Code 3701-53-09(C) provides that those permits expire one year after their effective date. Ohio Adm.Code 3701-53-09(F) governs the process for renewal of an operator or senior operator permit:

(3) If the individual seeking a renewal permit currently holds an operator or senior operator permit, the permit holder shall have completed satisfactorily an in-service course for the applicable type of evidential breath testing instrument which meets the requirements of paragraph (B) of this rule, which includes review of self-study materials furnished by the director.

Paragraph (B) of this rule states:

The director of health shall issue permits to perform tests to determine 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 3701-53-07(D) sets forth the qualifying...

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