961 N.E.2d 276 (Ohio Mun. 2011), 11TRC03170, State v. Hudepohl

Docket Nº:11TRC03170.
Citation:961 N.E.2d 276, 166 Ohio Misc.2d 1, 2011-Ohio-6917
Opinion Judge:WILLIAM A. GRIM, Judge.
Attorney:Lisa A. Eliason, Athens Chief City Prosecutor, for plaintiff. K. Robert Toy, Canton, for defendant.
Case Date:July 15, 2011
Court:Municipal Court of Ohio

Page 276

961 N.E.2d 276 (Ohio Mun. 2011)

166 Ohio Misc.2d 1, 2011-Ohio-6917




No. 11TRC03170.

Athens County Municipal Court, Ohio.

July 15, 2011

Page 277

Lisa A. Eliason, Athens Chief City Prosecutor, for plaintiff.

K. Robert Toy, Canton, for defendant.


[166 Ohio Misc.2d 2] {¶ 1} This matter came on for consideration of defendant's motion to suppress and the stipulated facts. Defendant was represented by her attorney, K. Robert Toy; the state of Ohio was represented by Lisa A. Eliason, Athens Chief City Prosecutor.


{¶ 2} Defendant was arrested for OVI by Ohio Highway Patrol Trooper Ward on May 15, 2011. She was given an evidential breath test by Trooper Ward on a BAC Datamaster on that date with a result of 0.134g/210L. At the time of that test, Trooper Ward held both a senior operator permit under Ohio Adm.Code 3701-53-09(B) for the BAC Datamaster and an operator-access card for the Intoxilyzer 8000 under Ohio Adm.Code 3701-53-09(D).


{¶ 3} Ohio Adm.Code 3701-53-09(D) directs:

Individuals holding operator access cards issued under this rule shall use only those evidential breath testing instruments for which they have been issued an operator access card.

Does the above language disqualify officers from operating BAC Datamasters after they have been issued operator-access cards for the Intoxilyzer 8000?


{¶ 4} This appears to be a matter of first impression, with neither party citing any case law directly on point. Defendant submits that as a matter of statutory interpretation, the regulation must be strictly construed against the state and liberally construed in favor of the accused. The state of Ohio submits that the regulation should be interpreted to implement its apparent intention.

{¶ 5} This is not a question of substantial compliance; Trooper Ward's training and accreditation for both the BAC Datamaster and the Intoxilyzer 8000 are stipulated. It is a matter of defining the standard created by the regulation. While it is an administrative regulation in question, the court does find the rules of construction found in R.C. 2901.04 to be helpful.

{¶ 6} Paragraph (A) of the above section reads as follows:

[166 Ohio Misc.2d 3] Except as otherwise provided in division (C) or (D) of this section, sections of...

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