967 N.E.2d 292 (Ohio Mun. 2012), 2011 TRC 145779, State v. Castle

Docket Nº:2011 TRC 145779.
Citation:967 N.E.2d 292, 168 Ohio Misc.2d 6, 2012-Ohio-1937
Opinion Judge:BRANDT, Judge.
Party Name:The STATE of Ohio, v. CASTLE.
Attorney:Richard C. Pfeiffer Jr., Columbus City Attorney, and Orly Ahroni, Assistant City Prosecuting Attorney, for plaintiff. Cleve Johnson, Columbus, for defendant.
Case Date:April 24, 2012
Court:Municipal Court of Ohio

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967 N.E.2d 292 (Ohio Mun. 2012)

168 Ohio Misc.2d 6, 2012-Ohio-1937

The STATE of Ohio,



No. 2011 TRC 145779.

Franklin County Municipal Court, Columbus, Ohio.

April 24, 2012

Page 293

Richard C. Pfeiffer Jr., Columbus City Attorney, and Orly Ahroni, Assistant City Prosecuting Attorney, for plaintiff.

Cleve Johnson, Columbus, for defendant.

BRANDT, Judge.

[168 Ohio Misc.2d 7] {¶ 1} This matter is before the court for decision on a limited legal question raised as part of defendant's motion to suppress, which was filed on his behalf by his counsel of record. For the reasons set forth herein, defendant's argument is found well taken, and the motion is granted in part.

{¶ 2} On July 3, 2011, defendant, Floyd T. Castle, was arrested and charged with multiple offenses, including operating a motor vehicle while under the influence of alcohol (" OVI" ) under both R.C. 4511.19(A)(1)(a) and (d). Trooper Rustun K. Schack administered a chemical breath test using the BAC Datamaster. At the time he administered the test, Trooper Schack had been issued both a senior-operator permit to administer breath tests on the BAC Datamaster and an operator-access card to administer breath tests on the Intoxilyzer 8000.

{¶ 3} Defendant filed his motion to suppress on August 12, 2011. The state filed a memorandum contra on September 30, 2011, and a supplemental memorandum contra on February 24, 2012. The limited question before the court at this time is whether the issuance of an operator-access card under Ohio Adm.Code 3701-53-09(D) prohibits the operator from thereafter performing chemical breath tests on any chemical-breath-testing instrument for which the operator has also been issued either an operator or senior-operator permit under Ohio Adm.Code 3701-53-09(B). The parties have filed their briefs and stipulations of fact on the identified legal question, and this matter is decisional.

{¶ 4} Ohio Adm.Code 3701-53-09(D) states:

Individuals desiring to function as operators using instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code shall apply to the director of health for operator access cards on forms prescribed and provided by the director of health. The director of health shall issue operator access cards 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. Individuals holding operator access cards [168 Ohio Misc.2d 8] issued under this rule shall use only those evidential breath testing instruments for which they have been issued an operator access card.

{¶ 5} Defendant focuses on the last sentence of the regulation to argue that once an individual obtains an operator-access card, that individual is precluded from operating any other breath-testing instrument, including those for which the individual may hold a permit under Ohio Adm.Code 3701-53-09(B). Defendant claims that the language of the regulation is plain and unambiguous and concludes that the court must apply the language and suppress the results obtained from the BAC Datamaster.

{¶ 6} In response, the state contends that the entire regulation must be read to give effect to the legislative intent. By reading all of Ohio Adm.Code 3701-53-09 in pari materia, the state argues that Trooper Schack was authorized to administer chemical breath tests using either the Intoxilyzer 8000 or the BAC Datamaster. The state primarily relies on State v. Hudepohl, 166 Ohio Misc.2d 1, 2011-Ohio-6917, 961 N.E.2d 276 (M.C.), in which the

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court considered the same issue and determined...

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