State v. Cloud, s. 91-TRC-02130

• Decision Date: 15 April 1991
• Docket Number: Nos. 91-TRC-02130,91-TRC-02130B,s. 91-TRC-02130
• Parties: The STATE of Ohio, v. CLOUD. *
• Court: Ohio Court of Common Pleas

Page 87

61 Ohio Misc.2d 87

573 N.E.2d 1244

The STATE of Ohio, v. CLOUD. ^*

Nos. 91-TRC-02130A, 91-TRC-02130B.

Hamilton County Municipal Court, Ohio.

Decided April 15, 1991.

Karla J. Burtch, Asst. City Prosecutor, for plaintiff.

Robert L. Cloud, Cincinnati, for defendant.

MARK PAINTER, Judge.

Defendant, James Cloud, seeks to suppress evidence obtained following his arrest for operating a motor vehicle while under the influence of alcohol. Defendant's motion addresses two issues: whether the radio frequency interference ("RFI") survey was properly performed on the intoxilyzer instrument, and whether there was probable cause for his arrest.

The court requested memoranda from both parties at the time it took this matter under submission. While defendant filed a comprehensive brief, the city of Cincinnati chose to stand on oral arguments made at the hearing on the motion to suppress.

The facts of this case are mostly undisputed. On January 6, 1991, Cincinnati Police Officer Kevin York drove to defendant's residence in response to a radio broadcast of alleged domestic violence. The source responsible for the police being summoned to the residence has not been made clear. As Officer York approached the residence, he observed defendant backing out of the driveway. Officer York followed defendant for approximately one-half mile, noted no improper driving, and then signaled for him to pull over. Defendant pulled over and Officer York watched while defendant exited and walked to the rear of his vehicle. The officer then asked defendant to place his hands on his vehicle, patted defendant down for weapons, handcuffed him and placed him in the police cruiser for questioning. All of this activity, according to Officer York's testimony, was completed in the rain.

At the hearing on the motion to suppress, Officer York testified that during his questioning of defendant he noted a "strong odor of alcohol." He also testified that defendant's eyes were watery and bloodshot, defendant stuttered and appeared nervous and admitted to having had some beers. In his intoxication report, Officer York failed to note the odor as "strong" or the eyes as bloodshot.

About the time that defendant was handcuffed, Officer York received radio communication that defendant's wife had not wished to proceed with a domestic violence complaint and had told the officer who had spoken with her to go away. Officer York then arrested defendant for driving under the influence and took him to the station for an intoxilyzer test. After completing the intoxilyzer test, Officer York administered several field sobriety tests to defendant. Defendant was subsequently charged with violating R.C. 4511.19(A)(1) and (3).

On February 21, 1991, the court heard defendant's motion to suppress evidence. The motion was based on defendant's contention that the evidence was obtained as a result of an unlawful arrest. Defendant claimed that the arrest was unlawful because Officer York lacked the requisite probable cause. Defendant also claimed that the intoxilyzer test results could not be admitted in any case because the RFI survey performed on the intoxilyzer was improper.

At the hearing on the motion to suppress, the state introduced into evidence the most recent three-page RFI survey which had been performed on the intoxilyzer on May 5, 1990. Officers Robinson and Ward had conducted the survey and both testified at the hearing to having conducted it according to the directions contained on a form which showed a printing date of September 1986. When asked why the officers had not used the new regulations and forms, as required by the Director of Health for surveys taken at that date, the officers testified that they had not had the new forms available. Officer Robinson indicated that he had called the Department of Health and was told by some unnamed bureaucrat that the new forms were "at the printer" and not yet available. This same bureaucrat advised the officer to conduct the survey using the old form. The officers further stated that, although the new regulations and forms had become available sometime after May 5, 1990, they did not perform a subsequent RFI survey in accordance with the new regulation.

Radio Frequency Interference Survey

"[T]he state has the ultimate burden of persuasion on a pretrial motion to suppress the results of an intoxilyzer test of an individual believed to have violated R.C. 4511.19(A), and must demonstrate that the test was conducted in accordance with the applicable law." State v. Fley (Dec. 14, 1988), Hamilton Cty. M.C. No. C-87TRC-35650B, unreported, 1988 WL 133000. The law applicable in this case was the Ohio Adm.Code 3701-53-02(C), which was amended effective May 5, 1990 to read, in pertinent part, as follows: " * * * RFI surveys performed on and after the effective date of this amendment shall be performed in accordance with the instructions on the form set forth in appendix H to this rule. * * * " Although the officers in the present case conducted the RFI survey on May 5, 1990, they did not use the form required by the amended regulation. Also, when they did obtain the new forms and instructions, they did not perform any new RFI survey.

The officers unarguably failed to literally comply with the applicable regulations, but this does not mean that the results of the intoxilyzer test are necessarily inadmissible. In State v. Plummer (1986), 22 Ohio St.3d 292, 294, 22 OBR 461, 463, 490 N.E.2d 902, 905, the Ohio Supreme Court noted that "strict compliance is not always realistically or humanly possible." In Plummer, the appellant contended that the results of his urine-alcohol test were inadmissible at his trial for driving under the influence because the state had failed "to comply with the literal requirements of the administrative regulation regarding refrigeration of a urine specimen." The court upheld the appellant's conviction based on the admission of the results of the test because the state had "substantially complied" with the regulation and the appellant had not "been prejudiced in any way by the state's failure to comply with the literal requirements * * *." Id. at 295, 22 OBR at 464, 490 N.E.2d at 905. Though this court believes that the "substantial compliance" doctrine of Plummer should be very narrowly applied, this case is surely one where it is applicable.

In this case, defendant cites State v. Fley, supra, for the proposition that the "substantial compliance" doctrine has been applied more stringently in RFI cases. In Fley, the court addressed the results of a test taken on an intoxilyzer which should have been surveyed under Ohio Adm.Code 3701-53-02, as effective January 1, 1987, but had instead been surveyed under a prior regulation. The court found "the 1987 provisions for testing intoxilyzers * * * [to be] mandatory" and granted the appellant's motion to suppress the results of the test.

The court in Fley did not even mention the "substantial compliance" doctrine. The court instead noted that the provisions which were added in 1987 "set forth a more exact and reliable method of 'surveying' intoxilyzers * * * to assure noninterference by radio transmissions." The 1987 amendments were designed to guarantee to the appellant a more accurate test. Fley held that they had not been complied with at all so there was no question of "substantial compliance."

The amendment in the present case, which was effective on May 5, 1990, concerned, in large part, slight changes to the form on which the results of the survey were to be recorded. From the evidence adduced in the present case, this court finds that the differences in the manner that the RFI surveys were actually conducted, as required by the different forms, were at best inconsequential. To suppress the results of the test solely for the reason that the officers used an old form which was substantially similar to the new one, which was not yet available, would surely be to elevate form over substance since the use of the old form did not prejudice defendant. Like the appellant in Plummer, 22 Ohio St.3d at 295, 22 OBR at 464, 490 N.E.2d at 905, defendant in this case "has not demonstrated that this failure even affected the results of his * * * [test], much less that any failure to comply resulted in error detrimental to him." (Footnote omitted.)

Probable Cause

There were several distinct steps which led to defendant's arrest on January 6, 1991. First, Officer York stopped defendant in response to an allegation of domestic violence. Second, upon learning that the domestic violence allegation was not to be pursued, Officer York arrested defendant for driving under the influence. The legality of the initial stop was not contested by defendant.

At issue is whether Officer York had probable cause to arrest defendant for driving under the influence once he had received information that defendant's wife did not wish to proceed with a domestic violence complaint. The United States Supreme Court noted the importance of the timing of the steps of an arrest in Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145, 31 O.O.2d 80, 81. In Beck, the court stated that the constitutionality of an arrest depends "upon whether, at the moment the arrest was made, the officers had probable cause to make it * * *." The court defined the test for probable cause for arrest to be "whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Id. In State v. Finch (1985), 24 Ohio App.3d 38, 39-40, 24 OBR 61, 63, 492 N.E.2d 1254, 1256, the court applied this test to "drunken driving" arrests and held that there existed "probable cause for the arrest if the facts and circumstances within * * * [the officer's] knowledge were sufficient to cause a prudent person to...