State v. Lake, 294.

• Decision Date: 24 January 2003
• Docket Number: No. 294.,294.
• Citation: 2003 Ohio 332,151 Ohio App.3d 378,784 N.E.2d 162
• Parties: The STATE of Ohio, Appellee, v. LAKE, Appellant.
• Court: Ohio Court of Appeals

784 N.E.2d 162

151 Ohio App.3d 378

2003 Ohio 332

The STATE of Ohio, Appellee, v. LAKE, Appellant.

No. 294.

Court of Appeals of Ohio, Seventh District, Noble County.

Decided January 24, 2003.

COPYRIGHT MATERIAL OMITTED

Clifford N. Sickler, Noble County Prosecuting Attorney, for appellee.

Paul E. Lake, pro se.

DeGENARO, Judge.

{¶ 1} This timely appeal comes for consideration upon the record in the trial court and the parties' briefs. Defendant-appellant, Paul E. Lake, appeals from the decision of the Noble County Court of Common Pleas denying his motion to suppress the results of his breath test, which established that his blood alcohol content ("BAC") was .170. We are asked to decide whether the state proved substantial compliance with the Ohio Department of Health's regulations concerning the calibration of the BAC testing device. We find that the state failed to prove substantial compliance with the regulations as the copies of the calibration solution certificates used to demonstrate substantial compliance were inadmissible pursuant to Evid.R. 1005. Thus, the trial court's decision is reversed, appellant's conviction is vacated and this case is remanded for further proceedings.

{¶ 2} State Highway Patrol Trooper Timothy Scott was driving southbound on State Route 339 in Noble County, Ohio, when he passed a vehicle with a loud exhaust moving in the opposite direction. He turned his vehicle around and proceeded to stop the other vehicle. After Trooper Scott approached the vehicle, he noticed that the driver, Lake, had red, glassy eyes and his speech was slow and quiet. Trooper Scott also smelled a strong odor of alcohol about Lake. He ordered Lake out of the vehicle, patted him down, and ordered Lake to perform the three accepted field sobriety tests, horizontal gaze nystagmus, walk-and-turn, and one-leg stand. Based on the results of those tests and his previous observations, Trooper Scott arrested Lake for driving under the influence of alcohol. Trooper Scott brought Lake to the local police department where he administered a breath test. Lake registered a .170.

{¶ 3} Subsequently, the Noble County Grand Jury issued an indictment charging Lake with DUI. The indictment contained a specification that Lake had been convicted of three other DUI offenses in the previous six years at the time of the offense, making this offense a felony of the fourth degree. Lake pled not guilty to the charges.

{¶ 4} After Lake was appointed counsel, he filed a motion to suppress, claiming that his breath test should be suppressed because the state could not prove that the machine used to conduct the test was properly calibrated in accordance with the Ohio Administrative Code. The trial court heard the motion to suppress. At the conclusion of the hearing, the state moved to admit its exhibits, including copies of two certificates which certified the solution used to calibrate the machines. The trial court allowed those documents into evidence over Lake's objections. After allowing the parties to file post-hearing briefs, the trial court denied Lake's motion to suppress.

{¶ 5} Subsequently, Lake entered a plea of no contest. The trial court found Lake guilty, sentenced him to six months in the Noble County jail, and fined him $800. The trial court also placed Lake on five years of community control, ordered the vehicle he used while committing the offense seized, and ordered his license suspended for five years.

{¶ 6} We reverse the trial court's decision which denied Lake's motion to suppress because the state failed to prove substantial compliance with the applicable regulations governing the calibration of the breath test machine. The state presented copies of the calibration solution certificates, but did not demonstrate their admissibility pursuant to Evid.R. 1005. Without these certificates, the state could not prove substantial compliance with the regulations. Thus, the results of the breath test should have been suppressed.

{¶ 7} As a preliminary matter, we note that Lake has properly preserved his arguments for appeal by pleading no contest to the charges against him. According to Crim.R. 12(I), a "plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence."

{¶ 8} In Lake's two assignments of error, he challenges the trial court's actions in relation to his motion to suppress the BAC breath test results as follows:

{¶ 9} "The trial court erred in admitting into evidence, at the suppression hearing, two instrument check solution documents which were not authenticated pursuant to the Ohio Rules of Evidence."

{¶ 10} "The trial court erred in denying Appellant's motion to suppress the BAC Datamaster test results when the State failed to produce proper evidence at the hearing of its compliance with the Ohio Department of Health Regulations for calibration of the machine."

{¶ 11} In his assignments of error, Lake argues that the trial court erred when it determined that the copies of the calibration solution certificates introduced into evidence were admissible as they did not comply with the Rules of Evidence. Because these documents were inadmissible, he argues, the state failed to prove compliance with the Ohio Department of Health's regulations and, therefore, the results of the BAC test were inadmissible.

{¶ 12} Appellate review of a motion to suppress presents mixed issues of law and fact. State v. Jedd (2001), 146 Ohio App.3d 167, 171, 765 N.E.2d 880. When conducting that review, appellate courts must accept a trial court's findings of fact if they are supported by competent, credible evidence. State v. Winand (1996), 116 Ohio App.3d 286, 288, 688 N.E.2d 9. Accepting those facts as true, we must then independently determine whether the trial court's decision met the applicable legal standard. State v. Santini (2001), 144 Ohio App.3d 396, 406, 760 N.E.2d 442. However, decisions dealing with the admissibility of evidence are left to the trial court's sound discretion. State v. Tibbetts (2001), 92 Ohio St.3d 146, 160, 749 N.E.2d 226. Unless the trial court clearly abused its discretion and the defendant has been materially prejudiced thereby, an appellate court should not disturb the trial court's decision. State v. Issa (2001), 93 Ohio St.3d 49, 64, 752 N.E.2d 904. An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144.

{¶ 13} R.C. 3701.143 authorizes the Department of Health to promulgate regulations concerning chemical analysis of a person's blood, urine, breath, or other bodily substances in order to ascertain the presence and amount of alcohol. Accordingly, the Department of Health has promulgated Ohio Adm.Code 3701-53-04 through 3701-53-09. It is incumbent upon the state to demonstrate compliance with those regulations before the results of a breath test given to an accused are admissible in evidence against a criminal defendant. State v. Pagan (Nov. 10, 1999), 7th Dist. No. 97 CA 80, at 2, 1999 WL 1029508. However, the state need only prove substantial compliance with the administrative regulations. State v. Plummer (1986), 22 Ohio St.3d 292, 294, 22 OBR 461, 490 N.E.2d 902. Once the state proves substantial compliance, then the defendant has the burden of proving prejudice by less than literal compliance. Id. at 295, 22 OBR 461, 490 N.E.2d 902.

{¶ 14} Ohio Adm.Code 3701-53-04(A) requires that the breath testing machine be calibrated "no less frequently than once every seven days" by using "an instrument check solution containing ethyl alcohol approved by the director of health." In order to demonstrate that the instrument check solution used to calibrate the machine was approved by the director of health, the director must produce a document certifying that the solution used to calibrate the machine was proper. Columbus v. Robbins (1989), 61 Ohio App.3d 324, 328, 572 N.E.2d 777. In order to comply with this requirement, the state commonly produces a "batch and bottle affidavit" or a properly authenticated calibration solution certificate. Pagan at 2.

{¶ 15} "The admission of this affidavit or authenticated certificate demonstrates that the breath testing equipment was calibrated in substantial compliance with the applicable Department of Health regulations and assures the accuracy of the breath test results. City of Columbus v. Carroll ([Aug. 27] 1996), Franklin App. No. 96APC01-90, unreported . The importance of this point cannot be overstated since the accuracy of the test results is a critical issue in determining the guilt or innocence of the defendant. Defiance v. Kretz (1991), 60 Ohio St.3d 1, 3 . Conversely, when there is no properly authenticated certificate or an affidavit regarding the viability of the calibration solution, substantial compliance with the regulations is not proven and the results of the breath test must be excluded. State v. Bauer (September 13, 1996), Ottawa App. No. OT-95-050, unreported , citing Robbins, supra at 328 ." Pagan at 3.

{¶ 16} Evid.R. 901(A) states that all evidence must be properly authenticated before it is admissible into evidence. Authentication lays the foundation for admissibility by connecting the particular evidence sought to be introduced to the issues or persons involved in the trial. Staff Note to Evid.R. 901(A). Exhibits are properly authenticated when there is evidence sufficient to support a finding that the matter in question is what the proponent claims. Hall v. Johnson (1993), 90 Ohio App.3d 451, 455, 629 N.E.2d 1066. Authenticity is normally demonstrated by extrinsic evidence unless the evidence is self-authenticating as provided in Evid.R. 902. For example, an original calibration solution certificate is...