State v. McNamara, 97

Citation124 Ohio App.3d 706,707 N.E.2d 539
Decision Date23 December 1997
Docket NumberNo. 97,97
PartiesThe STATE of Ohio, Appellant, v. McNAMARA, Appellee. CA 16.
CourtUnited States Court of Appeals (Ohio)

Lisa A. Eliason, Athens City Prosecutor, Athens, for appellant.

Thomas Hodson, Athens, for appellee.

KLINE, Judge.

The state of Ohio appeals from the judgment of the Athens County Municipal Court suppressing evidence of a breath-alcohol-content test administered to Colleen McNamara. The state alleges that the trial court erred by finding that Athens Police Department ("APD") radios were within thirty feet of the breath-alcohol-content testing instrument. We disagree because the record contains substantial evidence supporting the trial court's findings. The state also asserts that the trial court should have denied McNamara's motion because she did not present evidence of radio traffic during her test. We disagree because McNamara presented sufficient evidence upon which the trial court could conclude that the APD radios were used during McNamara's test. Accordingly, we affirm the judgment of the trial court.

I

Athens City Police Officer Jeffery McCall arrested McNamara for allegedly operating a motor vehicle while under the influence of alcohol ("OMVI") in violation of R.C. 4511.19(A)(1) and (3). Officer McCall transported McNamara to the Ohio State Highway Patrol Post for breath testing and parked his cruiser one or two spots away from the handicap spot in the post's parking lot. Officer McCall then entered the building, leaving his CB radio, the patrol car radio, and his cellular telephone in the "on" position in his cruiser.

Inside the building, Officer McCall saw the sign reminding officers that hand-held radios are not permitted in the room where breath-alcohol testing is conducted. At the suppression hearing he testified that, upon reading the sign, he always turns his radio off and leaves it at the front desk. However, Officer McCall could not specifically recall where he put his radio or whether he turned it off during McNamara's test.

McNamara's test, administered by a senior operator on a BAC Datamaster breath-analysis machine, indicated that she had consumed alcohol in excess of the legal limit. McNamara moved to suppress the test results, alleging that the results were presumptively inaccurate because APD radios, which had never been tested against the Ohio State Highway Patrol's BAC Datamaster for potential radio frequency interference, were in use within thirty feet of the BAC Datamaster during her test.

Each party has identified testimony from the suppression hearing regarding the distance between the BAC Datamaster and the police cruiser in which the state concedes that three untested radios were left in the "on" position. The testimony of Sergeant Scholl of the Ohio State Highway Patrol seems to indicate that the entire parking lot is within thirty feet of the BAC Datamaster testing device. Sergeant Van Sickle testified that he measured the thirty-foot mark to reach just to the edge of the handicap spot, and that the handicap spot is the closest spot to the building. Unfortunately, due to problems with the recording equipment used at the hearing, a large portion of the testimony is not transcribable.

At the hearing, the state conceded that the APD regularly used the Ohio State Highway Patrol testing device for a period of four to five months in 1996 and that the APD radios were never tested for radio frequency interference ("RFI") during that time. The state also introduced the radio traffic log from the APD dispatcher, which indicates that no radio traffic occurred during the time that Officer McCall was at the post. The log does not reflect whether any cellular telephone calls were transmitted during that time. Cellular telephones, like dispatch and hand-held radios, operate on radio waves, but are not recorded in the APD radio traffic log.

The court granted McNamara's motion to suppress, finding that APD radios had not been RFI surveyed and were within thirty feet of the BAC Datamaster testing device during McNamara's breath test. The state now appeals, asserting that the court should not have granted McNamara's motion. Specifically, the state frames its statement of the issue as follows:

"Does the state substantially comply with Ohio Department of Health Regulations when an Athens City Police Officer's mobile and cellular radios left in the 'on' position, which had not been RFI tested, were not within 30 feet of the breath testing instrument at the Ohio State Highway Patrol Post; the officer's hand held radio, which had not been RFI tested, was turned off and left at the front desk of the post; and there was no radio traffic reported from the time the officer arrived at the post until the time the officer left the post."

In essence, the state asserts two assignments of error. First, the state challenges the trial court's factual finding that APD radios were within thirty feet of the BAC Datamaster during McNamara's test. Second, the state asserts that regardless of the location of the radios relative to the BAC Datamaster, McNamara was not prejudiced, because no radio traffic which could have interfered with the testing device occurred during her test.

II

Appellate review of a decision on a motion to suppress evidence presents mixed questions of law and fact. United States v. Martinez (C.A.11, 1992), 949 F.2d 1117, 1119. At a suppression hearing, the trial court assumes the role of trier of fact, and as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Carter (1995), 72 Ohio St.3d 545, 552, 651 N.E.2d 965, 973. A reviewing court must accept a trial court's factual findings if they are supported by competent, credible evidence. State v. Guysinger (1993), 86 Ohio App.3d 592, 594, 621 N.E.2d 726, 727. The trial court then applies its factual findings to the law regarding suppression of evidence. An appellate court reviews the trial court's application of the law de novo. State v. Anderson (1995), 100 Ohio App.3d 688, 691, 654 N.E.2d 1034, 1036.

In this case, the parties dispute whether an APD radio was in use within thirty feet of the BAC Datamaster. Officer McCall has no specific recollection of turning off his hand-held radio and leaving it at the front desk at the post. However, Officer McCall testified that it is his "normal procedure" to do so.

Additionally, each party has pointed to portions of the transcript which appear to support its own position with regard to the distance from the BAC Datamaster to the parking lot where Officer McCall's cruiser held three radios in the "on" position which had not been RFI surveyed. Unfortunately, much of the testimony regarding the location of the police cruiser in relation to the BAC Datamaster is not transcribable because the trial court's recording equipment malfunctioned. We do not know what that testimony was, but we know that upon hearing it, the trial court concluded that APD radios were within thirty feet of the BAC Datamaster testing device.

We find competent, credible evidence in the record to support the trial court's finding that APD radios which had not been RFI surveyed were left "on" within thirty feet of the BAC Datamaster. This evidence includes both Officer McCall's uncertainty regarding his hand-held radio and the conflicting testimony regarding the distance from the BAC Datamaster to his cruiser. Furthermore, because the record is incomplete, we must presume the trial court had adequate evidence before it to support its findings. See Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 219-220, 400 N.E.2d 384, 385-386; In re Adoption of Foster (1985), 22 Ohio App.3d 129, 131, 22 OBR 331, 332-333, 489 N.E.2d 1070, 1072-1073. We note that, if the state wanted us to consider the parts of the record which are incomplete, it should have followed App.R. 9(C), (D), and/or (E). Accordingly, we overrule the state's challenge to the trial court's factual finding that APD radios were within thirty feet of the BAC Datamaster.

III

We now turn to the trial court's application of the law to McNamara's case. The state argues that the trial court should not have suppressed the results of McNamara's BAC Datamaster test because the evidence presented indicated that no APD radio traffic occurred during the test. McNamara asserts that the presence or absence of radio traffic was not proven as to the cellular telephone and that radios which are "on" are "in use" as prohibited by regulation. Furthermore, McNamara asserts that the state did not trigger her burden to prove that the APD radios were used during her test, because it did not meet its initial burden of proving that it complied with regulations governing RFI testing.

The results of a breath test administered pursuant to R.C. 4511.19 may be admitted into evidence only upon a showing that the breath test was administered in accordance with Department of Health ("DOH") regulations. Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 72 O.O.2d 44, 330 N.E.2d 908, paragraph two of the syllabus. Pursuant to DOH regulations, an RFI survey must be administered with respect to each radio frequency regularly broadcast from within the vicinity of the agency's BAC Datamaster or other approved breath-alcohol-analysis device. State v. Adams (1992), 73 Ohio App.3d 735, 743, 598 N.E.2d 176, 181-182. The RFI survey examines the existence and degree of interference created by radios operating near the testing device. Id. The relevant DOH regulation, Ohio Adm.Code 3701-53-02(C), provides:

"(1) Radio transmitting antennae shall not be used within any RFI affected zone during the conduct of a subject test or a calibration check. No radio transmitting antennae that have not been subjected to an RFI survey shall be used within thirty feet of the breath testing instrument during conduct of a subject test or a calibration check."

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