State v. Moore

• Decision Date: 11 December 2013
• Docket Number: No. 12CA26.,12CA26.
• Citation: 5 N.E.3d 41
• Parties: STATE of Ohio, Plaintiff–Appellant, v. Antonio MOORE, Defendant–Appellee.
• Court: Ohio Court of Appeals

5 N.E.3d 41

STATE of Ohio, Plaintiff–Appellant,

v.Antonio MOORE, Defendant–Appellee.

No. 12CA26.

Court of Appeals of Ohio, Fourth District, Athens County.

Dec. 11, 2013.

Patrick J. Lang, Athens City Law Director, and Tracy W. Meek, Athens City Prosecutor, Athens, Ohio, for Appellants.

Jon J. Saia, Saia & Piatt, Inc., Columbus, OH, for Appellees.

ABELE, J.

{¶ 1} This is an appeal from an Athens County Municipal Court judgment that granted a motion to suppress evidence filed by Antonio Moore, defendant below and appellee herein.

{¶ 2} The City of Athens, plaintiff below and appellant herein, assigns the following error for review:

“THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO SUPPRESS FINDING THAT THE ODH DIRECTOR HAS FAILED TO COMPLY WITH THE REQUIREMENTS OF R.C. 3701.143 AND, PURSUANT TO STATE V. RIPPLE, [70 Ohio St.3d 86, 637 N.E.2d 304 (1994) ] SUCH LACK OF COMPLIANCE REQUIRES EXCLUSION OF INTOXILYZER RESULTS IN ANY 4511.19 PROSECUTION.”

{¶ 3} Appellee received a citation for operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), and operating a motor vehicle with a prohibited concentration of alcohol in his breath in violation of R.C. 4511.19(A)(1)(d).¹ Appellee subsequently filed a motion to suppress the Intoxilyzer 8000 breath test results. Appellee argued that the results are inadmissible because the Ohio Director of Health (ODH) failed to set forth rules regarding the qualifications for personnel using the Intoxilyzer 8000. Appellee agreed that the officer who administered the test possessed an “operator access card,” but asserted that none of the ODH regulations set forth the qualifications to obtain an operator access card. Appellee contended that because the ODH failed to promulgate any rules regarding personnel qualifications for the Intoxilyzer 8000, the ODH did not comply with R.C. 3701.143 and, consequently, test results are inadmissible under R.C. 4511.19(D)(1)(b).

{¶ 4} The trial court agreed with appellee that the ODH failed to promulgate any rules to ascertain whether an individual qualifies to operate the Intoxilyzer 8000. The court explained: “As the rules are written, there are no standards as to the occupation, education, or proficiency for an individual to obtain or retain an operator access card [for the Intoxilyzer 8000].” The court thus concluded that the ODH failed to comply with R.C. 3701.143 and, thus, that the officer did not possess a valid permit. The court determined that because the officer did not possess a valid permit, the Intoxilyzer 8000 test results are inadmissible pursuant to R.C. 4511.19(D)(1)(b). This appeal followed.

{¶ 5} In its sole assignment of error, the appellant argues that the trial court erred by granting appellee's motion to suppress evidence. Appellant contends that the trial court wrongly ruled that the Intoxilyzer 8000 test results are inadmissible under R.C. 4511.19(D)(1)(b) due to the officer's lack of a valid permit. Appellant asserts that the trial court incorrectly determined that the ODH regulations fail to set forth any qualifications for individuals who desire to administer the Intoxilyzer 8000 and, thus, that the officer's permit is not valid. Appellant asserts that Ohio Admin.Code 3701–53–07(E) sets forth the qualifications for an individual who desires to administer the Intoxilyzer 8000.

{¶ 6} Appellee contends that the Intoxilyzer 8000 results are inadmissible under R.C. 4511.19(D)(1)(b) because the ODH has not issued a valid permit to the officer who performed the breath test. Appellee recognizes that the officer possessed an operator access card. Appellee asserts, however, that the operator access card is not a valid permit issued under R.C. 3701.143. Appellee argues that the permit is not valid under R.C. 3701.143 because the ODH failed to set forth any method to ascertain whether an individual qualifies for an operator access card.

ASTANDARD OF REVIEW

{¶ 7} Appellate review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. We must accept a trial court's findings of fact if competent and credible evidence supports the findings. We, however, review de novo the trial court's application of the relevant law to those facts. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 8} In the case at bar, the parties do not dispute the facts. Instead, they dispute whether the ODH has promulgated any regulations governing the qualifications for individuals who desire to administer the Intoxilyzer 8000. This is a question that involves the interpretation of an administrative rule, which is a question of law. Minges v. Ohio Dept. Of Agriculture, ––– Ohio App.3d ––––, 2013-Ohio-1808, 990 N.E.2d 662, ¶ 13;Cincinnati v. Nicholson, 1st Dist. Hamilton No. C–120332, 2013-Ohio-708, 2013 WL 782621, ¶ 8.

BADMINISTRATIVE RULE INTERPRETATION

{¶ 9} Courts interpret administrative rules in the same manner as statutes. McFee v. Nursing Care Mgt. of Am., Inc., 126 Ohio St.3d 183, 2010-Ohio-2744, 931 N.E.2d 1069, ¶ 27, citing State ex rel. Brilliant Elec. Sign Co. v. Indus. Comm., 57 Ohio St.2d 51, 54, 386 N.E.2d 1107 (1979) (stating that the “ordinary meaning rule” of statutory construction applies equally to administrative rules). The primary goal in construing an administrative rule is to ascertain and give effect to the intent of the rule-making authority. State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 11. The rule-making authority's intent “ ‘is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation.’ ” State ex rel. Cordray v. Midway Motor Sales, Inc., 122 Ohio St.3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 15, quoting Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. Thus, when interpreting an administrative rule, courts first look to text of the rule, “ ‘reading words and phrases in context and construing them according to the rules of grammar and common usage.’ ” State v. Willan, 136 Ohio St.3d 222, 2013-Ohio-2405, 994 N.E.2d 400, ¶ 5, quoting State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21;accord Sugarcreek Twp. v. Centerville, 133 Ohio St.3d 467, 2012-Ohio-4649, 979 N.E.2d 261, ¶ 19. If the language is plain and unambiguous, courts must apply it as written. Willan at ¶ 5, citing Hairston at ¶ 13. “ ‘The interpretation of statutes and administrativerules should follow the principle that neither is to be construed in any way other than as the words demand.’ ” State ex rel. Baroni v. Colletti, 130 Ohio St.3d 208, 2011-Ohio-5351, 957 N.E.2d 13, ¶ 18, quoting Morning View Care Ctr.–Fulton v. Ohio Dept. of Human Servs., 148 Ohio App.3d 518, 2002-Ohio-2878, 774 N.E.2d 300, ¶ 36 (10th Dist.).

{¶ 10} Moreover, related provisions must be read in pari materia. Midway Motor Sales, supra, at ¶ 25, citing Maxfield v. Brooks, 110 Ohio St. 566, 144 N.E. 725, (1924) paragraph two of the syllabus. In reading statutes and administrative rules in pari materia, “court[s] must give a reasonable construction that provides the proper effect to each.” Id., citing Maxfield. “All provisions * * * bearing upon the same subject matter should be construed harmoniously unless they are irreconcilable.” Id., citing Couts v. Rose, 152 Ohio St. 458, 461, 90 N.E.2d 139 (1950); accord Chesapeake Exploration, L.L.C. v. Oil & Gas Comm., 135 Ohio St.3d 204, 2013-Ohio-224, 985 N.E.2d 480, ¶ 14.

{¶ 11} Before we examine the relevant administrative rules, we first set forth the provisions of the Revised Code that authorize the ODH to promulgate rules regarding breath-alcohol tests.

CR.C. 4511.19(D)(1)(b)

{¶ 12} Through the enactment of R.C. 4511.19(D)(1)(b), the Ohio General Assembly has empowered the ODH to determine the appropriate means and methods for analyzing an individual's breath-alcohol concentration. R.C. 4511.19(D)(1)(b) states that evidence on the concentration of alcohol in an individual's breath may be admitted into evidence at trial if it has been “analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code.” Thus, R.C. 4511.19(D)(1)(b) sets forth two basic statutory requirements for evidence regarding the concentration of alcohol in a defendant's breath to be admissible: (1) the ODH has approved the testing method; and (2) the individual who analyzed the concentration possesses a valid permit that the ODH issued under R.C. 3701.143. Our focus in the case at bar is on the second requirement-whether the officer possessed a valid permit that the ODH issued under R.C. 3701.143.

DR.C. 3701.143

{¶ 13} R.C. 3701.143 gives the ODH the authority to determine techniques or methods for chemically analyzing a person's breath in order to ascertain the amount of alcohol in the person's breath. The statute requires the ODH to (1) “approve satisfactory techniques or methods, [2] ascertain the qualifications of individuals to conduct such analyses, and [3] issue permits to qualified persons authorizing them to perform such analyses.”

EODH REGULATIONS

{¶ 14} Ohio Admin.Code 3701–53–02(A) sets forth the instruments “approved as evidential breath testing instruments for use in determining whether a person's breath contains a concentration of alcohol prohibited or defined by sections 4511.19 * * *.” The “Intoxilyzer model 8000 (OH–5)” is one of the approved evidential breath testing instruments. Ohio Admin.Code 3701–53–02(A)(3). Thus, the ODH has approved the Intoxilyzer 8000 as a satisfactory technique or method for chemically analyzing a person's breath in order to ascertain the amount of alcohol in the person's breath, as R.C. 3701.143 require...