State v. Yoder , 66 Ohio St. 3d 515 ( 1993 )

Francis E. Sweeney, Sr., J.

The question presented by these appeals is whether a new radio frequency interference survey must be conducted when the intoxilyzer is removed from its testing location for service and repair, and then returned to the same site and used for testing. For the following reasons, we answer this question in the negative.

Under R.C. 4511.19(D), the General Assembly has provided that bodily substances taken to prove a violation of the driving-while-under-the influence statute "shall be analyzed in accordance with methods approved by the director of health * *

In addition, former R.C. 3701.143¹ provides that “the director of health shall determine, or cause to be determined, techniques or methods for chemically analyzing a person’s * * * breath, * * * in order to ascertain the amount of alcohol in a person’s blood.” Pursuant to such statutory grant of authority, the Director of Health has approved the intoxilyzer as an instrument for testing a person’s breath to measure the defendant’s breath-alcohol concentration. Ohio Adm.Code 3701-53-02(A).

To achieve accurate results for breath testing devices such as the intoxilyzer, the Director of Health prescribed Ohio Adm.Code 3701-53-02(0) as amended effective May 5, 1990, which provides:

“ * * * RFI surveys conducted before the effective date of this amendment in accordance with the rule as it existed when the surveys were conducted shall remain valid until an event that would require a new RFI survey under paragraphs (C)(2) of this rule occurs.” Subsection (C)(2) states that a new survey is not required unless one of the following changes occurs:

“a. The location of the breath testing instrument, when used for testing, is moved more than one foot in any direction;

“b. The instrument’s axis is changed;

“c. The frequency band of the radio transmitting equipment * * * is changed;

“d. The radio transmitting equipment’s rated output power is changed;

“e. Any electronic component of the instrument is changed, other than replacement of parts with original equipment replacement parts or factory-authorized replacement parts meeting the same specifications as the original equipment parts; or

“f. A new breath testing instrument is placed into service.”

In dispute in the instant cases are subsections (C)(2)(a) and (e). Initially, we note the parties stipulated that the prior surveys were conducted in accordance with the Ohio Administrative Code. Thus, a valid survey had been performed, which remained valid until an event occurred which would require a new survey. As previously noted, the parties stipulated that the machine was removed for maintenance and repair and then returned to its original testing site. The question therefore becomes whether movement of the machine and the replacement of some parts is an event which would require a new test.

We interpret Ohio Adxn.Code 3701-53-02(C)(2)(a) to require a new survey when there is movement of the location of the breath testing instrument when used for testing, and not just when there is movement of the machine. This conclusion comports with the purpose of the RFI survey which is “to determine whether the environment in which the instrument operates contains electromagnetic or radio interference that may affect operation of the breath-testing instrument.” (Emphasis sic.) State v. Adams (1992), 73 Ohio App.3d 735, 743, 598 N.E.2d 176, 181.

In addition, Ohio Adm.Code 3701-53-02(C)(2)(e) requires a new survey when an electronic component, other than original replacement parts or factory authorized parts meeting the same specifications as the original equipment parts, is replaced. Here, the record shows that the servicing and repairs provided on January 16 and February 27, 1991 were: replacement of a breath lamp and a pressure switch, cleaning of printer rollers and printer connectors, and checking of all voltages. The parties stipulated that the replacement components were either original equipment or factory-authorized parts meeting the same specifications as the original parts.

We conclude Ohio Adm.Code 3701-53-02(C)(2)(e) requires a new RFI survey only when any electronic component of the instrument is changed or when the part replaced is not an original or factory-authorized part. Replacement of a breath lamp and a pressure switch does not qualify as electronic component replacements. As noted, the parties stipulated the replacement parts were either original equipment or factory-authorized parts.

Movement of the machine for maintenance and the replacement of minor parts must have been contemplated by the Director of Health. We cannot undercut the department’s rulemaking authority by requiring a new RFI test when the regulation does not require one. The Director of Health, not the court, was delegated the discretionary authority for adoption of breath testing devices and the procedures for their use. State v. Vega (1984), 12 Ohio St.3d 185, 189, 12 OBR 251, 255, 465 N.E.2d 1303, 1307.

We are well aware that a person charged with a violation under R.C. 4511.19 faces serious consequences solely dependent upon the results of a chemical test conducted by an instrument installed, controlled, maintained, regulated, checked and guarded by the state’s law enforcement agencies. However, in promulgating this regulation, it must be presumed that the Director of Health acted upon adequate investigation and in full awareness of the perceived problems with RFI. We must defer to the department’s authority and we may not substitute our judgment for that of the Director of Health.

For the above-stated reasons, we hold that Ohio Adm.Code 3701-53-02(C)(2) does not require a new RFI survey when the breath testing device is moved for maintenance and repair of minor parts and then is returned to its original testing location and the replacement components meet the specifications enumerated within Ohio Adm.Code 3701-53-02(C)(2)(e).

Accordingly, the judgments of the courts of appeals are affirmed.

Judgments affirmed.

Moyer, C.J., A.W. Sweeney; Douglas, Resnick and Pfeifer, JJ., concur. Wright, J., dissents.

1 . R.C. 3701.143 has been amended effective April 16, 1993. The revised statute specifically refers to R.C. 4511.19 as the basis for the Director of Health’s rulemaking authority.