State v. Fetter , 2013 Ohio 3328 ( 2013 )

[Cite as State v. Fetter, 2013-Ohio-3328.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
CATHERINE FETTER : Case No. 12-CA-94
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Licking
County Municipal Court, Case N. 12
TRC 01945
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 29, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TRICIA M. MOORE ROBERT E. CALESARIC
Assistant Law Director 35 South Park Place, Suite 150
40 W. Main Street Newark, OH 43055
Newark, OH 43055
Licking County, Case No. 12-CA-94 2
Baldwin, J.
{¶1} Appellant Catherine Fetter appeals a judgment of the Licking County
Municipal Court convicting her of operating a motor vehicle with a prohibited breath-
alcohol content (R.C. 4511.19(A)(1)(d)) and driving outside marked lanes (R.C.
4511.33). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On February 27, 2012, Trooper Jermaine Thaxton was on routine patrol,
working the night shift in Newark, Ohio. He observed a vehicle operated by appellant
travel outside her marked lane of travel at 2:49 a.m. After stopping the vehicle and
approaching the driver’s side of the car, Tpr. Thaxton noticed an odor of alcohol about
appellant. He also noted that her eyes were glassy and bloodshot. Tpr. Thaxton
removed appellant from the car and from proximity to her passenger, and he then
specifically noted that appellant had an odor of alcohol on her breath.
{¶3} After administering field sobriety tests, appellant was arrested for
operating a motor vehicle under the influence of alcohol and taken to the Granville post
of the Ohio State Highway Patrol. She submitted to a breath test and the result was
.094 grams of alcohol per 210 liters of breath, above the legal limit.
{¶4} Appellant was charged with operating a motor vehicle under the influence
of alcohol in violation of R.C. 4511.19(A)(1)(a) and (d), and driving outside marked lines
in violation of R.C. 4511.33. Appellant moved to suppress the results of the breath
alcohol test. The motion to suppress was overruled.
{¶5} The case proceeded to jury trial on November 8, 2012. Prior to the start of
trial, the State dismissed the charge of a violation of R.C. 4511.19(A)(1)(a). The jury
Licking County, Case No. 12-CA-94 3
found appellant guilty of operating a motor vehicle under the influence of alcohol in
violation of R.C. 4511.19(A)(1)(d). Appellant entered a plea of no contest to driving
outside marked lanes. She was fined $375.00, and sentenced to thirty days
incarceration with 27 days suspended and placed on probation for one year for
operating a motor vehicle under the influence of alcohol. She was fined $15.00 for the
marked lanes violation. She assigns two errors on appeal:
{¶6} “I. ADMISSION OF MS. FETTER’S BREATH TEST RESULT AT TRIAL
VIOLATED HER SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES
AGAINST HER.
{¶7} “II. THE TRIAL COURT COMMITTED ERROR BY FINDING THAT THE
STATE ESTABLISHED SUBSTANTIAL COMPLIANCE WITH THE OHIO
DEPARTMENT OF HEALTH ADMINISTRATIVE REGULATIONS AND R.C. 4511.19
ET AL.”
I.
{¶8} Appellant argues in her first assignment of error that admission of her
breath test result at trial violated her sixth amendment right to confront the witnesses
against her. She makes three arguments in this assignment of error: she was denied
her right of confrontation because Tpr. Thaxton had no personal knowledge of the inner
workings of the BAC machine nor was he an expert in the operation of the machine, the
court limited her cross-examination of Tpr. Thaxton on the inner workings of the
machine, and she was unable to introduce evidence at trial of the pre and post
calibration checks of the machine.
Licking County, Case No. 12-CA-94 4
{¶9} Appellant’s claimed errors all relate to her attempts to attack the general
reliability of the BAC machine, rather than her specific test results.
{¶10} The admissibility of breath-test results turns on the test's substantial
compliance with ODH regulations, not compliance with the Constitution. City of
Columbus v. Aleshire, 187 Ohio App. 3d, 660, 993 N.E.2d 317, 2010-Ohio-2773,
paragraph 14, citing State v. French, 72 Ohio St. 3d 446, 451, 650 N.E.2d 887 (1995).
At trial, the accused may not make a general attack on the reliability and validity of the
breath testing instrument. Id. at paragraph 13, citing State v. Vega, 12 Ohio St. 3d 185,
190, 465 N.E.2d 1303 (1984). However, he may challenge the accuracy of his specific
test result. Columbus v. Day, 24 Ohio App.3d 173, 174, 24 OBR 263, 493 N.E.2d 1002(1985). Thus, the accused may attempt to show that something went wrong with his test
and consequently, the result was at variance with what the approved testing procedure
should have produced. Id.{¶11} Appellant claims error in the court precluding her from cross-examining
Tpr. Thaxton on the inner workings of the BAC machine and excluding her evidence of
calibration testing on the machine. These attacks are to the general reliability and
validity of the breath testing instrument, and not to her specific test result. Appellant is
not permitted to make a general attack on the reliability of the breath testing instrument,
and the court therefore did not err in limiting cross-examination and presentation of
evidence to only specific attacks on appellant’s test result.
{¶12} The first assignment of error is overruled.
Licking County, Case No. 12-CA-94 5
II.
{¶13} Appellant argues that the court erred in failing to suppress the results of
the BAC test because the affidavit of the officer who performed the pre and post
calibration checks is inaccurate in its dates, and therefore cannot serve as proof of
substantial compliance with Ohio Department of Health Regulations.
{¶14} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d
1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(1993). Second,
an appellant may argue the trial court failed to apply the appropriate test or correct law
to the findings of fact. In that case, an appellate court can reverse the trial court for
committing an error of law. State v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141(1993). Finally, assuming the trial court's findings of fact are not against the manifest
weight of the evidence and it has properly identified the law to be applied, an appellant
may argue the trial court has incorrectly decided the ultimate or final issue raised in the
motion to suppress. When reviewing this type of claim, an appellate court must
independently determine, without deference to the trial court's conclusion, whether the
facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio
App.3d 93, 641 N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d
906 (1993); Guysinger, supra.Licking County, Case No. 12-CA-94 6
{¶15} R.C. 4511.19(D) requires that the analysis of bodily substances be
conducted in accordance with methods approved by the Ohio Director of Health, as set
forth in the Ohio Administrative Code regulations. The Ohio Supreme Court has held
that absent a showing of prejudice by the defendant, rigid compliance with ODH
regulations is not required, as such compliance is not always humanly or realistically
possible. State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986); State v.
Raleigh, 5th Dist. No.2007-CA-31, 2007-Ohio-5515, at ¶ 40. Rather, if the state shows
substantial compliance with the regulations, alcohol tests results are admissible in a
prosecution under R.C. 4511.19. Plummer, supra at syllabus.
{¶16} Appellant argues that the dates in the affidavits concerning the pre and
post calibration tests were clearly inaccurate, and no testimony was presented to
correct the error in the dates. Regarding the pre-calibration check, the instrument check
form states that the test date was February 27, 2012, the date of the prior check was
February 20, 2012, the date of first use was January 1, 2012, the date to discard was
April 2, 2012, and the expiration date was August 23, 2012. The addendum to this form
is an affidavit of Tpr. Eitel, who performed the calibration check. The affidavit states,
“Specifically, I used the check solution indicated on this form, which was within three
months of its date of first use, to wit: 01-02-12, within one year of its manufacture, to-wit:
04-02-12, and before any manufacturer’s expiration date, to-wit: 08-23-12.”
{¶17} Similarly, the form from the March 5, 2012, calibration check states that
the date of the prior instrument check was February 27, 2012, the date of first use was
March 5, 2012, the date to discard was June 5, 2012, and the expiration date was
August 23, 2012. The addendum is an affidavit of Tpr. Epler who performed the check,
Licking County, Case No. 12-CA-94 7
stating, “Specifically, I used the check solution indicated on this form, which was within
three months of its date of first use, to wit: 3-5-12, within one year of its manufacture, to-
wit: 6-5-12, and before any manufacturer’s expiration date, to-wit: 08-23-12.”
{¶18} While appellant argues that the dates on the form must be inaccurate
because the date of manufacture as stated in the affidavit is after the date of the
calibration test, by reading the test check form and the affidavits they are attached to
together, it is apparent that the officers interpreted the language “within one year of its
manufacture, to-wit” to refer to a date one year after the manufacture date, not the date
of manufacture. While the wording of the affidavit is awkward, the affidavits coupled
with the check test forms are sufficient to establish substantial compliance with
Department of Health regulations.
{¶19} The second assignment of error is overruled.
Licking County, Case No. 12-CA-94 8
{¶20} The judgment of the Licking County Municipal Court is affirmed. Costs
assessed to appellant.
By: Baldwin, J.
Hoffman, P. J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
CRB/rad
[Cite as State v. Fetter, 2013-Ohio-3328.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff - Appellee :
:
-vs- : JUDGMENT ENTRY
:
CATHERINE FETTER :
:
Defendant - Appellant : CASE NO. 12-CA-94
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Licking County Municipal Court, Ohio is affirmed. Costs assessed to
appellant.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY