State v. Williams , 93 N.E.3d 90 ( 2017 )

[Cite as State v. Williams, 2017-Ohio-4455.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO,1 :
Plaintiff-Appellant, : Case No. 17CA8
v. : DECISION AND
JUDGMENT ENTRY
RANDY D. WILLIAMS, :
Defendant-Appellee. : RELEASED 06/16/2017
Paul G. Bertram, III, City of Marietta Law Director, and Daniel Everson, City of Marietta
Assistant Law Director, Marietta, Ohio, for appellant.
April F. Campbell, Campbell Law, LLC, Dublin, Ohio, for appellee.
Hoover, J.
{¶1} Plaintiff-appellant, the State of Ohio (“State”), appeals a judgment of the Marietta
Municipal Court that granted a motion to suppress evidence filed by defendant-appellee, Randy
D. Williams (“Williams”). The State raises seven assignments of error; but we find the sixth
assignment of error to be dispositive.
{¶2} In its sixth assignment of error, the State argues that the trial court incorrectly
suppressed the results of Williams’s BAC DataMaster test. The State contends that the trial court
erred in finding that the law enforcement officer who administered Williams’s test lacked a valid
permit to operate the machine. The State further claims that the trial court wrongly construed the
Ohio Director of Health (“ODH”) regulations to mean that a BAC DataMaster senior operator
1
We observe that the notice of appeal lists the plaintiff-appellant as the “City of Marietta.” However, the trial
court’s decision lists the plaintiff-appellant as the “State of Ohio.” For consistency, we use the same designation as
the trial court.
Washington App. No. 17CA8 2
permit holder must complete a proficiency examination that includes accepting “subject
samples” in order for a renewal to be valid. We agree with the State. A plain reading of the
regulations fails to support the trial court’s conclusion. Instead, the regulations clearly outline the
qualifications for renewal and do not require a BAC DataMaster senior operator permit holder
seeking renewal to complete a proficiency examination before the renewal becomes valid. See
Ohio Adm.Code 3701-53-09(F) and 3701-53-07(D). The regulation regarding proficiency
examinations for BAC DataMaster senior operator permit holders states that the proficiency
examinations are conducted “at the director’s discretion,” and not that they are required in order
to obtain a renewal. Ohio Adm.Code 3701-53-08(C).
{¶3} Accordingly, we sustain the State’s sixth assignment of error; and we find the
other assignments of error to be moot. We reverse the trial court’s decision granting Williams’s
motion to suppress the results of his breath test, and remand for further proceedings.
I. Facts and Procedural History
{¶4} On September 2, 2016, Ohio State Highway Patrol Sergeant Eric Knowlton
responded to the scene of a motor vehicle collision involving the vehicle Williams had been
operating. During the encounter, Sergeant Knowlton detected an odor of an alcoholic beverage
emanating from Williams’s breath. Williams admitted that he had consumed some alcoholic
beverages. Sergeant Knowlton administered field sobriety tests and subsequently arrested
Williams.
{¶5} The sergeant transported Williams to the Belpre Police station where he
administered a BAC DataMaster test. Williams registered a .135 breath-alcohol content. Sergeant
Knowlton charged Williams with operating a motor vehicle while under the influence of alcohol,
Washington App. No. 17CA8 3
in violation of R.C. 4511.19(A)(1)(a) and (d), as well as traveling left of center, in violation of
R.C. 4511.25. Williams later entered a not guilty plea.
{¶6} On October 7, 2016, Williams filed a motion to suppress, inter alia, the results of
his breath-alcohol test. Williams raised twenty-two grounds in support of his motion, but he later
narrowed it down to the following two issues:
[1] The individual administering the breath test did not complete a proficiency
examination in the past calendar year as is required under 3701-53-08(D).
[2] The individual administering the breath test did not present evidence
satisfactory to the director that he or she continues to meet the qualifications
established by the applicable provisions of rules 3701-53-07 and 3701-53-08 of
the OAC for issuance of the operator access card sought as is required by 3701-
53-09(E).
{¶7} In its response, the State asserted that Williams’s two identified issues are not
relevant. The State argued that the two issues cite the regulations applicable to operator access
cards, which are required to administer tests using the Intoxilyzer 8000, but are not required to
administer tests using the BAC DataMaster. The State noted that Williams’s case did not involve
the Intoxilyzer 8000, but instead, involved the BAC DataMaster. The State thus claimed that the
two issues are completely irrelevant in Williams’s case.
{¶8} On November 21, 2016, the trial court held a hearing on the motion to suppress.
The parties initially clarified that the case did not involve the Intoxilyzer 8000. The trial court
advised the parties that it would consider the State’s argument that the provisions Williams cited
are inapplicable to the BAC DataMaster and that if it did consider Williams’s argument, it would
consider whether the officers met “the qualifications or did have proficiency exams.” The State
Washington App. No. 17CA8 4
indicated that it intended “to provide evidence of certification, sufficient to operate the BAC
DataMaster, not the I-8000.”
{¶9} The State questioned Sergeant Knowlton about his qualifications to administer the
BAC DataMaster test. Sergeant Knowlton explained that he is licensed as a BAC DataMaster
senior operator and holds a senior operator’s permit issued by the Ohio Department of Health.
He testified that he is a high school graduate and a certified law enforcement officer. He
additionally stated that he successfully completed a senior operator upgrade or conversion
training course for the BAC DataMaster, as well as a proficiency examination in breath testing
within the year prior to September 2, 2016.
{¶10} During cross-examination, Knowlton stated that he has held a senior operator
permit since early 2005. He further explained the proficiency examination that he completed. He
testified that ODH representatives are present during the test and that they collect the results after
the test is complete. Knowlton stated that his examination involved both a written test and a
simulated breath-alcohol content test using a sample containing a known alcohol content.
Knowlton indicated that he did not use any “subject samples” (i.e., samples received from
individuals) during his proficiency testing.
{¶11} Belpre Police Sergeant Tyler Heddleston testified that he holds a senior operator
permit from the Ohio Department of Health. He explained that he checked the BAC DataMaster
during the week of Williams’s test and found it to be in proper working order. Sergeant
Heddleston further stated that he is a high school graduate and a certified law enforcement
officer. He additionally indicated that he successfully completed a senior operator upgrade or
conversion training course for the BAC DataMaster, as well as a proficiency examination in
breath testing.
Washington App. No. 17CA8 5
{¶12} On cross-examination, Sergeant Heddleston explained his proficiency
examination consisted of a written test and a practical test during which he had to demonstrate
that he knew how to use the BAC DataMaster. He stated that during the practical part of the test,
he used “a subject test” and not a known solution. Sergeant Heddleston testified that he obtains a
“subject test” by either blowing into the machine or requesting another individual to blow into
the machine.
{¶13} On February 21, 2017, the trial court granted Williams’s motion to suppress. The
court found that both Sergeants Knowlton and Heddleston hold senior operator permits and that
both passed their proficiency examinations. However, the court pointed out that they did not
complete the practical portion of the proficiency test in the same manner. The court noted that
Sergeant Knowlton used a known alcohol sample, while Sergeant Heddleston used a live subject
sample.
{¶14} The court classified the question before it as “whether the Court accepts Sgt.
Knowlton’s renewal permit as a Senior Operator as valid despite the fact that Defendant
questioned compliance with the requirement for a proficiency exam.” The court found that the
two sergeants “testified to different procedures for demonstrating practical competency during
the proficiency testing.” The court found that the procedure Sergeant Knowlton described
“appears to be the instrument check described in OAC 3701-54-04” and that what Sergeant
“Heddleston describe[d] is closer to a subject sample.” The court found “merits in both
approaches to practical competency testing as well as potential shortcomings.” The court stated
that the State did not produce any “evidence that either identified procedure for practical testing
is acceptable to the director of health.” The court thus determined that the State failed to
establish that Sergeant Knowlton’s proficiency test substantially complied with Ohio Adm. Code
Washington App. No. 17CA8 6
3701-53-08(E), which requires applicants to accept samples, and with 3701-53-08(C)(2), which
states that a proficiency exam shall consist of an evaluation of the permit holder’s ability to test
samples using the evidential breath testing instrument for which the permit is held. The court
believed that the difference in practical testing procedures was “beyond de minimis.” The court
granted Williams’s motion to suppress the results of his breath test. It is from this decision that
the State appeals.
II. Assignments of Error
{¶15} The State raises seven assignments of error.
First Assignment of Error:
Whether the trial court erred in ruling that Defendant-Appellee’s citation to rules
concerning renewal of Operator Access Cards for the Intoxilyzer 8000 placed into
issue the legal basis for decision concerning a Senior Operator Permit for the
BAC Datamaster.
Second Assignment of Error:
Whether the trial court erred in deciding the case on the basis of legal issues as to
which fair notice was not given.
Third Assignment of Error:
Whether the trial court erred, in view of the trial court’s findings of fact, in
implicitly finding that suppression theories 21 and 22 were relevant to the case.
Fourth Assignment of Error:
Whether the trial court erred in holding that Defendant-Appellee’s motion to
suppress and supporting memorandum were sufficiently specific to raise the
City’s burden of proof from “fairly slight” to a specific burden requiring
particularized testimony.
Fifth Assignment of Error:
Whether the trial court erred in suggesting that Defendant-Appellee raised the
City’s burden through cross-examination.
Washington App. No. 17CA8 7
Sixth Assignment of Error:
Whether the trial court erred in ruling that Plaintiff-Appellant’s evidence failed to
satisfy Plaintiff-Appellant’s burden under R.C. 4511.19(D)(1)(b).
Seventh Assignment of Error:
Whether the trial court erred by denying due deference to the Department of
Health’s power to interpret its own regulations in the issuance and renewal of
permits.
III. Law and Analysis
{¶16} Although the State presents seven assignments of error, we find the sixth
dispositive. In its sixth assignment of error, the State argues that the trial court erred as a matter
of law by suppressing Williams’s BAC DataMaster test results. Specifically, the State asserts
that the trial court incorrectly determined that Sergeant Knowlton did not hold a valid permit at
the time he administered the BAC DataMaster test to Williams.
A. Standard of Review
{¶17} Appellate review of a trial court’s ruling on a motion to suppress is “a mixed
question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. When considering a motion to suppress, the trial court assumes the role of the trier of
fact and is therefore in the best position to resolve factual questions and evaluate the credibility
of the witnesses. State v. Roberts, 110 Ohio St.3d 71, 2006–Ohio–3665, 850 N.E.2d 1168, ¶ 100,
citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Consequently, in its
review, an appellate court must accept the trial court’s findings of fact if they are supported by
competent, credible evidence. State v. Belton, --- Ohio St.3d ---, 2016-Ohio-1581, --- N.E.3d ---,
¶ 100; State v. Landrum, 137 Ohio App.3d 718, 722, 739 N.E.2d 1159 (4th Dist.2000). However,
Washington App. No. 17CA8 8
an appellate court determines as a matter of law, without deferring to the trial court’s
conclusions, whether the trial court reached the correct legal conclusion in analyzing the facts of
the case. Belton at ¶ 100; Roberts at ¶ 100; Burnside at ¶ 8.
B. Alcohol Test Challenges
{¶18} A defendant who wants to challenge the validity of an alcohol test result must first
file a motion to suppress. State v. Baker, 146 Ohio St.3d 456, 2016-Ohio-451, 58 N.E.3d 1114, ¶
23; Burnside at ¶ 24. If the defendant challenges the validity of an alcohol test, the State bears
the burden to establish that the testing procedures substantially complied with the applicable
ODH regulations. Baker at ¶ 23; Burnside at ¶ 24. The substantial compliance standard is limited
“to excusing only errors that are clearly de minimis,” i.e., irregularities amounting to “ ‘minor
procedural deviations.’ ” Burnside at ¶ 34, quoting State v. Homan, 89 Ohio St.3d 421, 426, 732
N.E.2d 952 (2000). Once the State shows substantial compliance with the regulations, the test
result is presumptively admissible. Baker at ¶ 23; Burnside at ¶ 24. The burden then shifts to the
defendant to show prejudice resulting from “anything less than strict compliance.” Burnside at ¶
24. Prejudice, in this context, means “that the failure to strictly comply may have caused an
unreliable test result that does not properly measure alcohol content in the specimen.” Baker at ¶
27.
C. Alcohol Test Admissibility
{¶19} R.C. 4511.19(D)(1)(b) states that evidence regarding 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
Washington App. No. 17CA8 9
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. State v. Moore, 2013-Ohio-5506, 5 N.E.3d 41, ¶ 12
(4th Dist.).
{¶20} Our focus in the case at bar is whether the trial court properly concluded that (1)
Sergeant Knowlton lacked a valid permit that the ODH issued under R.C. 3701.143, and (2) that
Williams’s breath test result is inadmissible under R.C. 4511.19(D)(1)(b). The court found that
the sergeant lacked a valid permit, because his proficiency examination did not comply with the
Ohio Adm.Code 3701-53-08(E) requirement to accept “samples.” The court determined that the
sergeant’s proficiency examination did not comply with the requirement to accept “samples,”
because he used a known solution, rather than a sample from an individual. The court then
concluded that because the sergeant’s proficiency examination did not comply with the Ohio
Adm.Code 3701-53-08(E) requirement to accept “samples,” the renewal of his BAC DataMaster
senior operator’s permit was invalid. The court therefore determined that Sergeant Knowlton did
not possess a valid permit, and that his lack of a valid permit rendered Williams’s BAC
DataMaster test result inadmissible under R.C. 4511.19(B)(1)(b).
{¶21} The State argues that the trial court erred by determining that Sergeant Knowlton
lacked a valid permit. The State contends that it presented unrefuted evidence that Sergeant
Knowlton possesses a valid permit. The State introduced into evidence a written certificate
issued by the ODH that licenses Sergeant Knowlton to perform tests using the BAC DataMaster.
The State asserts that this evidence, by itself, demonstrates that Sergeant Knowlton’s permit is
valid.
Washington App. No. 17CA8 10
{¶22} Accordingly, our review centers upon whether the trial court correctly interpreted
R.C. 4511.19(B)(1)(b) and the ODH regulations to mean that a BAC DataMaster senior operator
permit holder must complete a proficiency examination that includes accepting “subject
samples” in order for a renewal permit issued by the ODH to be valid.
D. Statutory and Regulatory Interpretation
{¶23} 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 correct interpretation of statutes and administrative rules presents a
question of law that we review independently and without deference to the trial court. E.g., State
v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 6; State v. Bundy, 2012-
Ohio-3934, 974 N.E.2d 139, ¶ 46 (4th Dist.); see also Hudson v. Petrosurance, Inc., 127 Ohio
St.3d 54, 2010–Ohio–4505, 936 N.E.2d 481, ¶ 29, citing MCI Telecommunications Corp. v. Pub.
Util. Comm., 38 Ohio St.3d 266, 268, 527 N.E.2d 777 (1988) (stating that appellate courts have
“complete and independent power of review as to all questions of law”).
{¶24} “ ‘It is a cardinal rule of statutory construction that where the terms of
a statute are clear and unambiguous, the statute should be applied without interpretation.’ ”
Wilson v. Lawrence, --- Ohio St.3d ---, 2017-Ohio-1410, --- N.E.3d ---, ¶ 11, quoting Wingate v.
Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979), citing Provident Bank v. Wood, 36 Ohio
St.2d 101, 304 N.E.2d 378 (1973). Accordingly, a court’s first step when considering the
meaning of an administrative rule (or statute) “is always to determine whether the [rule or]
statute is ‘plain and unambiguous.’ ” Jacobson v. Kaforey, — Ohio St.3d —, 2016-Ohio-8434,
Washington App. No. 17CA8 11
— N.E.3d —, ¶ 8, quoting State v. Hurd, 89 Ohio St.3d 616, 618, 734 N.E.2d 365 (2000); see
also 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 (stating that if words used in statute or administrative rule “ ‘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’ ”). If the language is
plain and unambiguous, courts must apply it as written. Wilson at ¶ 11, quoting State v.
Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 13 (“ ‘If [the statute or rule] is
not ambiguous, then we need not interpret it; we must simply apply it.’ ”). When the language
used in a statute or rule “ ‘is plain and unambiguous, and conveys a clear and definite meaning,
we must rely on what the [legislative body or rule-making authority] has said.’ ” Id., quoting
Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172,
¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057(2000). Additionally, courts must “give effect only to the words the legislature used, making
neither additions to, nor deletions from, the statutory language.” Id., citing Columbia Gas
Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 19.
Furthermore, “ ‘[t]he interpretation of statutes and administrative rules 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.).
{¶25} Thus, when interpreting an administrative rule, courts first look to the text of the
rule, “reading words and phrases in context and construing them according to the rules of
Washington App. No. 17CA8 12
grammar and common usage.” State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-
4960, 815 N.E.2d 1107, ¶ 21. However, when a legislative or administrative “definition is
available, we construe the words of the statute [or rule] accordingly.” State v. Gonzales, --Ohio
St.3d--, 2017-Ohio-777, --N.E.3d--, ¶ 4, citing R.C. 1.42.
{¶26} A statute or rule is ambiguous when the language “is ‘capable of bearing more
than one meaning.’ ” Jacobson at ¶ 8, quoting Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-
2163, 992 N.E.2d 1111, ¶ 16. A court that is reviewing a statute or administrative rule for
ambiguity should direct its “ ‘attention * * * beyond single phrases, and * * * should consider, in
proper context, all words used by the [rule-making body] in drafting [the regulation] with a view
to its place in the overall [regulatory] scheme.’ ” Gonzales at ¶ 5, quoting D.A.B.E., Inc. v.
Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 19.
“Without ‘an initial finding’ of ambiguity, ‘inquiry into legislative intent, legislative history,
public policy, the consequences of an interpretation, or any other factors identified in R.C. 1.49
is inappropriate.’ ” Jacobson at ¶ 8, quoting Dunbar at ¶16.
{¶27} 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. “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).
{¶28} In the case at bar, therefore, we first review the language contained in the
applicable statutes and administrative rules to ascertain whether they plainly and unambiguously
Washington App. No. 17CA8 13
describe the requisites of a “valid permit” to administer a BAC DataMaster test. If so, we must
apply them as written.
E. Valid Permit
{¶29} Neither R.C. 4511.19(D)(1)(b) nor R.C. 3701.143 defines “valid permit.” Black’s
Law Dictionary (7th Ed.1999) defines “valid” as follows: “Legally sufficient; binding * * * *
Meritorious”. Id. at 1548; see also State ex rel. Hayburn v. Kiefer, 68 Ohio St.3d 132, 133, 624
N.E.2d 699 (1993), quoting Webster’s New World Dictionary 1568 (2 College Ed.1982)
(defining “valid” to mean “ ‘having legal force’ ”). Black’s Law Dictionary defines a “permit” as
follows: “A certificate evidencing permission; a license”. Id. at 1160.
{¶30} A “valid permit” thus generally means a document of legal efficacy or force,
executed with proper legal authority and formalities that grants a person the right do something.
Within the context of R.C. 4511.19(D)(1)(b), a “valid permit” must be issued in accordance with
R.C. 3701.143. R.C. 3701.143 requires the ODH to (1) “approve satisfactory techniques or
methods” for chemically analyzing a person’s whole blood, blood serum or plasma, urine,
breath, or other bodily substance in order to ascertain the amount of alcohol in the person’s
whole blood, blood serum or plasma, urine, breath, or other bodily substance, (2) “ascertain the
qualifications of individuals to conduct such analyses,” and (3) “issue permits to qualified
persons authorizing them to perform such analyses.” Thus, under R.C. 4511.19(D)(1)(b), a “valid
permit” appears to mean a legally efficacious document that the ODH executed that grants a
qualified person, as determined by the ODH, the right to chemically analyze a person’s whole
blood, blood serum or plasma, urine, breath, or other bodily substance in order to ascertain the
amount of alcohol in the person’s whole blood, blood serum or plasma, urine, breath, or other
bodily substance.
Washington App. No. 17CA8 14
{¶31} In the case at bar, the record unquestionably shows that Sergeant Knowlton
possessed a permit, i.e., a document that granted him the right to perform BAC DataMaster tests.
The state introduced a document issued by the Ohio Department of Health with an effective date
of April 29, 2016, and an expiration date of April 29, 2017. The document grants Sergeant
Knowlton the right to administer breath tests using the BAC DataMaster. The document is
entitled, “Alcohol and Drug Testing,” and states that the document’s purpose is “to certify that
[Sergeant] Knowlton has qualified for and is hereby issued Senior Operator permit number * * *
under the provisions of section 3701.143 of the Ohio Revised Code and chapter 3701-53-01
through 10 of the Ohio Administrative Code and is authorized to perform breath tests in
accordance with such laws and rules, using the BAC DataMaster instrument.” The document is
signed by the director of health. Consequently, the evidence is clear that Sergeant Knowlton
possessed a “permit” at the time he administered Williams’s breath test.
{¶32} The next question concerns whether Sergeant Knowlton’s permit was “valid” at
the time he administered Williams’s breath test. Thus, we must examine whether Sergeant
Knowlton’s permit had legal efficacy or force and was issued with the appropriate legal authority
and formalities.
{¶33} Sergeant Knowlton’s permit contains language indicating that it had legal efficacy
or force and was issued with the appropriate legal authority. The permit states that Sergeant
Knowlton “qualified for” the BAC DataMaster senior operator’s permit; that he was issued the
permit under the authority of R.C. 3701.143 and chapter 3701-53-01 through 10 of the Ohio
Administrative Code; and that he is authorized to perform breath tests using the BAC
DataMaster. The words grant Sergeant Knowlton the right to perform breath tests and show that
the permit was issued in accordance with the appropriate legal authority and formalities.
Washington App. No. 17CA8 15
{¶34} Despite the apparent clarity and validity of Sergeant Knowlton’s permit, the trial
court determined that it was invalid because the sergeant did not accept subject samples during
his proficiency examination. We find it questionable whether a trial court may invalidate a
permit that the director of health issued based upon the court’s belief that the permit holder failed
to meet the qualifications set forth in the regulations. See Katz, Ohio Arrest, Search & Seizure,
Regulation of breath-testing equipment (June 2016 Update), Section 18:19 (footnote omitted)
(stating that “[t]he state need not introduce any additional evidence of proficiency in
breathtesting instruments outside of their valid permit or access card”); State v. Dukes, 2015-
Ohio-676, 29 N.E.3d 299, ¶ 51 (8th Dist.) (concluding that evidence that laboratory held permit
issued by the ODH necessarily established that laboratory complied with proficiency
examination requirements). As our subsequent discussion explains, the regulations indicate that
the ODH determines whether an individual possess the requisite qualifications to obtain a BAC
DataMaster senior operator’s permit. Thus, if the ODH issues a senior operator permit to an
individual, the ODH necessary determined that the individual possesses the requisite
qualifications. See R.C. 3701.143 (stating that the ODH shall issue permits to qualified persons).
For a court to question the ODH’s determination that an individual qualifies for a senior
operator’s permit—whether upon initial issuance or renewal—seems to usurp the authority the
General Assembly has entrusted to the ODH to determine the means and methods of analyzing
alcohol content in an individual. See Burnside, supra, at ¶ 32 (emphasis sic.) (“Indeed, the
General Assembly instructed the Director of Health—and not the judiciary—to ensure the
reliability of alcohol-test results by promulgating regulations precisely because the former
possesses the scientific expertise that the latter does not.”). However, we are uncertain whether
documentary evidence of a BAC DataMaster senior operator’s permit issued by the ODH that is
Washington App. No. 17CA8 16
in effect on the date of the breath test, such as Sergeant Knowlton’s, creates an irrebuttable
presumption of validity, or whether it merely creates a rebuttable presumption of validity.
Therefore, we will review the applicable regulations to ascertain the correctness of the trial
court’s conclusion that compliance with the proficiency examination requirements is a
prerequisite to a valid BAC DataMaster senior operator’s permit renewal.
F. BAC DataMaster Qualifications
{¶35} Ohio Adm.Code 3701–53–07(C) states that a “senior operator” or an “operator” is
qualified to perform breath tests. The BAC DataMaster is an approved breath testing evidential
instrument. Ohio Adm.Code 3701–53–02(A)(1). Thus, a “senior operator” or an “operator” is
qualified to administer the BAC DataMaster. Ohio Adm.Code 3701–53–07(C).
{¶36} A person who wishes to function as a senior operator or an operator of a BAC
DataMaster must apply to the ODH for a permit. Ohio Adm.Code 3701–53–09(B). The rule
further states that the ODH “shall issue permits to perform tests to determine the amount of
alcohol in a person’s breath to individuals who qualify under the applicable provisions of rule
3701-53-07 of the Administrative Code.” Id.
{¶37} Ohio Adm.Code 3701–53–07(D) sets forth the qualifications for obtaining a BAC
DataMaster senior operator’s permit:
(1) Being a high school graduate or having passed the “General Education
Development Test”;
(2) Being a certified law enforcement officer sworn to enforce sections 4511.19
and/or 1547.11 of the Revised Code, or any other equivalent statute or local
ordinance prescribing a defined or prohibited breath alcohol concentration, or a
certified corrections officer, and;
Washington App. No. 17CA8 17
(3) Having demonstrated that he or she can properly care for, maintain, perform
instrument checks upon and operate the evidential breath testing instrument by
having successfully completed a basic senior operator, upgrade or conversion
training course for the type of approved evidential breath testing instrument for
which he or she seeks a permit.
{¶38} A BAC DataMaster senior operator’s permit “shall expire one year from the
effective date, unless revoked or voluntarily surrendered” before the expiration date. Ohio
Adm.Code 3701-53-09(C). However, a person holding a BAC DataMaster senior operator’s
permit “may seek renewal * * * by filing an application with the director no sooner than six
months before the expiration date of the current permit.” Id.
{¶39} Ohio Adm.Code 3701-53-09(F) sets forth the qualifications for renewal of a BAC
DataMaster senior operator’s permit and states:
To qualify for renewal of a permit under paragraph (A) or (B) of this rule:
(1) A permit holder shall present evidence satisfactory to the director that he or
she continues to meet the qualifications established by the applicable provisions
of rule 3701-53-07 of the Administrative Code for issuance of the type of permit
sought.
****
{¶40} In addition to the initial application and renewal procedures, Ohio Adm.Code
3701-53-08(C) states that BAC DataMaster senior operator permit holders or applicants “shall be
subject to surveys and proficiency examinations conducted at the director’s discretion.” “A
survey shall consist of a review of the permit holder’s or applicant’s compliance with the
requirements of this chapter.” Ohio Adm.Code 3701-53-08(C)(1). “A proficiency examination
Washington App. No. 17CA8 18
shall consist of an evaluation of the permit holder’s or applicant’s ability to test samples using
the evidential breath testing instrument for which the permit is held or sought.” Ohio Adm.Code
3701-53-08(C)(2). “During proficiency examinations, senior operators, operators and applicants
shall accept samples, perform tests and report all results to a representative of the director or the
proficiency examination administered by a national program for proficiency testing.” Ohio
Adm.Code 3701-53-08(E).
G. Interpretation
{¶41} The plain language of the administrative rules does not support a conclusion that a
valid permit renewal requires a BAC DataMaster senior operator to undergo a proficiency
examination. Ohio Adm.Code 3701-53-09(F) contains the requirements for obtaining a BAC
DataMaster senior operator renewal and does not mention or reference proficiency examinations
or Ohio Adm.Code 3701-53-08(E). Rather, it plainly states that a BAC DataMaster senior
operator permit holder qualifies for renewal of that permit so long as the permit holder
“present[s] evidence satisfactory to the director that he or she continues to meet the qualifications
established by the applicable provisions of rule 3701-53-07 of the Administrative Code for
issuance of the type of permit sought.” The qualifications contained in the “applicable provisions
of” Ohio Adm.Code 3701-53-07 for BAC DataMaster senior operators are contained in Ohio
Adm.Code 3701-53-07(D). An individual qualifies for a BAC DataMaster senior operator’s
permit if the individual (1) is a high school graduate or passed the “General Education
Development Test,” (2) is a certified law enforcement officer, and (3) demonstrates that the
individual “can properly care for, maintain, perform instrument checks upon and operate the
evidential breath testing instrument by having successfully completed a basic senior operator,
upgrade or conversion training course for the” BAC DataMaster.
Washington App. No. 17CA8 19
{¶42} We have found nothing in the ODH regulations that requires a BAC DataMaster
senior operator seeking a permit renewal to undergo a proficiency examination during which the
individual must accept samples in order to qualify for renewal. Instead, Ohio Adm.Code 3701-
53-08 clearly indicates that the ODH possesses discretion to conduct proficiency examinations
upon BAC DataMaster senior operator permit holders. The rule does not indicate that the ODH
must conduct a proficiency examination before renewing a BAC DataMaster senior operator’s
permit.
{¶43} Therefore, we disagree with the trial court’s conclusion that Ohio Adm.Code
“3701-53-08(C)(1) and (2) delineate[] the standards for continuing qualification.” Instead, Ohio
Adm.Code 3701-53-09(F) plainly states that a BAC DataMaster senior operator permit holder
qualifies for renewal of that permit so long as the permit holder “present[s] evidence satisfactory
to the director that he or she continues to meet the qualifications established by the applicable
provisions of rule 3701-53-07 of the Administrative Code for issuance of the type of permit
sought.” Thus, Ohio Adm.Code 3701-53-07, and not Ohio Adm.Code 3701-53-08(C)(1) and (2),
delineates the standards for renewal.
{¶44} Consequently, we agree with the State that the trial court misconstrued the
applicable administrative regulations to require a BAC DataMaster senior operator permit holder
seeking a renewal to complete a proficiency examination as contemplated in Ohio Adm.Code
3701-53-08 before the renewal becomes valid. The trial court thus incorrectly concluded that
Sergeant Knowlton lacked a valid permit and incorrectly suppressed Williams’s BAC
DataMaster test results.
IV. Conclusion
Washington App. No. 17CA8 20
{¶45} Accordingly, based upon the foregoing reasons, we sustain the State’s sixth
assignment of error. The State’s remaining assignments of error are moot; and we need not
address them. App.R. 12(A)(1)(c). We reverse the trial court’s decision suppressing Williams’s
BAC DataMaster test results and remand for further proceedings.
JUDGMENT REVERSED AND CAUSE REMANDED.
Washington App. No. 17CA8 21
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED AND CAUSE IS REMANDED.
Appellee shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Marietta
Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court,
By:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.