State v. Dvorak , 65 Ohio App. 3d 44 ( 1989 )

Defendant-appellant, Don Dvorak, was charged with driving under the influence of alcohol, R.C. 4511.19(A)(1); operating a motor vehicle with a prohibited breath-alcohol content, R.C.4511.19(A)(3); and speeding, R.C. 4511.21(D). Prior to trial, Dvorak filed a motion in limine seeking to limit the use of any breath test results, claiming radio frequency interference and that other test requirements were not met during administration of the breath test. The trial court denied the motion in limine because it was not timely filed.

At trial, the state presented testimony of Patrolman Jackson, the arresting officer who conducted the intoxilyzer test. Patrolman Jackson testified to the procedures he followed in administering the intoxilyzer test to Dvorak. On Patrolman Jackson's direct examination, Dvorak objected to the admission of the intoxilyzer test results based on the state's failure to lay a proper foundation. The trial court overruled the objection and admitted Dvorak's test results. While cross-examining Patrolman Jackson, Dvorak raised the issue of calibration requirements in order to question the foundational requirement that the intoxilyzer was working properly. The state objected on the basis that the calibration issues should have been resolved by way of a pretrial motion. The trial court agreed that the calibration issue should have been raised in a pretrial motion.

The jury found Dvorak not guilty of driving under the influence of alcohol. The jury found Dvorak guilty of speeding and operating a motor vehicle with a prohibited breath-alcohol content. Dvorak appeals, contending that the intoxilyzer test results were improperly admitted at trial because the state failed to lay a proper foundation.

Assignment of Error "Before the results of an intoxilyzer test given an accused are admissable [sic] in evidence against [sic], it is incumbent upon the state to show that the instrument was in proper working order and the instant case such was not the fact."

Dvorak argues that the trial court erred in admitting the intoxilyzer test results because the state failed to present evidence substantiating that the instrument was in proper working order pursuant to Ohio Department of Health ("ODH") regulations. Specifically, Dvorak contends that the state had to affirmatively show that the instrument met the calibration requirements before being admitted into evidence.

This court recently stated that a challenge to the results of a breath-alcohol test on the basis of failure to comply with ODH regulations should be brought as a motion to suppress. State v.Earle (Aug. 2, 1989), Summit App. No. 13957, unreported, 1989 WL 86321. In so stating, this court relied upon a statutory exclusionary rule which mandates that the trial court exclude test results when the state has not complied with ODH regulations. Id., citing Newark v. Lucas (1988), 40 Ohio St.3d 100, 532 N.E.2d 130.

After Earle, this court must determine if a pretrial motion to suppress is the only challenge a person may assert against the state for alleged noncompliance with ODH regulations when that person is charged under R.C. 4511.19(A)(2), (3) or (4). To hold otherwise would permit the defendant to raise the issue of suppression of evidence during the course of trial.

If a defendant fails to have the evidence suppressed pretrial, that defendant waives any requirement upon the state to establish additional foundation for the evidence at trial. The evidence is admissible at trial without the state further establishing compliance with the ODH regulations. Also, the defendant may not contest the evidence through cross-examination, because to allow such contest would permit the defendant to challenge the evidence at trial rather than pretrial as mandated. We believe that these conclusions are inescapable in view of the holding in Earle, supra, and the clear provisions of Traf.R. 11(B) and 11(F).

In the case sub judice, the trial court properly overruled defendant's objection to admissibility of the intoxilyzer test result based upon the state's failure to lay a proper foundation. The trial court properly sustained the state's objection to defendant's cross-examination concerning the ODH requirements.

The trial court judgment is affirmed.

Judgment affirmed.

BAIRD and REECE, JJ., concur.

CACIOPPO, P.J., dissents.