State v. Easter , 75 Ohio App. 3d 22 ( 1991 )

I respectfully dissent.

These two cases deal with the proper certification of the calibration tests of intoxilyzers. I agree that under the Rules of Evidence there probably is enough to establish the authenticity of the test and the certificates. However, I think the real issue is whether they can be authenticated by any other way than that which is established by the Department of Health. Since the legislature has adopted this method of testing and has given the Department of Health the authority to set the standards, we ought not to change what they have decided is to be done. The department could have adopted other regulations to ensure the accuracy of the breath tests or used other certification standards, but it didn't.

The presumption created under R.C. 4511.19 arises only if the test is given in accordance with the department regulations. If they are not in accordance, there is no presumption.

I urge this court to adopt the reasoning of the Tenth District Court of Appeals in Columbus v. Robbins (1989), 61 Ohio App. 3d 324, 572 N.E.2d 777.

The Tenth District was presented with the issue facing this court both in Pariscoff and in these cases on appeal. InRobbins, the Tenth District Court of Appeals held:

"Pursuant to Ohio Administrative Code 3701-53-04, the Ohio Department of Health (ODH) must produce a document certifying that the solution used to calibrate a BAC verifier was proper. The document admitted at trial was not certified by ODH but was only a copy of an uncertified ODH document maintained in the police files. While the document in question was attested by Sgt. K.R. Bell as the keeper of the calibration log book for that particular machine, it was not certified by ODH as mandated by Evidence Rule 1005 and 902. The fact that the uncertified document was sent to another agency who could certify that it was part of its official file does not eliminate the deficiency. Hence, the document does not comply with the requirements of Ohio Administrative Code 3701-53-04.

"Without a properly authenticated calibration solution certificate, the results of the defendant's BAC verifier test can not be admitted. See State v. Ward (1984), 15 Ohio St. 3d 355 [15 OBR 477, 474 N.E.2d 300]. In order for a breath analysis to be admitted it must be shown that the procedures prescribed by the Department of Health, pursuant to Revised Code 3701.143, have been precisely followed. Cincinnati v. Sand (1975), 43 O.S.[Ohio St.]2d 79 [72 O.O.2d 44, 330 N.E.2d 908]. One such procedure is that the machine is properly calibrated. Ohio Administrative Code 3701-53-04. Without evidence of calibration, the BAC verifier results must be excluded."

I find the facts in Robbins to be on "all fours" with the facts here, and find the reasoning of the Tenth District to be most persuasive.

One point that should be mentioned is that we are undercutting the Department of Health by not enforcing its regulations. If police agencies do not follow the prescribed routine, but we let the evidence in anyway, how can the Department of Health see that its regulations are obeyed or that the tests are properly administered?

One other point that should be made is that this court is climbing onto an endless treadmill of cases. The Tenth District takes a far more sensible and efficient approach when it says: Do it right or not at all. I anticipate that the police officers in the Tenth District will learn from their mistakes, and noncompliance with the regulations will disappear in a short period of time.

But here in the Fourth District, as long as these tests are given without showing, as mentioned in Robbins, supra, that the regulations were precisely followed, there will continue to be appeals over deviations from the regulations. This court will continue to construe and reconstrue the regulations in terms of the facts in each deviation in case after case after case. And since the police officers are not likely to learn from their mistakes, the mistakes are likely to go uncorrected.

I will get off that treadmill now.

Thus, I dissent.