State v. Lake , 151 Ohio App. 3d 378 ( 2003 )

{¶ 24} I must respectfully dissent with part of the analysis the majority uses to resolve this case, and with the ultimate resolution of the case. I conclude that the calibration solution certificates would not have been admissible under Evid.R. 902, but would have been admissible under Evid.R. 1005. I also conclude that, even if the calibration solution certificates were not properly authenticated pursuant to Evid.R. 902 and 1005, the proper time for Appellant to raise the issue of authenticity was at trial in order to preserve the matter as an appealable issue.

{¶ 25} Appellant's two assignments of error assert:

{¶ 26} "The trial court erred in admitting into evidence, at the suppression hearing, two instrument check solution documents which were not authenticated pursuant to the Ohio Rules of Evidence.

{¶ 27} "The trial court erred in denying appellant's motion to suppress the bac datamaster test results when the state failed to produce proper evidence at the hearing of its compliance with the Ohio Department of Health Regulations for calibration of the machine."

{¶ 28} These two assignments of error are part of one single assertion, namely, that Appellee did not provide sufficient evidence at the motion to suppress hearing to show that the state complied with the procedures for obtaining a valid breathalyzer test result.

{¶ 29} Appellant was indicted on February 13, 2001, on one count of driving under the influence of alcohol ("DUI") in violation of R.C.4511.19(A)(6). The charge had a felony specification, alleging that Appellant had three prior DUI convictions within six years. R.C.4511.99(A)(8)(a)(1). The charge was based on events which occurred on October 9, 2000.

{¶ 30} On April 17, 2001, Appellant filed a Motion to Suppress. Two of the issues Appellant raised in his motion to suppress were whether the breathalyzer machine used to calculate Appellant's breath alcohol content had been properly calibrated, and whether the alcohol solution that was used to calibrate the machine was properly maintained. A hearing on the motion to suppress was held on June 11, 2001. At the hearing, Appellee produced copies of the calibration solution certificates that corresponded with the bottles of alcohol solution used to calibrate the BAC Datamaster machine. (Tr., State's Exhs. 5 and 7.) Appellee requested that the court "conditionally accept" the exhibits until the certified copies of the documents arrived. (Tr. p. 54.)

{¶ 31} Appellant objected to the introduction of these documents on the basis that they were not properly authenticated. (Tr. p. 54.) Appellant argued that the suppression hearing was equivalent to the actual trial, and that Appellee was required to provide the same evidence that would have been required at trial. (Tr. p. 54.)

{¶ 32} The trial court asked both parties to brief the evidentiary issues. The court overruled Appellant's motion to suppress on July 10, 2001. The court held that the calibration solution certificates were admissible as duplicates under Evid.R. 1003. The court ruled that there were no questions raised as to the authenticity or reliability of the duplicates. The court then held that the duplicates were self-authenticating under Evid.R. 902(A). There is no Evid.R. 902(A), but we assume that the court was referring to Evid.R. 902(1).

{¶ 33} Appellant subsequently pleaded no contest to the charge, and this timely appeal followed.

{¶ 34} The overall question on appeal is whether the trial court should have granted the motion to suppress. Appellant questions whether Appellee provided the trial court with enough of an evidentiary basis to overrule the motion. Specifically, Appellant believes that Appellee did not properly authenticate the calibration solution certificates, and in failing to do so, failed to provide a basis for admitting the breathalyzer test results.

{¶ 35} With respect to motions to suppress, the appropriate standard of review is to determine whether the trial court's findings are supported by competent credible evidence. State v. Lloyd (April 15, 1998), 7th Dist. No. 96 BA 31, unreported, citing State v. Winand (1996), 116 Ohio App.3d 286, 288, 688 N.E.2d 9. Although deference is given to the trial court's finding of facts, we must independently determine whether the trial court met any applicable legal standards.State v. Williams (1993), 86 Ohio App.3d 37, 41, 619 N.E.2d 1141.

{¶ 36} Appellant was charged with DUI in violation R.C.4511.19(A)(6). This part of the DUI statute involves strict liability and as such, the state only needs to prove that Appellant was operating a motor vehicle in Ohio and that his breath alcohol content was at the prescribed level. Defiance v. Kretz (1991), 60 Ohio St.3d 1, 5-6,573 N.E.2d 32. The accuracy of the chemical test results is critical in determining the outcome of the case. Id.

{¶ 37} Ohio has very detailed administrative procedures for obtaining valid chemical test results in DUI cases. Ohio Adm. Code3701-51-01 et seq. A defendant who wishes to challenge the admissibility of chemical test results in a DUI case must first raise the challenge in a pretrial motion to suppress. State v. French (1995), 72 Ohio St.3d 446,650 N.E.2d 887, paragraph one of syllabus. Once the defendant has properly notified the state of the specific nature of the evidentiary challenge, the state must prove that it substantially complied with the appropriate administrative regulations set forth by the Ohio Department of Health ("ODH") in order for breath test results to be admissible as evidence in a DUI case. State v. Plummer (1986), 22 Ohio St.3d 292, 294, 22 OBR 461, 490 N.E.2d 902.

{¶ 38} Appellant clearly notified Appellee that he was challenging the calibration of the breathalyzer machine and more specifically, the reliability of the alcohol solution used to calibrate the machine. The burden was on Appellee to show substantial compliance with the ODH regulations. Ohio Adm. Code 3701-53-04(A)(1) requires that a breathalyzer be checked at least every seven days with an ethyl alcohol solution approved by the director of the ODH. In most cases the state may establish the validity of the ethyl alcohol solution by submitting documentary evidence in the form of a "batch and bottle" affidavit or a calibration solution certificate from the ODH. State v. Pagan (Nov. 10, 1999), 7th Dist. No. 97 CA 80. The state must ultimately produce an authenticated calibration solution certificate, an authenticated batch and bottle affidavit, or some other admissible evidence to prove compliance with ODH regulations. Id.

{¶ 39} Appellant's argument on appeal is that the calibration solution certificates were not properly authenticated. The trial court concluded that the photocopies of the calibration solution certificates should be treated as if they were original documents, and that the original documents would have been self-authenticating under Evid.R. 902(1), which deals with public documents bearing a state seal. The majority completely sidesteps the key issues in this case, namely, whether a photocopy of a state seal is admissible to the same extent that the actual seal would be, and whether the copies would be self-authenticating under Evid.R. 902(1). I conclude that a photocopy of a state seal is not the equivalent of the seal itself for purposes of Evid.R. 902(1). I also agree with the majority that the photocopies of the calibration solution certificates were not properly authenticated under any other provision of Evid.R. 902.

{¶ 40} Evid.R. 1003 states: "[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."

{¶ 41} Evid.R. 1003 does not provide for the authentication of a document, but rather, only addresses the circumstances under which a duplicate may be treated as an original document. Even if the duplicate is deemed to be an original, the document must be authenticated as part of the process of being admitted into evidence. State v. Bolden (Dec. 3, 2001), 5th Dist. No. 00 CA 90; State v. Carter (Sept. 26, 2000), 4th Dist. No. 99CA2479.

{¶ 42} Authentication is governed in part by Evid.R. 901, et seq. Evid.R. 901(A) states: "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

{¶ 43} Evid.R. 902 also governs the authentication of public records. If the requirements of Evid.R. 902 are met, a document is "self-authenticating," meaning that no other extrinsic evidence is required to authenticate the document.

{¶ 44} Evid.R. 902(1) requires:

{¶ 45} "Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

{¶ 46} "(1) Domestic public documents under seal

{¶ 47} "A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution."

{¶ 48} Evid.R. 902(1) provides for self-authentication if the document itself bears an official seal of a public officer or office, and if the document bears a signature purporting to be an attestation or execution of the document.

{¶ 49} The trial court concluded that the copies of the calibration solution certificates satisfy the requirements Evid.R. 902(1). I do not agree with this conclusion.

{¶ 50} First, Evid.R. 902(1) would be thwarted if a photocopy of an official seal could be treated as the original seal in order to make the document self-authenticating. The Staff Notes to Evid.R. 902 indicate that the purpose behind the use of a seal is to prevent forgery: "[t]he likelihood of a forgery of a public document under seal is minimal, but the possibility of a forgery of a signed public document not under seal is somewhat greater." I agree with the holding of the Eleventh District Court of Appeals when it stated that, "in order to be self-authenticating, the certification of the copy of a public document must eliminate the possibility of forgery by the use of a seal. This purpose is defeated when the trial court finds a seal is present based on minimal indicia of its impression." State v. Clites (1991),73 Ohio App.3d 36, 40, 596 N.E.2d 550.

{¶ 51} The seal referred to in Evid.R. 902(1) is a three dimensional object, either an impression made on a document or an impression made on an adhesive label which is then affixed to a document. R.C. § 5.11; Clites, supra, 73 Ohio App.3d at 40. By its very nature it cannot be photocopied because a photocopy is not a three-dimensional representation. Therefore, I would hold that a photocopied representation of an official seal can not be treated as the equivalent of the actual seal.

{¶ 52} My conclusions concerning Evid.R. 902(1), though, do not require a reversal in this case. There is another evidentiary rule that allowed the trial court to accept the photocopies in lieu of the originals for purposes of the suppression hearing under the facts of this case. Evid.R. 1005 states:

{¶ 53} "The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902, Civ.R. 44, Crim.R. 27 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given."

{¶ 54} Evid.R. 1005 governs not only the admissibility of official records, but also the authentication of those records. Evid.R. 1005 allows authenticity to be proven by the testimony of a witness who has compared the document to the original, or by Evid.R. 902, Crim.R. 27 or Civ.R. 44. Assuming that the two calibration solution certificates at issue could not be authenticated by any of the methods just mentioned, Evid.R. 1005 also allows the contents of the official record to be proven by "other evidence" if, "a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence * * *." There is evidence in the record that Appellee used reasonable diligence to obtain self-authenticating versions of the documents, and that Appellee only submitted the nonconforming photocopies because the self-authenticating copies did not arrive in time for the hearing on Appellant's motion to suppress.

{¶ 55} Furthermore, even if we assume that the copies of the calibration solution certificates did not satisfy Evid.R. 902(1) for purposes of trial, they represented adequate evidence for purposes of a motion to suppress chemical test results in a DUI case. Although the Ohio Supreme Court has held that a defendant charged with a violation of R.C. § 4511.19(A) must raise challenges to chemical test results in a motion to suppress, the Court also held:

{¶ 56} "This does not mean, however, that the defendant may not challenge the chemical test results at trial under the Rules of Evidence. Evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of the chemical test results may still be raised." French, supra, 72 Ohio St.3d at 452,650 N.E.2d 887.

{¶ 57} I interpret French to mean that the purpose of challenging the chemical test results in a motion to suppress is not to make final rulings involving the Rules of Evidence, but rather, to decide the ultimate issue of whether the chemical test results are admissible at trial. The French opinion leaves those disputes that are purely about the Rules of Evidence as issues to be resolved at trial. Appellant's issue in this appeal is purely about the interpretation of the Rules of Evidence, particularly Evid.R. 901, 902, and 1003, and these matters should have been resolved at trial. As Appellant chose not to take this case to trial, the issue is essentially nonreviewable.

{¶ 58} For these reasons, I would overrule Appellant's assignments of error and would affirm the trial court decision.