State v. Mulhern , 72 Ohio App. 3d 250 ( 1991 )

This case, an appeal from the Jackson Municipal Court, presents a simple issue. Appellant, William E. Mulhern, was charged with DUI and filed a motion to suppress the results of a blood alcohol test administered on a BAC Verifier. The motion was based on the claim that the test was not administered in accord with the rules of the Ohio Department of Health. The trial court denied the motion to suppress.

Mulhern appeals, designating one assignment of error,i.e., that the court erred in finding the test results were achieved in compliance with the Department of Health regulations.

The facts in this case are not, essentially, disputed. The machine in question here was located in the Jackson Highway Patrol post. It was removed for servicing and returned to its original place, facing in the same direction. It appears that radio frequencies can interfere with the accuracy of these machines, so the Department of Health has adopted a regulation that all machines must be tested for this kind of interference in the exact spot where they are used. These RFI test forms are to be kept with the machines, and the regulation goes on to provide,

"A new survey shall be conducted when a breath testing instrument's spatial placement or axis is changed from that designated in the most recent form."

Appellant contends that taking the machine away and then returning it constitutes a change as contemplated by the regulations. Appellee asserts that movement alone is not change, and that if the machine is returned to the very place from which it was taken, there is no spatial or axial change. In support of its position, the state offered as an exhibit a letter from the Department of Health stating that it was the position of the department that where a machine was removed for cleaning or servicing and returned to the same location facing the same way, a new RFI test was not necessary.

Appellant concedes that the courts must give due deference to the agency's interpretations of its own regulations, Jones MetalProducts v. Walker (1972), 29 Ohio St.2d 173, 58 O.O.2d 393,281 N.E.2d 1, but argues that interpretation can only be used when there is an ambiguity in the regulation. Appellant claims there is no ambiguity here.

We believe there is. Appellant interprets the regulation as saying movement is equal to change. In effect, appellant is asserting that since a thing can only exist in both time and space, a break in the temporal continuity of the placement constitutes change as is contemplated by the regulations. This is not an unreasonable position, but it does create an ambiguity.

The Department of Health has considered this ambiguity and has advised operators of the machines that temporal continuity is not necessary. It has interpreted its own regulations to say that if the machine is returned to the very same place facing the same way, no new test is required. We as a court must defer to that interpretation.

We find no error in the trial court's decision that held there was no violation of a Department of Health regulation, and that the test was properly administered.

Assignment of error one is overruled.

The judgment of the trial court is affirmed.

Judgment affirmed.

HARSHA, J., concurs.

HOFSTETTER, J., concurs in judgment only.

EDWIN T. HOFSTETTER, J., retired, of the Eleventh Appellate District, sitting by assignment.