State v. Aicher ( 2018 )

[Cite as State v. Aicher, 2018-Ohio-1866.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27570
:
v. : Trial Court Case Nos. 2016-TRC-6617
: and 2016-CRB-1842
JOHN F. AICHER :
: (Criminal Appeal from Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 11th day of May, 2018.
...........
NOLAN C. THOMAS, Atty. Reg. No. 0078255, City of Kettering Prosecuting Attorney,
2325 Wilmington Pike, Kettering, Ohio 45420
Attorney for Plaintiff-Appellee
BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
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{¶ 1} Defendant-appellant, John F. Aicher, appeals from the decision of the
Kettering Municipal Court overruling his motion to suppress evidence flowing from field
sobriety tests and a breath sample taken following a traffic stop for expired license plates.
In support of his appeal, Aicher contends that the officer on duty lacked a reasonable,
articulable suspicion that he was driving under the influence of alcohol to justify
performing field sobriety tests. Aicher also contends that the breath sample he provided
was not tested in compliance with the Ohio Department of Health’s regulations and
therefore should not have been deemed admissible for trial. For the following reasons,
the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On August 6, 2016, Aicher was arrested and charged with two counts of
operating a vehicle while under the influence of alcohol (“OVI”) in violation of R.C.
4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d). Aicher was also charged with improper
display of license plates in violation of Kettering Local Ordinance 436.09, possession of
drug paraphernalia in violation of R.C. 2925.14, and possession of an open container in
violation of R.C. 4301.62. The charges arose after Aicher was pulled over by Officer
Bradley Lambert of the Kettering Police Department for driving with expired license plates.
The traffic stop expanded into an OVI investigation after Lambert made certain
observations that led him to believe Aicher was driving under the influence of alcohol.
After conducting various field sobriety tests, Lambert arrested Aicher for driving under the
influence and conducted an inventory search of Aicher’s vehicle. During the inventory
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search, Lambert discovered an open container of alcohol and drug paraphernalia.
Aicher later submitted to an alcohol breath test that confirmed he had been operating his
vehicle while over the legal limit.
{¶ 3} Following his arrest, Aicher pled not guilty to all the charges. Thereafter,
Aicher filed a motion to suppress the evidence flowing from the field sobriety tests and
his breath sample. In support of his motion, Aicher argued that he was unlawfully
detained during the field sobriety tests because Officer Lambert did not have a
reasonable, articulable suspicion to believe that he was driving under the influence of
alcohol. Aicher also argued that his breath sample was inadmissible because it was not
tested in compliance with the Ohio Department of Health’s regulations.
{¶ 4} On December 14, 2016, the trial court held a hearing on Aicher’s motion to
suppress. At the hearing, Officer Lambert testified that he has been a Kettering police
officer for over 15 years and that he has made over 300 OVI arrests during his tenure as
an officer. Lambert also indicated that he received alcohol detection training based on
National Highway Traffic Safety Administration (“NHTSA”) standards while he was at the
Ohio State Basic Peace Officer Training Academy. Lambert further testified that he has
since received regular updates on his training by attending drug and alcohol recognition
courses through Advanced Roadside Impaired Driving Enforcement (“ARIDE”) and
Alcohol Detection and Prosecution (“ADAP”).
{¶ 5} Regarding the incident in question, Officer Lambert testified that at 1:05 a.m.
on August 6, 2016, he observed a gray Volkswagen with expired license plates driving
near the intersection of Wilmington Pike and Ansel Drive in Kettering, Ohio. Lambert
testified that he conducted a traffic stop based on the expired plates and made contact
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with the driver, later identified as Aicher. Upon approaching Aicher and speaking with
him, Lambert testified that he smelled “a moderate odor of an alcohol beverage upon
[Aicher’s] breath as he would speak.” Suppression Hearing Trans. (Dec. 14, 2016), p.
53. Lambert also testified that he detected a faint odor of burnt marijuana and noticed
that Aicher’s eyes were glassy and that some of his words “would become a little bit
slurred at times.” Id. Lambert further testified that Aicher informed him that he was
coming from the Oregon District, which he explained is a bar district in downtown Dayton.
Lambert also testified that Aicher admitted to having “a couple” alcoholic beverages to
drink that night. Id. at p. 54.
{¶ 6} Based on these observations, Officer Lambert expanded the scope of the
traffic stop to perform field sobriety testing. According to Lambert, Aicher’s performance
on the field sobriety tests confirmed his belief that Aicher was driving under the influence
of alcohol. As a result, Lambert testified that he arrested Aicher at 1:22 a.m. Following
Aicher’s arrest, Lambert testified that he and the other officer on duty, Officer Spinks,
performed an inventory search of Aicher’s vehicle, which yielded an open flask containing
a small amount of whiskey and a “one hitter” pipe that contained marijuana residue.
{¶ 7} Continuing, Officer Lambert testified that Aicher was transported to jail by
Officer Spinks and that Lambert made contact with Aicher at the jail approximately 20
minutes later. Lambert testified that Aicher was placed in a holding cell and was
monitored by jailer Peter Morris prior to his arrival. Lambert testified that when he made
contact with Aicher in jail, Aicher agreed to take a breath test, which Lambert performed
at 2:07 a.m.
{¶ 8} With regard to the breath test, Officer Lambert testified that he was certified
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by the Ohio Department of Health to perform breath tests using an Intoxilyzer 8000.
Lambert testified that the Intoxilyzer 8000 used to test Aicher was in proper working
condition at the time he conducted the test. Specifically, Lambert testified that the
Intoxilyzer 8000 conducts internal checks and that it would not have performed the breath
test on Aicher had it not been working properly. Lambert testified that the results of the
breath test showed that Aicher’s breath alcohol content was 0.16 grams of alcohol per
210 liters of breath, an amount that is twice the legal limit.
{¶ 9} In addition to Officer Lambert’s testimony, the State presented testimony
from Ohio Department of Health inspector Robert Norbeck. Norbeck testified that on
September 9, 2015, he certified the Intoxilyzer 8000 that was used to test Aicher’s breath
sample. Norbeck thereafter explained the certification process in detail and further
testified that all of the tests he performed on the Intoxilyzer 8000 indicated that the
instrument was in proper working condition and was in compliance with the Ohio
Department of Health’s regulations. Norbeck also confirmed that the Intoxilyzer 8000
was working properly on the day of Aicher’s breath test. Norbeck also identified various
documents and test reports confirming his testimony that the instrument was properly
certified and in working order.
{¶ 10} Following the suppression hearing, the trial court issued a written decision
overruling Aicher’s motion to suppress. In so holding, the trial court found that the State
provided sufficient evidence that the Intoxilyzer 8000 at issue met all of the Ohio
Department of Health’s regulations to provide an admissible breath sample. The trial
court further found that Lambert’s observations of Aicher during the traffic stop provided
Lambert with a reasonable, articulable suspicion that Aicher was driving under the
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influence of alcohol to justify performing field sobriety tests.
{¶ 11} After his motion to suppress was overruled, Aicher entered a no contest
plea to all the charges against him. The trial court then accepted Aicher’s plea and found
him guilty as charged. At sentencing, the trial court merged the two OVI offenses and
sentenced Aicher to 180 days in jail with 176 days suspended. The trial court also
imposed a $1,000 fine with $600 suspended, suspended his driver’s license for 90 days,
and placed him on two years of probation. The trial court further ordered Aicher to pay
a $10 fine for improper display of license plates, a $25 fine for possessing an open
container, and a $25 fine for possessing drug paraphernalia.
{¶ 12} Aicher now appeals from the trial court’s decision overruling his motion to
suppress, raising two assignments of error for review.
Standard of Review
{¶ 13} “In ruling on a motion to suppress, the trial court ‘assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.’ ” State v. Prater, 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7
(2d Dist.), quoting State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d
Dist.1994). “As a result, when we review suppression decisions, ‘we are bound to accept
the trial court’s findings of fact if they are supported by competent, credible evidence.
Accepting those facts as true, we must independently determine as a matter of law,
without deference to the trial court’s conclusion, whether they meet the applicable legal
standard.’ ” Id., quoting Retherford.
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First Assignment of Error
{¶ 14} Aicher’s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN FINDING THAT A REASONABLE
ARTICULABLE SUSPICION OF IMPAIRED DRIVING EXISTED FOR THE
IMPOSITION OF FIELD SOBRIETY TESTING.
{¶ 15} Under his First Assignment of Error, Aicher contends that in overruling his
motion to suppress the trial court erroneously concluded that Officer Lambert had a
reasonable, articulable suspicion that he was driving under the influence of alcohol to
justify prolonging the traffic stop for field sobriety testing. Accordingly, Aicher maintains
that he was unlawfully detained by Lambert in violation of his Fourth Amendment rights.
{¶ 16} “The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution guarantee the right to be free from unreasonable
searches and seizures.” (Citation omitted.) State v. Mays, 119 Ohio St.3d 406, 2008-
Ohio-4539, 894 N.E.2d 1204, ¶ 7. “Stopping an automobile is reasonable if an officer
has probable cause to believe that a traffic violation has occurred.” State v. Brown, 2d
Dist. Greene No. 2011 CA 52, 2012-Ohio-3099, ¶ 13, citing Whren v. United States, 517
U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, “[a]n officer cannot
continue to detain a suspect past the time necessary for investigating and completing the
initial traffic stop merely to conduct a ‘fishing expedition’ for other criminal activity.” Id.,quoting State v. Jones, 2d Dist. Montgomery No. 23920, 2010-Ohio-5522, ¶ 16. To
justify further detention for the administration of field sobriety tests, “the officer must have
a reasonable, articulable suspicion that a person is driving under the influence[.]” Id.,citing State v. Santiago, 195 Ohio App.3d 649, 2011-Ohio-5292, 961 N.E.2d 264, ¶ 11
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(2d Dist.).
{¶ 17} “Whether an officer had a reasonable, articulable suspicion to administer
field sobriety tests is a ‘very fact-intensive’ determination.” Santiago at ¶ 13, quoting
State v. Wells, 2d Dist. Montgomery No. 20798, 2005-Ohio-5008, ¶ 9. In determining
whether there was a reasonable, articulable suspicion, the court must evaluate the totality
of the circumstances. (Citation omitted.) State v. Gladman, 2d Dist. Clark No. 2013 CA
99, 2014-Ohio-2554, ¶ 14. These circumstances must be considered “ ‘through the eyes
of the reasonable and prudent police officer on the scene who must react to events as
they unfold.’ ” Id., quoting State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-
1047, ¶ 14. If there are no articulable facts that give rise to a suspicion of illegal activity,
then the continued detention constitutes an illegal seizure. State v. Robinson, 2d Dist.
Greene No. 2001 CA 118, 2002 WL 1332589, *2 (June 14, 2002), citing State v.
Robinette, 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997).
{¶ 18} As this court has stated previously, “[m]any observations can satisfy this
reasonable, articulable suspicion, including the odor of an alcoholic beverage emanating
from the vehicle, glassy bloodshot eyes, * * * and slow or slurred speech.” (Citation
omitted.) Brown at ¶ 13. However, this court has “not required any specific number of
indicators, nor have we adopted a balancing test.” State v. Adams, 2017-Ohio-7743,
___ N.E.3d ___, ¶ 33 (2d Dist.).
{¶ 19} It is well established by this court that traffic violations of a de minimus
nature, combined with a slight odor of an alcoholic beverage, and an admission of having
consumed “a couple of beers,” are insufficient to support a reasonable, articulable
suspicion of driving under the influence. State v. Spillers, 2d Dist. Darke No. 1504, 2000
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WL 299550, *3 (Mar. 24, 2000). See also State v. Morgan, 2d Dist. Clark No. 07-CA-67,
2007-Ohio-6691, ¶ 9 (one de minimus marked-lane violation, the odor of alcohol of
unspecified intensity, and an admission of consuming alcohol earlier in the day did not
provide reasonable, articulable suspicion of driving under the influence).
{¶ 20} On the other hand, this court has found a reasonable, articulable suspicion
of driving under the influence where a moderate odor of alcohol is detected in conjunction
with multiple other factors, such as glassy or bloodshot eyes, slurred speech, a flush face,
fumbling, or unresponsiveness. See Gladman, 2d Dist. Clark No. 2013 CA 99, 2014-
Ohio-2554, at ¶ 17-18 (moderate odor of alcohol about motorist’s person, glassy and
bloodshot eyes, slurred speech, unresponsiveness to request for registration and proof
of insurance, and admission of consuming three beers in the last hour provided a
reasonable, articulable suspicion of driving under the influence); Adams at ¶ 8, 9, and 34
(moderate odor of alcohol emanating from the defendant’s vehicle, glassy eyes, a flush
face, fumbling with insurance card, minor traffic violation, and admission of consuming
one drink three hours earlier provided a reasonable, articulable suspicion of driving under
the influence); State v. Criswell, 162 Ohio App.3d 391, 2005-Ohio-3876, 833 N.E.2d 786,
¶ 2-3 and 10 (2d Dist.) (moderate odor of alcohol on defendant’s breath, bloodshot and
glassy eyes, driving 23 mph over the speed limit, and admission to having a few beers
justified conducting field sobriety tests).
{¶ 21} However, in State v. Nelson, 2d Dist. Montgomery No. 27324, 2017-Ohio-
2884, this court recently affirmed the trial court’s finding that no reasonable, articulable
suspicion of intoxication existed under circumstances where: (1) the investigating officer
detected a moderate odor of an alcoholic beverage emanating from the defendant’s
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vehicle; (2) the odor of alcohol intensified as defendant spoke; (3) the officer observed
that the defendant had bloodshot and somewhat watery eyes; and (4) the defendant was
pulled over for a de minimus moving violation. Id. at ¶ 10 and 21. In that case, although
the investigating officer testified that the defendant advised him that she “had been
drinking last night,” the trial court found this testimony did not establish that the defendant
admitted to drinking on the night of the traffic stop. Id. at ¶ 10 and 13. The officer in
that case also testified that the defendant exhibited surprise or confusion as to what day
of the week it was, but the trial court found that this testimony was improper to consider
given that the defendant exhibited such confusion after the investigating officer had
already decided to conduct the field sobriety tests. Id.{¶ 22} In deferring to the trial court’s findings of fact in Nelson, we found that the
moderate odor of alcohol that intensified as the defendant spoke, the defendant’s
bloodshot and watery eyes, and the de minimus moving violation did not provide the
officer with a reasonable, articulable suspicion of intoxication for purposes of justifying
field sobriety testing. Id. at ¶ 21. But see id. at ¶ 25 (Tucker, J. dissenting.) (“[T]he trial
court’s factual conclusions regarding Nelson’s excursions into the opposite lane of travel
and, on the second occasion, driving across her lane of travel nearly striking the curb on
the right side of the road coupled with the moderate odor of alcohol emanating from
Nelson and Nelson’s denial of recent alcohol consumption in the face of a moderate odor
of alcohol are specific and articulable facts which, I suggest, compel the conclusion there
existed a reasonable, articulable suspicion Nelson was impaired.”).
{¶ 23} Additionally, in State v. Dixon, 2d Dist. Greene No. 2000-CA-30, 2000 WL
1760664 (Dec. 1, 2000), this court held that there was no reasonable, articulable
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suspicion of driving under the influence where an officer stopped a motorist for a window
tint violation and noticed the motorist had glassy, bloodshot eyes, detected the odor of
alcohol on the motorist’s person, and the motorist admitted to consuming “one or two
beers.” Id. In so holding, this court considered the fact that the traffic violation did not
involve erratic driving and that the motorist’s glassy, bloodshot eyes were “readily
explained by the lateness of the hour, 2:20 a.m.” Id. at *2. We further explained that
“the mere detection of an odor of alcohol, unaccompanied by any basis, drawn from the
officer’s experience or expertise, for correlating that odor with a level of intoxication that
would likely impair the subject’s driving ability, is not enough to establish that the subject
was driving under the influence.” Id.
{¶ 24} Although not binding on this court, in State v. Montelauro, 10th Dist. Franklin
No. 11AP-413, 2011-Ohio-6568, the Tenth District Court of Appeals found that a
reasonable, articulable suspicion of driving under the influence existed under
circumstances very similar to the instant case. In Montelauro, the investigating officer
conducted a traffic stop due to the defendant having expired license plates. Id. at ¶ 9.
Thereafter, upon approaching the defendant’s vehicle, the officer noticed that the
defendant had glassy, bloodshot eyes and immediately detected an obvious odor of an
alcoholic beverage emitting from the vehicle. Id. at ¶ 10. During his testimony, the
officer acknowledged that he did not “feel comfortable saying strong, moderate or light”
with respect to the intensity of the odor of alcohol, but he explained that it was “just
obviously an odor of alcoholic beverage, something I’ve come to detect and I find difficult
to quantify,” and that “it’s just an obvious odor, that’s what it is, and it’s obvious and
apparent to me.” Id. Moreover, when the officer asked the defendant if he had been
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drinking the defendant indicated that he had consumed a Long Island Iced Tea. Id. at ¶
11. The defendant further advised the officer that he was coming from a billiards bar that
the officer knew was having a half-price drink special that night. Id. at ¶ 12.
{¶ 25} In analyzing whether the officer had a reasonable, articulable suspicion of
intoxication to justify field sobriety testing, the court in Montelauro discussed our holding
in Dixon and found it distinguishable. The court explained that:
[T]he facts here are sufficient to provide reasonable suspicion to conduct
field sobriety tests. Although the issue is less clear than it might otherwise
be if the officer had characterized the odor of alcohol as either slight,
moderate or strong, the officer nonetheless noted an obvious odor of
alcohol, which the trial court concluded was more than slight, defendant’s
admission to drinking Long Island Iced Tea, not one or two beers, the officer
knew drinks were half price that night, and defendant had glassy, bloodshot
eyes, all giving the officer a reasonable, articulable suspicion to conduct
field sobriety tests.
Montelauro at ¶ 19. See also State v. Dierkes, 11th Dist. Portage No. 2008-P-0085,
2009-Ohio-2530, ¶ 3-6, 25, and 33 (finding that a reasonable, articulable suspicion of
driving under the influence existed under circumstances where the officer pulled the
defendant over at 4 a.m. for a license plate violation and where the officer noticed a
moderate odor of alcohol emanating from the vehicle and the defendant’s breath and the
defendant admitted to consuming four or five beers seven hours prior).
{¶ 26} Admittedly, there are some aspects of this case that are analogous to
Nelson and Dixon. Nevertheless, upon a thorough review of the record, we find those
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cases are distinguishable and that the present case is more akin to Montelauro and
Dierkes. Unlike Nelson, Officer Lambert testified that Aicher admitted to having a couple
of alcoholic beverages and to having come from a known bar district in downtown Dayton.
Unlike Dixon, Lambert quantified the odor of alcohol he smelled on Aicher’s breath as
moderate. Unlike both Nelson and Dixon, Lambert testified that he detected a faint odor
of burnt marijuana coming from Aicher and noticed that Aicher was slurring some of his
words slightly. While the video evidence indicates that Aicher’s speech was not overly
impaired, his speech was nevertheless slow and slightly slurred at certain times.
{¶ 27} Therefore, considering the hour of the traffic stop, the moderate odor of
alcohol coming from Aicher’s breath, the faint odor of burnt marijuana emanating from
Aicher’s person, Aicher’s admission to drinking a couple of alcoholic beverages at a
known bar district, and Aicher’s slightly slurred speech and glassy eyes, we find that the
totality of the circumstances indicate that Officer Lambert had a reasonable, articulable
suspicion that Aicher was driving under the influence to justify field sobriety testing.
Accordingly, the trial court did not err in overruling Aicher’s motion to suppress on that
basis.
{¶ 28} Aicher’s First Assignment of Error is overruled.
Second Assignment of Error
{¶ 29} Aicher’s Second Assignment of Error is as follows:
THE TRIAL COURT ERRED IN ADMITTING THE BREATH SAMPLE.
{¶ 30} Under his Second Assignment of Error, Aicher contends that the trial court
should have suppressed the evidence obtained from his breath sample because the State
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failed to demonstrate that the sample was tested in compliance with the Ohio Department
of Health’s regulations, which are codified under Chapter 3701-53 of the Ohio
Administrative Code. Specifically, Aicher argues the State failed to establish that: (1) he
was observed for 20 minutes prior to the breath test as required by Ohio Adm.Code 3701-
53-02; (2) the Intoxilyzer 8000 at issue was checked for radio frequency interference as
required by Ohio Adm.Code 3701-53-04(A)(1); (3) the ethyl alcohol solution used to
certify the Intoxilyzer 8000 was refrigerated as required by Ohio Adm.Code 3701-53-
04(E); and (4) the dry gas control check conducted during the certification of the
Intoxilyzer 8000 tested within the target value at variance greater than 0.005 in
compliance with Ohio Adm.Code 3701-53-04(B) and (C).
{¶ 31} Before addressing each of Aicher’s claims, we note that “[a]fter a defendant
files a motion to suppress the admission of alcohol test results, ‘the state has the burden
to show that the test was administered in substantial compliance with the regulations
prescribed by the Director of Health.’ ” Columbus v. Hutchison, 10th Dist. Franklin No.
15AP-667, 2016-Ohio-3186, ¶ 28, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, 797 N.E.2d 71, ¶ 24. Accord State v. Flege, 2d Dist. Greene No. 06-CA-113,
2007-Ohio-2134, ¶ 18, citing State v. Plummer, 22 Ohio St.3d 292, 490 N.E.2d 902(1986). “Substantial compliance creates a ‘presumption of admissibility’ that the
defendant can only rebut ‘by demonstrating that he was prejudiced by anything less than
strict compliance’ with the regulations.” Hutchison at ¶ 28, quoting Burnside at ¶ 24,
citing State v. Brown, 109 Ohio App.3d 629, 632, 672 N.E.2d 1050 (4th Dist.1996).
The 20 Minute Observation Period
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{¶ 32} For his first argument, Aicher contends that the State failed to demonstrate
that he was observed for 20 minutes prior to his breath test as required by Ohio Adm.Code
3701-53-02.
{¶ 33} As a preliminary matter, we note that the appropriate procedure to follow
when testing a breath sample depends on which approved breath-testing instrument is
used. See Ohio Adm.Code 3701-53-02(D) and (E). There is no dispute that Aicher was
tested using an Intoxilyzer model 8000 (OH-5) (“Intoxilyzer 8000”), which is approved as
an evidence breath testing instrument under Ohio Adm.Code 3701-53-02(A)(3).
According to Ohio Adm.Code 3701-53-02(E), breath samples tested with the Intoxilyzer
8000 “shall be analyzed according to the instrument display for the instrument being
used.” In contrast, breath samples tested with the other authorized breath testing
instruments “shall be analyzed according to the operational checklist for the instrument
being used[.]” Ohio Adm.Code 3701-53-02(D).
{¶ 34} None of the relevant Ohio Administrative Code provisions specifically
provide for a 20 minute observation period; however, we recognize that there is a plethora
of case law indicating that the “operational checklist” used for the other types of breath-
testing instruments includes a 20 minute observation period before testing. See Bolivar
v. Dick, 76 Ohio St.3d 216, 218, 667 N.E.2d 18 (1996); State v. Tenney, 2d Dist.
Montgomery No. 24999, 2012-Ohio-3290, ¶ 6. Because an Intoxilyzer 8000 was used
in this case, Aicher’s breath sample was required to be tested in accordance with the
machine’s “instrument display,” not an “operational checklist.” The record, however,
does not indicate whether the instrument display included a 20 minute observation period.
Nevertheless, even if we were to assume that a 20 minute observation period was
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required, the evidence presented by the State indicates that it substantially complied with
such a requirement.
{¶ 35} “Substantial compliance only requires evidence that during the 20 minutes
before the breath test the defendant did not ingest anything that might skew the test
result.” Tenney at ¶ 7, citing State v. Adams, 73 Ohio App.3d 735, 740, 598 N.E.2d 176(2d Dist.1992), citing State v. Steele, 52 Ohio St.2d 187, 370 N.E.2d 740 (1977). “ ‘A
witness who testifies to that foundational fact is not required to show that the subject was
constantly in his gaze, but only that during the relevant period the subject was kept in
such a location or condition or under such circumstances that one may reasonably infer
that his ingestion of any material without the knowledge of the witness is unlikely or
improbable.’ ” Id., quoting Adams at 740. It is therefore immaterial whether a subject
was observed by several different officers. See Bolivar at 218 (“[W]hen two or more
officers, one of whom is a certified operator of the BAC Verifier, observe a defendant
continuously for twenty-minutes or more prior to the administration of a breath-alcohol
test, the twenty-minute observation requirement of the BAC Verifier operational checklist
has been satisfied.”).
{¶ 36} In this case, Officer Lambert testified that he arrested Aicher at 1:22 a.m.
and that at the time of the arrest Aicher had nothing in his mouth and had no ability to put
anything in his mouth because he was handcuffed. From there, Lambert testified that
Officer Spinks transported Aicher to jail. Lambert testified that he saw Aicher
approximately 20 minutes later in jail where Aicher was kept in a holding cell and
monitored by jailer Peter Morris. Lambert testified that Morris did not report that Aicher
ingested anything during his observation of him. Lambert further testified that between
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the time he first made contact with Aicher at jail and the time he took the breath test at
2:07 a.m., he did not observe Aicher ingest anything.
{¶ 37} From the foregoing testimony, it can be inferred that Aicher was kept in
conditions making it unlikely or improbable that he ingested anything 20 minutes prior to
the breath test. This court has stated that once the inference of unlikely or improbable
ingestion is shown, “[t]o overcome that inference, the accused must show that he or she
did, in fact, ingest some material during the twenty-minute period.” Adams at 740.
Here, Aicher never presented any evidence demonstrating that he did, in fact, ingest
something. Accordingly, Aicher’s first argument challenging the admission of his breath
sample lacks merit.
Radio Frequency Interference
{¶ 38} For his second argument, Aicher contends that the State failed to present
evidence showing that the Intoxilyzer 8000 used to administer his breath test was
checked for radio frequency interference (“RFI”) as required by Ohio Adm.Code 3701-53-
04(A)(1). Pursuant to that administrative code section:
(A) A senior operator shall perform an instrument check on approved
evidential breath testing instruments listed under paragraphs (A)(1), (A)(2),
and (B) of rule 3701-53-02 no less frequently than once every seven days
in accordance with the appropriate instrument checklist for the instrument
being used. The instrument check may be performed anytime up to one
hundred and ninety-two hours after the last instrument check.
(1) The instrument shall be checked to detect radio frequency interference
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(RFI) using a hand-held radio normally used by the law enforcement agency
performing the instrument check. The RFI detector check is valid when the
evidential breath testing instrument detects RFI or aborts a subject test. If
the RFI detector check is not valid, the instrument shall not be used until the
instrument is serviced.
(Emphasis added.)
{¶ 39} As noted above, section (A)(1) of Ohio Adm.Code 3701-53-04 applies to
“the testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-
02.” The Intoxilyzer 8000 at issue in this case, however, is listed under paragraph (A)(3).
As a result, the provision of the code requiring an RFI check does not apply to the
Intoxilyzer 8000 at issue. Accordingly, Aicher’s second argument challenging the
admission of his breath sample lacks merit.
Refrigeration of Ethyl Alcohol Solution
{¶ 40} For his third argument, Aicher contends that the State failed to present
evidence showing the that the ethyl alcohol solution used to certify the Intoxilyzer 8000 at
issue was refrigerated as required by Ohio Adm.Code 3701-53-04(E).
{¶ 41} Pursuant to Ohio Adm.Code 3701-53-04(C):
Representatives of the director shall perform an instrument certification on
approved evidential breath testing instruments listed under paragraph
(A)(3) of rule 3701-53-02 [i.e., the Intoxilyzer model 8000 (OH-5)] * * * using
a solution containing ethyl alcohol approved by the director of health
according to the instrument display for the instrument being certified. * * *
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(Emphasis added.)
{¶ 42} With regard to the ethyl alcohol solution, Ohio Adm.Code 3701-53-04(E)
provides that:
A bottle of approved solution containing ethyl alcohol shall not be used more
than three months after its date of first use, or after the manufacturer’s
expiration date on the approved solution certificate, whichever comes first.
After first use, a bottle of approved solution shall be kept under refrigeration
when not being used. The approved solution bottle shall be retained for
reference until that bottle of approved solution is discarded.
(Emphasis added.)
{¶ 43} In this case, Ohio Department of Health inspector Robert Norbeck testified
that on September 9, 2015, he performed the certification of the Intoxilyzer 8000 that was
used on Aicher. Norbeck also identified a copy of his signed certification statement,
which was admitted into evidence and read as follows:
On the date I performed the certification, I opened a new bottle of solution.
When I was done using the solution I disposed of the solution and the bottle,
thus there was no need to refrigerate the solution. The bottle and solution
was discarded the same day it was open and thus not retained for future
reference. This bottle was not used more than three months after its date
of first use, or after the manufacturer’s expiration date on the approved
solution certificate.
(Emphasis added.) State’s Exhibit D.
{¶ 44} Based on the foregoing statement, it is clear that Norbeck complied with
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Ohio Adm.Code 3701-53-04(E) when he certified the breath-test instrument at issue.
Based on Norbeck’s statement, refrigeration of the ethyl alcohol solution was not required
since he used a new bottle of solution during the certification process. Accordingly,
Aicher’s third argument challenging the admission of his breath sample lacks merit.
Dry Gas Standard
{¶ 45} For his final argument, Aicher contends that Norbeck’s testimony regarding
the certification of the Intoxilyzer 8000 at issue indicated that the dry gas control check
performed during the certification tested beyond the target value at variance greater than
0.005 in violation of Ohio Adm.Code 3701-53-04(B) and (C). We disagree.
{¶ 46} Pursuant to Ohio Adm.Code 3701-53-04(B):
Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the
Administrative Code [i.e., the Intoxilyzer model 8000 (OH-S),] shall
automatically perform a dry gas control using a dry gas standard traceable
to the national institute of standards and technology (NIST) before and after
every subject test. For purposes of an instrument listed under paragraph
(A)(3) of rule 3701-53-02 of the Administrative Code, a subject test shall
include the collection of two breath samples. * * * Dry gas control results are
valid when the results are at or within five one-thousandths (0.005) grams
per two hundred ten liters of the alcohol concentration on the manufacturer’s
certificate of analysis for that dry gas standard. A dry gas control result
which is outside the range specified in this paragraph will abort the subject
test or instrument certification process.
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(Emphasis added.)
{¶ 47} Pursuant to Ohio Adm.Code 3701-53-04(C):
* * * A dry gas control using a dry gas standard traceable to the national
institute of standards and technology (NIST) shall also be used when a
certification is performed. An instrument shall be certified no less
frequently than once every calendar year or when the dry gas standard on
the instrument is replaced, whichever comes first. * * * Instrument
certifications are valid when the certification results are at or within five one-
thousandths grams per two hundred ten liters of target value for that
approved solution. Instruments with certification results outside the range
specified in this paragraph will require the instrument be removed from
service until the instrument is serviced or repaired. * * *
(Emphasis added.)
{¶ 48} Here, Aicher claims that Norbeck testified that one of the dry gas control
checks conducted during the certification of the Intoxilyzer 8000 at issue tested at 0.011
grams when the target value was 0.100, and that said result is beyond the 0.005 variance
permitted by the Ohio Administrative Code. The record, however, does not support
Aicher’s claim. A review of the record indicates Norbeck actually testified that the two
dry gas control checks conducted during the certification process resulted in a reading of
0.101 grams, which is within the allowable .005 variance of the 0.100 target value. See
Suppression Hearing Trans. (Dec. 14, 2016), p. 14-15. Norbeck’s Certification Report,
which he identified at trial and was admitted as State’s Exhibit A, also indicates that the
two dry gas control checks both resulted in readings of 0.101 grams.
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{¶ 49} In arguing that the dry gas control tested at 0.011 grams, Aicher relies on
the following discussion between the trial court and Norbeck:
COURT: The, if I understand your testimony, you said that you had
variances from .99 to, I’m sorry, .099 to .011 on this, this
series you’ve ran, is that correct?
NORBECK: Yes, yes your Honor.
COURT: So you had a swing of three, three thousandths, and your
tolerance is five thousands, is that correct?
NORBECK: Yes sir.
(Emphasis added.) Id. at 16.
{¶ 50} Aicher points to the fact that Norbeck agreed with the trial court’s statement
that one of the readings was 0.011. However, while Norbeck may have agreed with the
trial court’s numbers at first, he later corrected the mistake when he testified: “I didn’t, I
didn’t testify that it was .011.” Id. at 33. Norbeck’s correction is in line with his prior
testimony and the documentary evidence admitted at the suppression hearing. See
State’s Exhibit A. Furthermore, it is clear that the trial court misspoke when it said 0.011,
as a 0.011 reading would not have amounted to “a swing of three thousandths,” but would
have amounted to a variance of 0.088. Therefore, because the record indicates that the
dry gas control check was 0.101 grams, thereby falling within the allowed 0.005 variance,
Aicher’s fourth argument challenging the admission of his breath sample lacks merit.
{¶ 51} Having concluded that all of Aicher’s arguments challenging the admission
of his breath sample are without merit, we find that the trial court did not err in overruling
Aicher’s motion to suppress. Accordingly, Aicher’s Second Assignment of Error is
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overruled.
Conclusion
{¶ 52} Having overruled both assignments of error raised by Aicher, the judgment
of the trial court is affirmed.
.............
HALL, J. and TUCKER, J., concur.
Copies mailed to:
Nolan C. Thomas
Brock A. Schoenlein
Hon. Forde J. Newberry – Acting Judge