State v. Sisson

[Cite as State v. Sisson, 2013-Ohio-1869.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
RACHEL SISSON : Case No. 2012CA00169
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal
Court, Case No. 2012 TRC 03065
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 6, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH MARTUCCIO MICHAEL A. BOSKE
Canton Law Director 122 Central Plaza North
Canton, OH 44702
TYRONE D. HAURITZ
Canton City Prosecutor
KATIE ERCHICK
218 Cleveland Avenue, SW
P.O. Box 24218
Canton, OH 44701
Stark County, Case No. 2012CA00169 2
Farmer, J.
{¶1} On May 19, 2012, Ohio State Highway Patrol Sergeant Todd Belcher
stopped appellant, Rachel Sisson, and subsequently charged her with operating a
motor vehicle while impaired in violation of R.C. 4511.19 and failure to drive within
marked lanes in violation of R.C. 4511.33. Appellant was taken to the State Highway
Patrol Post whereupon Sergeant Belcher performed a breathalyzer test on appellant
utilizing a BAC DataMaster instrument. Sergeant Belcher holds a permit to operate the
BAC DataMaster as well as an access card to operate the Intoxilyzer 8000 instrument.
{¶2} On June 28, 2012, appellant filed a motion to suppress the results of the
breath test, claiming Sergeant Belcher was not permitted to conduct the test using the
BAC DataMaster instrument. A hearing was held on July 31, 2012. By judgment entry
filed August 22, 2012, the trial court denied the motion.
{¶3} On August 29, 2012, appellant pled no contest to the charges. By
judgment entry filed same date, the trial court found appellant guilty and sentenced her
to one hundred eighty days in jail, all but seventy-two hours suspended on condition of
good behavior.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED IN NOT SUPPRESSING THE RESULTS
OF THE APPELLANT'S BREATH TEST."
Stark County, Case No. 2012CA00169 3
I
{¶6} Appellant claims the trial court erred in denying her motion to suppress.
We disagree.
{¶7} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 485 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this type of claim, an appellate court must independently determine, without deference
to the trial court's conclusion, whether the facts meet the appropriate legal standard in
any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations
of reasonable suspicion and probable cause should be reviewed de novo on appeal."
{¶8} Appellant argues the results of her breath test should be suppressed
because Sergeant Belcher, who had an access card for the Intoxilyzer 8000 instrument,
Stark County, Case No. 2012CA00169 4
is prohibited from operating a BAC DataMaster instrument regardless of his certification
on the machine. In support, appellant cites the following language from Ohio Adm.Code
3701-53-09(D):
Individuals desiring to function as operators using instruments listed
under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code
shall apply to the director of health for operator access cards on forms
prescribed and provided by the director of health. The director of health
shall issue operator access cards to perform tests to determine the
amount of alcohol in a person's breath to individuals who qualify under the
applicable provisions of rule 3701-53-07 of the Administrative Code.
Individuals holding operator access cards issued under this rule shall use
only those evidential breath testing instruments for which they have been
issued an operator access card.
{¶9} It is undisputed that Sergeant Belcher held an access card for the
Intoxilyzer 8000, as well as a valid permit to operate the BAC DataMaster instrument.
T. at 8-10.
{¶10} We have previously addressed this issue in State v. Nethers, 5th Dist. No.
12-CA-30, 2012-Ohio-5198, ¶ 13-14:
Appellant further asserts the Ohio Administrative Code Section
3701-53-09(D) prohibited Officer Martin, who administered the test and
Stark County, Case No. 2012CA00169 5
has an operator access card for the Intoxilyzer 8000, from using the BAC
DataMaster test. Appellant maintains pursuant to the code, the officer
could only perform those tests for which he holds an individual permit.
Only one breath testing instrument requires an operator access card, the
Intoxilyzer 8000. Officer Martin had a Senior Operator's Permit to
administer chemical breath tests using the BAC DataMaster, and had also
been issued an operator access card for the Intoxilyzer 8000.
In State v. Hudepohl, 2011–Ohio–6917, the court considered the
issue raised herein, determining the argument led to absurd results, we
agree. Therein, a police officer held both a senior operator permit for one
type of blood-alcohol breath testing instrument and an operator access
card for a second type of breath testing instrument. The court held merely
holding an operator access card for a second type of instrument did not
prohibit the officer from operating the first type of instrument pursuant to
his senior operator permit.
{¶11} We find our opinion in Nethers to be applicable and controlling sub judice.
{¶12} The sole assignment of error is denied.
Stark County, Case No. 2012CA00169 6
{¶14} The judgment of the Canton Municipal Court of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
s / Sheila G. Farmer______________
_s/ William B. Hoffman_____________
_s / John W. Wise_________________
JUDGES
SGF/sg 425
[Cite as State v. Sisson, 2013-Ohio-1869.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RACHEL SISSON :
:
Defendant-Appellant : CASE NO. 2012CA00169
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Canton Municipal Court of Stark County, Ohio is affirmed. Costs to
appellant.
s / Sheila G. Farmer______________
_s/ William B. Hoffman_____________
_s / John W. Wise_________________
JUDGES