State v. Yoder

             OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellee, v. Yoder, Appellant.
The State of Ohio, Appellee, v. Grigsby, Appellant.
The State of Ohio, Appellee, v. Davidson, Appellant.
[Cite as State v. Yoder (1993),     Ohio St.3d    .]
Motor vehicles -- Driving while intoxicated -- Ohio Adm.Code
     3701-53-02(C)(2) does not require a new radio frequency
     interference survey when the breath testing device is
     moved for maintenance and repair of minor parts and is
     returned to its original testing location and replacement
     components meet specifications enumerated in Ohio Adm.Code
     3701-53-02(C)(2)(e).
Ohio Adm.Code 3701-53-02(C)(2) does not require a new RFI
     survey when the breath testing device is moved for
     maintenance and repair of minor parts and then is returned
     to its original testing location and the replacement
     components meet the specifications enumerated within Ohio
     Adm. Code 3701-53-02(C)(2)(e). (Ohio Adm.Code 3701-53-02
     [C][2][a] and [e], construed.)
     (Nos. 92-953, 92-954 and 92-981 -- Submitted February 17,
1993 -- Decided June 23, 1993.)
     Certified by the Court of Appeals for Union County, Nos.
14-91-31, 14-91-33 and 14-91-36.
     This appeal involves three consolidated cases from Union
County. In case Nos. 92-953 and 92-954, consolidated below,
appellants Jacob J. Yoder and Thomas G. Grigsby were convicted
for driving under the influence of alcohol. Intoxilyzer breath
tests showed that each defendant was operating a motor vehicle
while having a prohibited amount of alcohol in his breath--
Yoder's being .159 grams of alcohol per 210 liters of breath
and Grigsby's being in excess of .10 grams of alcohol per 210
liters of breath. Similarly, in case No. 92-981, it is
undisputed that appellant Keith W. Davidson was convicted for
driving under the influence of alcohol when his intoxilyzer
test produced a blood-alcohol content result of in excess of
.10 grams of alcohol per 210 liters of breath. The same
intoxilyzer, housed at the Union County Sheriff's Office in
Marysville, Ohio, was used for the breath tests administered to
Davidson in March 1991, Yoder on April 28, 1991, and Grigsby on
or about May 4, 1991.
     The stipulated facts reveal the following. Properly
conducted radio frequency interference ("RFI") surveys were
performed on this device on December 29, 1986, February 22,
1989, June 28, 1989, and May 6, 1991. Prior to the appellants'
arrests and subsequent to the June 1989 RFI survey, the
intoxilyzer was out of service on two occasions--January 16,
1991, and February 27, 1991--and sent to Mansfield, Ohio, for
maintenance and repairs. After the work was completed, the
machine was returned to and placed in its original testing site.
     Appellants filed motions to suppress the blood-alcohol
content test results alleging, inter alia, that the state could
not show that an RFI survey was performed as required by Ohio
Adm.Code 3701-53-02(C). Following a hearing by the trial court
and upon the stipulations of the parties, the motions were
overruled.
     Thereafter, appellants entered no contest pleas. Upon
appeal, in two separate opinions, the Third District Court of
Appeals affirmed the convictions, 

 and 

, but finding its decisions to be in conflict with the
decision in State v. Young (Apr. 11, 1991), Delaware App. No.
90-CA-40, unreported, 

, certified the records of
the cases to this court for review and final determination.

     R. Larry Schneider, Union County Prosecuting Attorney, and
David W. Phillips III, Assistant Prosecuting Attorney, for
appellee in case Nos. 92-953 and 92-981.
     John W. Dailey, Jr., for appellants Yoder and Grigsby in
case Nos. 92-953 and 92-954.
     Cannizzaro, Fraser & Bridges and Don W. Fraser, for
appellant Davidson in case No. 92-981.

     Francis E. Sweeney, Sr., J.   The question presented by
these appeals is whether a new radio frequency interference
survey must be conducted when the intoxilyzer is removed from
its testing location for service and repair, and then returned
to the same site and used for testing. For the following
reasons, we answer this question in the negative.
     Under R.C. 4511.19(D), the General Assembly has provided
that bodily substances taken to prove a violation of the
driving-while-under-the influence statute "shall be analyzed in
accordance with methods approved by the director of health
…."
     In addition, former R.C. 3701.1431 provides that "the
director of health shall determine, or cause to be determined,
techniques or methods for chemically analyzing a person's
… breath, … in order to ascertain the amount of alcohol
in a person's blood." Pursuant to such statutory grant of
authority, the Director of Health has approved the intoxilyzer
as an instrument for testing a person's breath to measure the
defendant's blood-alcohol concentration. Ohio Adm.Code
3701-53-02(A).
     To achieve accurate results for breath testing devices
such as the intoxilyzer, the Director of Health prescribed Ohio
Adm.Code 3701-53-02(C) as amended effective May 5, 1990, which
provides:
     "… RFI surveys conducted before the effective date of
this amendment in accordance with the rule as it existed when
the surveys were conducted shall remain valid until an event
that would require a new RFI survey under paragraphs (C)(2) of
this rule occurs." Subsection (C)(2) states that a new survey
is not required unless one of the following changes occurs:
     "a. The location of the breath testing instrument, when
used for testing, is moved more than one foot in any direction;
     "b. The instrument's axis is changed;
     "c. The frequency band of the radio transmitting equipment
… is changed;
     "d. The radio transmitting equipment's rated output power
is changed;
     "e. Any electronic component of the instrument is changed,
other than replacement of parts with original equipment
replacement parts or factory-authorized replacement parts
meeting the same specifications as the original equipment
parts; or
     "f. A new breath testing instrument is placed into
service."
     In dispute in the instant cases are subsections (C)(2)(a)
and (e). Initially, we note the parties stipulated that the
prior surveys were conducted in accordance with the Ohio
Administrative Code. Thus, a valid survey had been performed,
which remained valid until an event occurred which would
require a new survey. As previously noted, the parties
stipulated that the machine was removed for maintenance and
repair and then returned to its original testing site. The
question therefore becomes whether movement of the machine and
the replacement of some parts is an event which would require a
new test.
     We interpret Ohio Adm.Code 3701-53-02 (C)(2)(a) to require
a new survey when there is movement of the location of the
breath testing instrument when used for testing, and not just
when there is movement of the machine. This conclusion
comports with the purpose of the RFI survey which is "to
determine whether the environment in which the instrument
operates contains electromagnetic or radio interference that
may affect operation of the breath-testing instrument."
(Emphasis sic.) State v. Adams (1992), 

, 

.
     In addition, Ohio Adm.Code 3701-53-02(C)(2)(e) requires a
new survey when an electronic component, other than original
replacement parts or factory authorized parts meeting the same
specifications as the original equipment parts, is replaced.
Here, the record shows that the servicing and repairs provided
on January 16 and February 27, 1991 were: replacement of a
breath lamp and a pressure switch, cleaning of printer rollers
and printer connectors, and checking of all voltages. The
parties stipulated that the replacement components were either
original equipment or factory-authorized parts meeting the same
specifications as the original parts.
     We conclude Ohio Adm.Code 3701-53-02(C)(2)(e) only
requires a new RFI survey when any electronic component of the
instrument is changed or when the part replaced is not an
original or factory-authorized part. Replacement of a breath
lamp and a pressure switch do not qualify as electronic
component replacements. As noted, the parties stipulated the
replacement parts were either original equipment or factory-authorized parts.
     Movement of the machine for maintenance and the
replacement of minor parts must have been contemplated by the
Director of Health. We cannot undercut the department's
rulemaking authority by requiring a new RFI test when the
regulation does not require one. The Director of Health, not
the court, was delegated the discretionary authority for
adoption of breath testing devices and the procedures for their
use. State v. Vega (1984), 

, 12 OBR 251,
255, 

.
     We are well aware that a person charged with a violation
under R.C. 4511.19 faces serious consequences solely dependent
upon the results of a chemical test conducted by an instrument
installed, controlled, maintained, regulated, checked and
guarded by the state's law enforcement agencies. However, in
promulgating this regulation, it must be presumed that the
Director of Health acted upon adequate investigation and in
full awareness of the perceived problems with RFI. We must
defer to the department's authority and we may not substitute
our judgment for that of the Director of Health.
     For the above-stated reasons, we hold that Ohio Adm.Code
3701-53-02(C)(2) does not require a new RFI survey when the
breath testing device is moved for maintenance and repair of
minor parts and then is returned to its original testing
location and the replacement components meet the specifications
enumerated within Ohio Adm. Code 3701-53-02(C)(2)(e)
     Accordingly, the judgments of the courts of appeals are
affirmed.
                                       Judgments affirmed.
     Moyer, C.J., A.W. Sweeney, Douglas, Resnick and Pfeifer,
JJ., concur.
     Wright, J., dissents.

Footnote:
1. R.C. 3701.143 has been amended effective April 16, 1993.
The revised statute specifically refers to R.C. 4511.19 as the
basis for the Director of Health's rulemaking authority.
     Wright, J., dissenting.    I must respectfully dissent. I
agree with the majority that "a person charged with a violation
under R.C. 4511.19 faces serious consequences solely dependent
upon the results of a chemical test conducted by an instrument
installed, controlled, maintained, regulated, checked and
guarded by the state's law enforcement agencies." I also agree
that the Director of Health is delegated the authority to adopt
regulations for the use of these instruments. Once
promulgated, these regulations are to be given the force and
effect of law. Doyle v. Ohio Bur. of Motor Vehicles (1990), 

, 

, paragraph one of the syllabus. I
disagree, however, with the majority's interpretation of Ohio
Adm.Code 3701-53-02(C)(2)(a) concerning whether the Director of
Health intends that an RFI survey be conducted after an
instrument is moved from its testing location for maintenance
and returned to that location. Instead, I agree completely
with the thoughtful dissent written by Presiding Judge Hadley
in the court of appeals below.
     It has been well established that breath testing
instruments such as the Intoxilyzer CM4011 used in this case
can be affected by electrical interference from nearby radio
transmissions. See Taylor, Drunk Driving Defense (3 Ed. 1991),
Section 6.0.5. This susceptibility to radio frequency
interference can result in inaccurate test results. 

 To
deal with this problem, the Director of Health promulgated
rules limiting the use of radio transmitting antennae during
tests and requiring periodic RFI surveys.
     In its analysis of Ohio Adm. Code 3701-53-02(C)(2)(a), the
majority focuses on the words "location" and "used for testing"
to conclude that a new RFI survey is required only when the
instrument is relocated more than one foot and testing occurs
in that new location. However, as Judge Hadley points out, the
words "when used for testing" can be read to refer to the
instrument itself, as opposed to the reason for the
relocation. He cites to language in Ohio Adm.Code
3701-53-02(A) that states that "… [i]n addition to any other
purposes for which they may be used, evidential breath testing
instruments are approved in determining whether an individual's
breath contains a concentration of alcohol …." Given that
the regulations contemplate that these instruments may be used
for purposes other than testing, this places the emphasis in
subsection (C)(2)(a) on the movement of the machine more than
one foot rather than the reason it is moved. Therefore, the
important facts are that the instrument is used for testing and
that it is moved more than one foot. The regulation does not
state that the instrument can be moved and then returned to
within one foot of its original location without a new RFI
survey.
     I believe the majority also overemphasizes that the
purpose of the RFI survey is to test the environment for
electromagnetic or radio interference. It is clear from the
regulations that the Director of Health has determined that a
new RFI survey must be conducted when certain changes occur in
the environment or certain changes occur to the instrument
itself that may cause radio and electromagnetic interference to
affect the test results. For example, subsection (C)(2)(b)
requires a new RFI survey if the axis of the instrument is
changed, subsection (C)(2)(e) requires a new RFI survey if
electronic components are changed other than with original
replacement parts or factory-authorized parts, and subsection
(C)(2)(f) requires a new RFI survey if a new machine is used.
In each of these situations the environment itself has not
changed. Instead, the concern is that the environment will
affect the accuracy of the machine's results because of a
change in the machine.
     This case was certified to us by the Third Appellate
District because its decision was in conflict with a decision
by the Fifth Appellate District in State v. Young (Apr. 11,
1991), Delaware App. No. 90-CA-40, unreported. The Fifth
Appellate District opinion was unanimous that a new RFI survey
is required after a machine is removed for repair and returned
to the testing location. The Third Appellate District decision
that no RFI survey was required was not unanimous and our
decision is not unanimous. This disparity in interpretation
indicates that this regulation is at best ambiguous. Given
this ambiguity and given the serious consequences dependent on
the results of these tests, it is essential that we resolve the
ambiguity against the state, as we are required to do under
R.C. 2901.04.
     We must keep in mind that R.C. 4511.19(A)(3) is a per se
offense. A defendant is found guilty if the trier of fact
finds that the defendant was operating a motor vehicle and his
or her intoxilyzer reading was at the proscribed level.
Therefore, guilt or innocence rests on the accuracy of the test
results. Newark v. Lucas (1988), 

, 

; Defiance v. Kretz (1991), 

, 

. Requiring a new RFI survey after a machine has been
removed for repairs and returned to the test site assures
certainty as to its results without placing an onerous,
expensive or time-consuming burden on the testing agency. On
the other hand, eliminating the requirement of a new RFI survey
could compromise the accuracy of the test results. If we are
to err in interpreting the regulation we should err in a way
which leads to more, not less, accurate results.2

FOOTNOTE:
     2 In fairness, I acknowledge the Fourth Appellate
District's decision in State v. Mulhern (1991), 

, 

, in which that court interpreted the
predecessor to Ohio Adm.Code 3701-53-02(C), which stated: "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." In Mulhern, the state
offered as an exhibit a letter from the Department of Health
indicating the department's position that a new RFI survey was
not required if the machine was removed for repair and returned
"to the same location facing the same way." The court of
appeals deferred to the department's interpretation of its
regulation. While I recognize that due deference should be
given to an agency's interpretation of its own regulations, I
also note that there is nothing in the record before us to
indicate the department's interpretation of the current
regulation. Given the ambiguity of the language of the
regulation, the potential for the machine to be returned from
repair but not placed precisely in the exact locaton from which
it was previously RFI-surveyed, and the consequences to
defendants charged with per se offenses who can be convicted
based solely on the results of these chemical tests, I still
believe that a new RFI survey should be conducted after a
machine is removed for servicing and returned to the testing
site. This best assures the accuracy of the test results.