.]
VILLAGE OF BOLIVAR, APPELLEE, v. DICK, APPELLANT.
[Cite as Bolivar v. Dick,
1996-Ohio-409
.]
Motor vehicles—Driving while intoxicated—Observation requirement of BAC
Verifier operational checklist satisfied, when.
When 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 observation requirement of the
BAC Verifier operational checklist has been satisfied.
(No. 95-372—Submitted at the New Philadelphia Session April 17, 1996—
Decided July 31, 1996.)
CERTIFIED by the Court of Appeals for Tuscarawas County, No. 94AP040025.
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{¶ 1} On January 10, 1993, Patrolman James Goodall of the Bolivar Police
Department arrested appellant, Jessica Dick, for driving under the influence of
alcohol. Goodall transported Dick to the Ohio State Highway Patrol post in New
Philadelphia, where a BAC Verifier test was administered by Trooper Andrew
Slezak, a certified operator of the BAC Verifier. Patrolman Goodall observed Dick
continuously for over one-half hour prior to arriving at the Highway Patrol station;
upon their arrival, Trooper Slezak observed Dick for “roughly sixteen minutes”
prior to administering the BAC Verifier test. Dick’s breath-alcohol level exceeded
the prohibited level and she was charged with violating village of Bolivar
Ordinance 434.01(A)(3).
{¶ 2} The trial court granted Dick’s motion to suppress the results of the
BAC Verifier test because the twenty-minute observation requirement of the
operational checklist in the BAC Verifier Report Form (see Appendix A) had not
been complied with by Trooper Slezak. The court of appeals reversed, finding that
SUPREME COURT OF OHIO
together Patrolman Goodall and Trooper Slezak had substantially complied with
the twenty-minute observation requirement
{¶ 3} The court of appeals entered an order certifying a conflict with other
jurisdictions on the following issue: “Whether, in a prosecution pursuant to R.C.
4511.19, the result of a breath-alcohol content test is admissible where the
Department of Health regulation that the subject be observed for twenty minutes
before administration of the test is satisfied in whole or in part by someone other
than the operator of the testing equipment.” The cause is now before this court
upon our determination that a conflict exists.
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Richard L. Fox, Bolivar Solicitor, for appellee.
William K. Hanner, for appellant.
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PFEIFER, J.
{¶ 4} There is no dispute about the facts in this case. Jessica Dick was
arrested for driving under the influence. She took a breath-alcohol test on the BAC
Verifier and the results were above the level prohibited by Bolivar Ordinance
434.01(A)(3) and by R.C. 4511.19.1 The only issue is whether, in a prosecution
pursuant to R.C. 4511.19 (or any similar municipal ordinance), the result of a
breath-alcohol test is admissible when the Department of Health regulation which
requires the subject to be observed for twenty minutes prior to administration of the
test is satisfied in whole or in part by someone other than the operator of the testing
instrument.
1. Bolivar Ordinance 434.01 (A)(3) is substantially similar to R.C. 4511.19(A). “Because the local
ordinance is patterned after R.C. 4511.19, our analysis refers to R.C. 4511.19 and the relevant case
law interpreting that statute.” Defiance v. Kretz (1991),
.
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January Term, 1996
{¶ 5} R.C. 4511.19 (D) states that any bodily substance collected for the
purpose of determining whether a person is in violation of the statute “shall be
analyzed in accordance with the methods approved by the director of health ….”
Regulations promulgated by the Director of Health in Ohio Adm.Code 3701-53-02
(B) state in pertinent part that “[b]reath samples shall be analyzed according to the
operational checklist for the instrument being used.” Thus, the operational
checklist, which is part of the BAC Verifier Test Report Form (see Appendix A),
provides the “methods approved by the director of health” for the operation of the
BAC Verifier.
{¶ 6} The first item on the operational checklist is “Observe subject for
twenty minutes prior to testing to prevent oral intake of any material.” It is clear
that the focus of this item is “to prevent oral intake of any material” and not to
ensure that a certified operator does the observing. See State v. Steele (1977),
, at paragraph
one of the syllabus, “the results of a urine-alcohol test administered in substantial
compliance with Ohio Adm.Code 3701-53-05 are admissible in a prosecution under
R.C. 4511.19.” With respect to the issue before us, we see little difference between
a urine-alcohol test and a breath-alcohol test and adopt the holding of Plummer to
the case at hand. Accordingly, we hold that when 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.
{¶ 7} The judgment of the court of appeals is affirmed, and the case is
remanded to the trial court for further proceedings consistent with this decision.
Judgment affirmed
and cause remanded.
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SUPREME COURT OF OHIO
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and STRATTON, JJ.,
concur.
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