[Cite as State v. Lambert,
2013-Ohio-3589.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120865
TRIAL NO. 11TRC-57873-A
Plaintiff-Appellant, :
vs. : O P I N I O N.
ROGER D. LAMBERT, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 21, 2013
John P. Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and Marva K.
Benjamin, Senior Assistant Prosecutor, for Plaintiff-Appellant,
Suhre & Associates, LLC, and Robert Healey, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Plaintiff-appellant the city of Cincinnati appeals the trial court’s
judgment granting defendant-appellee Roger Lambert’s motion to suppress the
results of a breath-alcohol test pursuant to Lambert’s arrest for operating a vehicle
while under the influence of alcohol or drugs (“OVI”) in violation of R.C. 4511.19(A).
Because we determine that the trial court erred in suppressing the results, we
reverse.
Factual Background and Procedural Posture
{¶2} In November 2011, Lambert was stopped by an Ohio State Highway
patrol officer after the officer observed Lambert’s vehicle swerve left of center. As a
result of the traffic stop, Lambert was placed under arrest for OVI. The officer then
took Lambert to Cincinnati Police District One where Lambert submitted to a breath-
alcohol test using an Intoxilyzer 8000 instrument. Lambert was charged, in part,
with operating a motor vehicle while under the influence of alcohol in violation of
R.C. 4511.19(A)(1)(a), and operating a motor vehicle with a prohibited concentration
of alcohol in his breath in violation of R.C. 4511.19(A)(1)(d).
{¶3} Lambert filed a motion to suppress all evidence stemming from his
arrest, including the results of his breath-alcohol test. Pertinent to this appeal,
Lambert argued in his motion to suppress that his test results were inadmissible
because: (1) the dry gas control test for the Intoxilyzer 8000 instrument on which he
was tested was not performed prior to and subsequent to every subject test, and (2)
an instrument certification was not made when the instrument was placed in service.
The trial court conducted a lengthy hearing on the motion, and, in addition to the
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OHIO FIRST DISTRICT COURT OF APPEALS
arresting officer’s testimony, Michael Quinn, an employee of the Ohio Department of
Health (“ODH”), and Mary Martin, a program administrator for ODH, also testified.
{¶4} Quinn testified that he had conducted a certification of the instrument
used on Lambert on June 21, 2011, in Columbus, and that he had installed and had
placed the instrument in service on June 23, 2011, after the instrument had passed
an additional diagnostic test at District One. Martin testified in regards to the
instrument testing procedure. She testified that the instrument begins with an air
blank, then does a diagnostic, another air blank, the first dry gas control, another air
blank, the first subject sample, two more air blanks, the second subject sample,
another air blank, the second dry gas control, and finally an air blank. She also
testified that the ODH recently changed its terminology to “subject sample” instead
of “subject test.”
{¶5} The trial court concluded that the officer had had probable cause to
arrest Lambert for OVI, but the trial court suppressed the results of the breath-
alcohol test for failure to comply with ODH regulations. In suppressing the results,
the trial court determined that the dry gas control test for the Intoxilyzer 8000
instrument had not been performed prior to and subsequent to each subject test as
required by Ohio Admin.Code 3701-53-04. The trial court also determined that the
instrument certification had not been done in accordance with Ohio Admin.Code
3701-53-04 because Quinn had “calibrated” the instrument in Columbus, and
because “no calibration process” had occurred at the time the instrument had been
installed at District One.
{¶6} The city now appeals, arguing that the trial court erred by suppressing
Lambert’s breath-alcohol test results.
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OHIO FIRST DISTRICT COURT OF APPEALS
Standard of Review
{¶7} Appellate review of a trial court’s ruling on a motion to suppress
presents a mixed question of law and fact. We must accept the trial court’s findings
of fact if they are supported by competent and credible evidence. But we review de
novo the trial court’s application of the relevant law to those facts. State v. Burnside,
100 Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71, ¶ 8.
{¶8} When a defendant challenges the admission of a breath-alcohol test by
filing a motion to suppress, courts apply a burden-shifting analysis. The state must
show substantial compliance with ODH regulations, and if the state meets that
burden, a rebuttable presumption arises that the test results are admissible.
Burnside at ¶ 24; State v. Booth, 1st Dist. Hamilton No. C-070184, 2008-Ohio-1274,
¶ 7. Then, the burden shifts back to the defendant to show that he or she “was
prejudiced by anything less than strict compliance.” Burnside at ¶ 24.
Certification of the Intoxilyzer 8000
{¶9} In its first assignment of error, the city argues that the trial court erred
when it suppressed the results of Lambert’s breath test on the ground that the
certification of the Intoxilyzer 8000 instrument must be done at the time and
specific location where the instrument is installed and placed in service in
accordance with Ohio Admin.Code 3701-53-04.
{¶10} Ohio Admin.Code 3701-53-04(D) provides that “[a]n instrument check
or certification shall be made … when a new evidential breath testing instrument is
placed in service or when the instrument is returned after service or repairs, before
the instrument is used to test subjects.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} In State v. Logeman, 1st Dist. Hamilton No. C-070109, 2007-Ohio-
6340, this court interpreted nearly identical language in former Ohio Admin.Code
3701-53-04(B), which stated “[a]n instrument check shall be made … when a new
evidential breath testing instrument is placed in service …, before the instrument
is used to test subjects.” This court determined in Logeman that “[t]he language of
Ohio Admin.Code 3701-53-04(B) itself indicates that compliance may be
demonstrated upon a showing that the machine had been checked ‘before the
instrument is used to test subjects.’ It is therefore apparent that the requirement
regarding initial testing … is to ensure calibration before the machine is used for
evidentiary purposes.” Id. at ¶ 22.
{¶12} In this case, the plain language of Ohio Admin.Code 3701-53-04(D)
does not indicate that the certification must be performed at the location and time of
the installation, as the trial court held. Moreover, similar to the code section at issue
in Logeman where compliance could be demonstrated by showing that the
instrument was checked before testing, Ohio Admin.Code 3701-53-04(D) requires
instrument certification to be performed on new, serviced, or repaired instruments
before the instruments are used for testing.
{¶13} The instrument used to test Lambert was certified in June 2011, prior
to its use on Lambert in November 2011. Although Quinn conducted a certification
of the instrument in Columbus, when he installed and placed the instrument in
service two days later at District One, the instrument passed an additional diagnostic
test to ensure that it was working properly. No evidence was presented to indicate
that the machine was serviced or repaired prior to November 2011. Therefore, we
determine that the city has established, at a minimum, substantial compliance with
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio Admin.Code 3701-53-04(D), and Lambert does not argue that he was
prejudiced by anything less than strict compliance. See Burnside, 100 Ohio St.3d
152,
2003-Ohio-5372,
797 N.E.2d 71, at ¶ 8. Therefore, the trial court erred in
granting Lambert’s motion to suppress on this basis.
{¶14} Consequently, we sustain the city’s first assignment of error.
Dry Gas Control Test
{¶15} The city argues that the trial court erred when it suppressed Lambert’s
test results based upon the failure to conduct a dry gas control test prior to and after
each breath sample.
{¶16} Ohio Admin.Code 3701-53-04(B) provides that the Intoxilyzer 8000
instrument must “automatically perform a dry gas control test before and after every
subject test ….” This court recently held in Cincinnati v. Nicholson, 1st Dist.
Hamilton No. C-120332, 2013-Ohio-708, ¶ 11, that “the plain language of Ohio
Admin.Code 3701-53-04(B) requires a dry gas control test before a subject’s first
breath sample and after the subject’s second breath sample, but not in between the
two samples.” In reaching this conclusion, this court agreed with the reasoning of
the Twelfth Appellate District that “there is a single ‘subject test’ that is comprised of
two different breath samples.” Nicholson at ¶ 10, relying on State v. Kormos, 2012-
Ohio-3128,
974 N.E.2d 725, ¶ 16 (12th Dist.).
{¶17} Lambert nevertheless argues that Nicholson is distinguishable because
the court in that case did not have the benefit of the Intoxilyzer 8000 manual
published by the ODH, which uses labels such as “subject test one,” “subject test
two,” and “second subject test.” Assuming that the Nicholson court did not have the
Intoxilyzer 8000 manual as part of its record, which is not clear from the decision
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OHIO FIRST DISTRICT COURT OF APPEALS
itself, the Nicholson court nevertheless considered ODH’s use of the labels “Subject
Test 1” and “Subject Test 2” as they were used in the “Subject Test Report.”
Moreover, Martin testified that ODH now uses the label “sample” instead of “test” on
its test reports, consistent with our decision in Nicholson. Thus, we cannot
distinguish Nicholson on this basis.
{¶18} Lambert further argues that Nicholson is distinguishable because the
plain language of Ohio Admin.Code 3701-53-04(B) provides that the dry gas control
test must be performed before the “subject test,” and Martin testified that the
Intoxilyzer 8000 procedure begins with an air blank and a diagnostic, and not a dry
gas control test. Lambert relies on the definition of “subject test” in Nicholson where
the court determined that a “subject test” means running the Intoxilyzer 8000
instrument on a single subject. Nicholson at ¶ 10. Thus, Lambert argues that the
evidence showed that the dry gas control test was not the first step in his entire
testing procedure, or “subject test,” as required by Ohio Admin.Code 3701-53-04(B).
{¶19} Lambert’s argument ignores that the same testing procedure was used
for the instrument in Nicholson as was used in this case. Moreover, in Nicholson,
this court determined that a “subject test” is “comprised of two different breath
samples.” Id. Lambert does not dispute that the dry gas control test was performed
before and after his two different breath samples. Thus, we cannot distinguish
Nicholson on this basis either. We determine that the city substantially complied
with Ohio Admin.Code 3701-53-04(B), and that Lambert fails to argue or show that
he was prejudiced by anything less than strict compliance. See Burnside,
100 Ohio
St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71, at ¶ 8. Thus, the trial court erred in
granting Lambert’s motion to suppress on this basis as well.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} We sustain the city’s second assignment of error.
Conclusion
{¶21} Because we sustain both of the city’s assignments of error, we reverse
the judgment of the trial court granting Lambert’s motion to suppress. The cause is
remanded for further proceedings consistent with this opinion and the law.
Judgment reversed and cause remanded.
HILDEBRANDT, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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