[Cite as Cincinnati v. Vu,
2014-Ohio-3463.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130405
CITY OF CINCINNATI, TRIAL NO. 12TRC-16050B
:
Plaintiff-Appellant,
: O P I N I ON.
vs.
:
DUY T. VU,
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed from is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 13, 2014
Terrance Nestor, Interim City Solicitor, Charles Rubenstein, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellant,
Ernst & Associates, LLC, and Matthew T. Ernst, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} The city of Cincinnati appeals the judgment of the Hamilton County
Municipal Court granting Duy T. Vu’s motion to suppress the results of a breath test
taken on an Intoxilyzer 8000 machine. The trial court suppressed the results of Vu’s
breath test after finding that the state had failed to demonstrate that the machine
had been recertified within the time frame set forth in Ohio Adm.Code 3701-53-
04(C). Because we find that the trial court misinterpreted the rule, and that the
machine used to administer Vu’s test had been certified as required by the rule at the
time of the test, we reverse the trial court’s judgment.
Background Facts and Procedure
{¶2} On April 1, 2012, a Cincinnati police officer arrested Vu for operating a
motor vehicle while under the influence of alcohol (“OVI”) in violation of R.C.
4511.19(A)(1)(a). Vu submitted to a breath test on the Intoxilyzer model 8000 (OH-
5), serial number 80-004096, with a result of .159 grams by weight of alcohol per
210 liters of breath. Vu moved to suppress the test results, in part on the allegation
that a qualified representative of the Ohio director of health had not performed an
instrument certification on the breath-testing instrument at least “once every
calendar year,” in accordance with Ohio Adm.Code 3701-53-04(C).
{¶3} At the suppression hearing, Inspector Michael Quinn of the
Department of Health testified that he had successfully performed an instrument
certification on the machine on June 9, 2011, when it was placed into service.
Pursuant to his testimony, the court admitted into evidence the instrument
certification report and the related inspector’s certification statement. The state
rested its case on August 22, 2012, and the defense presented no evidence. The court
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OHIO FIRST DISTRICT COURT OF APPEALS
continued the case for a decision, which was issued almost ten months later, in June
2013. The parties did not object to the continuance, which allowed the parties to
submit written arguments on the motion, and allowed the trial court to render its
decision after this court had ruled on several issues arising on other cases concerning
the Intoxilyzer 8000 machines.
{¶4} Vu argued that the city had not demonstrated compliance with the
recertification requirement in Ohio Adm.Code 3701-53-04(C) because it had not
presented evidence of a certification in 2012, the year of his breath test. The city
argued that Vu had misinterpreted the requirement of the rule, which as applied in
this case mandated only a yearly certification. Therefore, the machine used for Vu’s
test, which had last been certified in 2011, had been certified as required by the rule
at the time of the test in April 2012, because the 2012 calendar year had not yet
expired.
{¶5} The city contended that Vu’s interpretation would lead to absurd
results because in many cases it would require the court to continue OVI cases in
progress to enable the city to show compliance later in the calendar year.
{¶6} The trial court adopted Vu’s argument and granted the motion to
suppress based on the city’s failure to comply with Ohio Adm.Code 3701-53-04(C).
The city now appeals, challenging the granting of the motion in a single assignment
of error.
Legal Analysis
{¶7} Because Vu moved to suppress the test results on the basis of
noncompliance with Ohio Adm.Code 3701-53-04(C), the city had the initial burden
at the suppression hearing to demonstrate, at a minimum, substantial compliance
with the rule to lay the foundation for the admissibility of the test results. State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Burnside, 100 Ohio St.3d 152, 157,
2003-Ohio-5372,
797 N.E.2d 71, ¶ 24. The results
of a test administered in substantial compliance with the regulations are admissible
absent a defendant’s demonstration of prejudice from less than strict compliance.
See
id.
{¶8} Appellate review of a motion to suppress involves a mixed question of
law and fact. Id. at ¶ 8. The dispositive issue in this case, however, involves a purely
legal question that we review de novo—the interpretation of a rule adopted by the
Ohio Department of Health, Ohio Adm.Code 3701-53-04(C). This rule provides in
relevant part as follows:
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 of the
Administrative Code using a solution containing ethyl alcohol[.]
… 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. A calendar year
means the period of twelve consecutive months, as indicated in
section 1.44 of the Revised Code, beginning on the first day of
January, and ending on the thirty-first day of December.
(Emphasis added.)
{¶9} Vu conceded at the suppression hearing that he was only challenging
the admissibility of the test results on the ground that the city had failed to comply
with the “once every calendar year” recertification requirement found in Ohio
Adm.Code 3701-53-04(C).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Yearly-Certification Requirement. The rule set forth in Ohio
Adm.Code 3701-53-04(C) adopts the definition of a calendar year as set forth in R.C.
1.44, and requires only a yearly certification, not a certification within 365 days of the
last certification. State v. Patel, 5th Dist. Stark No. 2012CA00190, 2013-Ohio-3300,
¶ 35. We read the rule to mean that a successful certification in a calendar year is
valid until December 31 of the following calendar year, absent specified
circumstances not relevant in this case.
{¶11} In construing this administrative rule that the Director of the Ohio
Department of Health promulgated under the authority of R.C. 3701.143, we apply
the established standards of statutory construction. See R.C. 1.41; McFee v. Nursing
Care Mgt. of Am., Inc., 126 Ohio St.3d 183,
2010-Ohio-2744,
931 N.E.2d 1069; State
v. Wemer,
112 Ohio App.3d 100, 103,
677 N.E.2d 1258 (4th Dist.1996). Accordingly,
we read the rule as a whole and we presume that the director, in promulgating the
rule, intended a reasonable result. R.C. 1.47(B) and (C). Further, we must read the
rules relating to the same subject matter in pari materia. State v. Castle, 10th Dist.
Franklin No. 12AP-369,
2012-Ohio-6028, ¶ 10-11.
{¶12} Vu’s construction of the rule leads to an unreasonable result, because it
could require trial courts to continue cases—sometimes until the conclusion of the
calendar year—for the city to demonstrate compliance. Moreover, when the yearly
certification provision of Ohio Adm.Code 3701-53-04(C) is read in the context of the
entire rule, and with the other rules in Ohio Adm.Code 3701-53-04 that involve the
same subject matter, we are confident that the director’s intent to assure the
reliability of the testing instruments is met by our interpretation. These provisions
require recertification at an earlier time, such as when the dry gas standard on the
machine is replaced, see Ohio Adm.Code 3701-53-04(C), and before the machine is
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OHIO FIRST DISTRICT COURT OF APPEALS
placed into service following repairs. See Ohio Adm.Code 3701-53-04(D). And Ohio
Adm.Code 3701-53-04(B) mandates an instrument check of the dry gas standard on
an Intoxilyzer 8000 machine “before and after each subject test.”
{¶13} In this case, the city demonstrated that the instrument met the
challenged yearly certification requirement at the time of Vu’s breath test in April
2012, because the Department of Health representative had successfully performed a
certification in 2011. Therefore, we determine that the city established not just
substantial compliance, but strict compliance with Ohio Adm.Code 3701-53-04(C).
Thus, the trial court erred in granting Vu’s motion to suppress. See Burnside, 100
Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71, at ¶ 24. Consequently, we sustain
the assignment of error on this basis.
Conclusion
{¶14} Because we sustain the assignment of error, we reverse the judgment
of the trial court granting Vu’s motion to suppress. The cause is remanded for
further proceedings consistent with this opinion and the law.
Judgment reversed and cause remanded.
HILDEBRANDT and DINKELACKER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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