2021 Ohio 1554
Ohio Ct. App.2021Background
- On Sept. 15, 2019, Daniel Farrell was stopped, arrested, and tested with an Intoxilyzer 8000; the printout showed a BAC of .152.
- Farrell moved to suppress the breath-test result, narrowing the challenge to whether the dry gas standard used was traceable to NIST as required by Ohio Adm.Code 3701-53-04.
- The city’s only witness, an ODH inspector (Nedveski), certified the Intoxilyzer and installed the DRYGAZ canister but expressly could not opine whether the dry gas was traceable to NIST.
- The DRYGAZ certificate of analysis stated the standard was "N.M.I. TRACEABLE STANDARDS" and referenced the Mutual Recognition Arrangement (MRA) with NIST, but did not specifically identify NIST traceability.
- The trial court denied suppression; Farrell pleaded no contest to an amended OVI charge and was sentenced. The court of appeals reversed, vacating the conviction and ordering costs taxed to the city.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State proved substantial compliance with Ohio Adm.Code 3701-53-04 by using a dry gas standard traceable to NIST | Farrell: Certificate shows traceability only to an unnamed NMI; traceability to an NMI under the MRA is not automatically traceability to NIST, and the State presented no evidence linking the NMI standard to NIST | City: ODH approved the DRYGAZ; courts must defer to ODH’s choice of approved dry gas and the evidence (certificate + inspector testimony) shows compliance | Reversed: State failed to prove the dry gas was traceable to NIST or that traceability to an NMI was shown to be equivalent to NIST; absence of such proof meant no substantial compliance and suppression was required |
Key Cases Cited
- State v. Burnside, 797 N.E.2d 71 (Ohio 2003) (establishes substantial-compliance standard for ODH alcohol-testing regulations and limits excusable deviations to de minimis errors)
- State v. Homan, 732 N.E.2d 952 (Ohio 2000) (substantial-compliance must not excuse more than minor procedural deviations)
- State v. Steele, 370 N.E.2d 740 (Ohio 1977) (historical authority limiting judicial forgiveness of regulatory noncompliance in alcohol testing)
- State v. Codeluppi, 10 N.E.3d 691 (Ohio 2014) (appellate standard: accept trial court fact findings supported by evidence but review de novo whether facts satisfy legal standard)
- State v. Yoder, 613 N.E.2d 626 (Ohio 1993) (courts should not add to or ignore requirements of validly adopted administrative regulations)