2014 Ohio 4535
Ohio Ct. App.2014Background
- On April 7–8, 2013 Blaine E. Michael was charged with OVI (R.C. 4511.19) and related offenses after a traffic-stop/collision; a breath test on an Intoxilyzer 8000 administered by Deputy Bruce Clayton showed a prohibited alcohol concentration.
- Michael moved to suppress, but at the suppression hearing limited his challenge to exclusion of the breath test results on the ground that Deputy Clayton was not properly qualified under Ohio Adm.Code 3701-53-08(D) (proficiency exam “once per calendar year”).
- Evidence showed Deputy Clayton’s most-recent proficiency exam was February 16, 2012; the contested breath test occurred April 7, 2013.
- Trial court denied the suppression motion; Michael pleaded no contest to the prohibited concentration count (R.C. 4511.19(A)(1)(d)) and appealed solely on the 3701-53-08(D) issue.
- The appellate court reviewed de novo the legal question whether “once per calendar year” means a rolling 12 months or January 1–December 31 and affirmed the conviction, holding “calendar year” means January 1 through December 31.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "once per calendar year" in Ohio Adm.Code 3701-53-08(D) required proficiency testing within 12 months before the April 2013 test | State: not raised on appeal (trial-court argument alternative; appellate opinion declines to consider novel statutory-expiry arguments) | Michael: operator access card invalid because last proficiency was Feb 16, 2012—more than 12 months before Apr 7, 2013—so breath test should be suppressed | Court held “calendar year” means Jan 1–Dec 31; Deputy Clayton’s 2012 exam satisfied the requirement for 2013, so suppression denied |
Key Cases Cited
- State v. Burnside, 100 Ohio St.3d 152 (establishes mixed question of law/fact standard for suppression review)
- State v. Mills, 62 Ohio St.3d 357 (trial court’s factual findings at suppression are entitled to deference)
- State v. Peagler, 76 Ohio St.3d 496 (appellate courts ordinarily will not consider issues raised for first time on appeal)
- State ex rel. Gareau v. Stillman, 18 Ohio St.2d 63 ("calendar year" means January 1 through December 31)
- Muczyk v. Cleveland State Univ., 111 Ohio App.3d 167 (Eighth Dist. decision adopting a rolling 12‑month interpretation; discussed and distinguished)