Dublin v. YoungDublin v. Young
Under
{¶ 1} On July 28, 1993, appellee, Eddie Loo Young, was charged, inter alia, with operating a motor vehicle with a proscribed level of alcohol in his breath in violation of Section 333.01(a)(3) of the Dublin Codified Ordinances.1 Young, on that same day, had been given a “BAC Datamaster” breath test, which resulted in a reading of .141. He entered a plea of not guilty and demanded a jury trial.
{¶ 2} On December 24, 1993, Young filed a motion to suppress the results of his breath test. In support of the motion, Young claimed, among other things, that the BAC Datamaster test result should be suppressed because the test had not
{¶ 3} On April 12, 1994, the trial court conducted a hearing. At the hearing, Officer Kevin E. Rickenbacher and Sergeant Ray Scharf of the Dublin Police Department testified on behalf of appellant, city of Dublin.
{¶ 4} Rickenbacher testified that in October 1992, he was issued an operator‘s permit by the Department of Health for administering BAC Datamaster tests and that he conducted the breath test on Young. Rickenbacher further testified that Sergeant Scharf had his senior operator‘s permit and that Scharf currently performed calibration checks on the instrument. Rickenbacher indicated that Scharf was not present when the breath test was administered to Young and that the most recent contact he (Rickenbacher) had had with Scharf regarding the BAC Datamaster was when Scharf informed him about the date of the 1993 proficiency examination. Rickenbacher also indicated that Scharf could be reached by telephone if a question ever arose regarding the instrument, but that he had never needed to call Scharf with any questions.
{¶ 5} Scharf testified that he held a valid senior operator‘s permit for the operation of the BAC Datamaster. The majority of Scharf‘s testimony focused on how he conducted radio frequency interference (“RFI“) surveys on the instrument. Scharf stated that he had tested the device on May 21, 1993. Scharf did not testify whether he had ever checked Rickenbacher‘s performance with respect to the actual operation of the BAC Datamaster.
{¶ 7} Upon appeal, the Court of Appeals for Franklin County reversed the judgment of the trial court. The court of appeals, relying on Aurora v. Kepley (1979), 60 Ohio St.2d 73, 14 O.O.3d 273, 397 N.E.2d 400, held that the trial court erred in failing to suppress the breath test result because there was no evidence indicating that Scharf ever checked Rickenbacher‘s performance with respect to the use of the breath testing instrument.
{¶ 8} This cause is now before this court upon the allowance of a discretionary appeal.
Ronald J. O‘Brien, City Attorney, David M. Buchman, City Prosecutor, and Brenda J. Keltner, Assistant City Prosecutor, for appellant.
R. William Meeks and Samuel H. Shamansky, for appellee.
Carlile, Patchen & Murphy, Stephen J. Smith, Mitchell H. Banchefsky and Scott R. Mergenthaler, urging reversal for amicus curiae, Ohio Association of Chiefs of Police, Inc.
DOUGLAS, J.
{¶ 9}
“(B) Breath tests used to determine whether an individual‘s breath contains a concentration of alcohol prohibited or defined by * * * division (A)(3) of section
4511.19 * * * or any other statute or local ordinance prescribing a defined or prohibited breath-alcohol concentration shall be performed by a senior operator or an operator who is under the general direction of a senior operator. General direction does not mean that the senior operator must be physically present during the conduct of the test. A senior operator shall be responsible for the care, maintenance, and calibration of the evidential breath testing instruments.” (Emphasis added.) 1989-1990 Ohio Monthly Record 1315, effective May 5, 1990.
{¶ 11} In Aurora, supra, at paragraph two of the syllabus, we held, “Where the Director of Health, pursuant to
{¶ 12} Young contends that the prosecution failed to prove at the suppression hearing that Rickenbacher was under the “general direction” of Scharf as required by former
{¶ 13} However, we believe that Young‘s reliance on Aurora is misplaced. In Aurora, we were asked to interpret former
{¶ 14} Following our decision in Aurora, the DOH amended
{¶ 15} In this case, Young is essentially asking us to impose a requirement that is not contained in the regulation and was apparently rejected by the DOH. In this regard, if we were to accept Young‘s contentions and add the language to the regulation, we would be legislating by judicial fiat, which would undermine the discretionary authority that was delegated solely to the DOH by the General Assembly. The DOH, not this court, was granted the authority to determine the qualifications and functions of those personnel who are to administer breath testing devices. See State v. Yoder (1993), 66 Ohio St.3d 515, 518, 613 N.E.2d 626, 629.
{¶ 16} Accordingly, we find that the court of appeals erred in determining that former
{¶ 17} The DOH has approved the BAC Datamaster as an instrument for testing the alcohol concentration in a person‘s breath.
{¶ 18} In the case at bar, testimony during the suppression hearing revealed that at the time of Young‘s breath test, Scharf and Rickenbacher held valid permits for operating the BAC Datamaster. According to Rickenbacher, to maintain his operator‘s permit he was required to take a proficiency exam every year and a written exam every two years. Rickenbacher also testified that when he took his 1993 proficiency test, Scharf and a representative from the Department of Health were present at the examination. In addition, Rickenbacher indicated that Scharf was readily accessible if any questions ever arose regarding the BAC Datamaster. In light of these facts, we disagree with Young‘s contention that the Dublin Police Department, in administering the breath test in question, failed to comply with former
{¶ 19} Therefore, for the foregoing reasons, we reverse the judgment of the court of appeals.
Judgment reversed.
MOYER, C.J., M.L. RESNICK, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.