State v. Bissaillon, 06-Ca-130 (5-11-2007)State v. Bissaillon, 06-Ca-130 (5-11-2007)
{¶ 1} Defendant-Appellant, Michael Bissaillon, appeals from the judgment of the Municipal Court of Fairborn, Ohio, denying his motion to suppress evidence of breath testing for failing to comply with regulatory guidelines.
{¶ 2} The record indicates that Officer Todd Suchy of the Beavercreek Police Department was dispatched to the scene of a traffic accident at approximately 10:15 p.m. on March 17, 2006. Officer Suchy arrived at the scene five minutes later. Also present were Sara Stoner, Drew Wagner, and Bissaillon‘s father. Ms. Stoner told Officer Suchy that Bissaillon had been following closely behind her and Mr. Wagner, so they turned down Vayview Drive in Beavercreek and pulled over in front of Ms. Stoner‘s house to let him pass. Bissaillon rear-ended their car shortly after they pulled over. Ms. Stoner testified that she had an opportunity to speak to Bissaillon when they got out of their cars. She stated that Bissaillon slurred his speech, looked confused, and smelled like beer. Furthermore, she testified that Bissaillon told her he had been drinking.
{¶ 3} Upon Officer Suchy‘s request, Bissaillon‘s father escorted Bissaillon from inside the house. Officer Suchy testified that Bissaillon appeared to be under the influence — his speech was slurred, his breath smelled of alcohol, and his reactions were slow. According to Officer Suchy, Bissaillon agreed to take field sobriety tests. Officer Suchy first administered the horizontal gaze nystagmus test. The results of this test, however, were suppressed for failure to substantially comply with the National Highway Traffic Safety Administration Manual. Next, Officer Suchy conducted the one-leg stand test. He testified that Bissaillon swayed while balancing, used his arms to balance himself, and put his foot down more than three times. To prevent Bissaillon from
{¶ 4} Bissaillon was charged with OVI — Breath Test .17 g or more, OVI-Underlimit or Refusal, and Assured Clear Distance. On May 26, 2006, Bissaillon filed a motion to suppress evidence of the “stop,” the field sobriety tests, and the breath test. A hearing on the motion was held before a magistrate on May 28, 2006. In light of the evidence presented at the hearing, the magistrate concluded that only the results of the horizontal gaze nystagmus test should be suppressed; consequently, all other allegations made by Bissaillon were overruled. The trial court filed its Decision and Entry adopting the magistrate‘s decision on October 27, 2006. Subsequently, Bissaillon pled no contest to the per se charge of driving with a prohibited concentration. The other two charges were dismissed. The court entered a finding of guilty to the no contest plea.
{¶ 5} Bissaillon appeals the denial of his motion to suppress and raises the following assignments of error:
{¶ 6} I. “The trial court erred in overruling the suppression motion because the State failed to meet its burden of proving that it substantially complied with state regulations pertaining to maintenance of the BAC Datamaster.”
{¶ 7} II. “The results of the breathalyzer should also have been suppressed because the State failed to enter a certified copy of those results into evidence.”
{¶ 8} This court has recognized that the trial court serves as the trier of fact at a suppression hearing; thus, it must judge the credibility of the witnesses and the weight of the evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 20, 437 N.E.2d 583. “In reviewing a trial court‘s decision on a motion to suppress, an appellate court accepts the trial court‘s factual findings, relies on the trial court‘s ability to assess the credibility of witnesses, and independently determines whether the trial court applied the proper legal standard to the facts found.” State v. Hurt, Montgomery App. No. 21009, 2006-Ohio-990, at ¶ 16 (citations omitted). Hence, this determination requires an independent review, without deference to the trial court‘s conclusions. State v. Petitjean (2000), 140 Ohio App.3d 517, 533, 748 N.E.2d 133 (citations omitted).
{¶ 9} Upon review of the record, we find that the trial court erred in overruling Bissaillon‘s motion to suppress evidence of his breath test results. The State failed to satisfy its burden of demonstrating substantial compliance with Ohio Department of Health (“ODH“) regulations pertaining to calibration of the Breathalyzer BAC and proper utilization of the instrument check solution. Therefore, the judgment of the trial court will be reversed, and the case will be remanded for further proceedings.
I
{¶ 10} In his first assignment of error, Bissaillon contends that the State failed to prove that it substantially complied with the ODH regulations relating to maintenance of the Breathalyzer BAC. Specifically, Bissaillon argues that the breath machine was not properly calibrated; the instrument check solution was not used within three months after its date of first use nor properly refrigerated; and the State did not verify the radio frequency interference (“RFI“) detector.
{¶ 11} When the admissibility of a breath test is challenged in a motion to suppress, the first issue that must be considered is whether the motion was stated with sufficient particularity to put the prosecutor and the court on notice of the basis of the challenge. See State v. Shindler (1994), 70 Ohio St.3d 54, 58, 636 N.E.2d 319.
{¶ 12} Once it is established that the defendant has set forth a sufficient basis for a motion to suppress, the burden shifts to the State to show that it substantially complied with the ODH regulations involved. State v. Plummer (1986), 22 Ohio St.3d 292, 490 N.E.2d 902, syllabus. The burden to establish substantial compliance, however, only extends to the level with which the defendant takes issue with the legality of the test. State v. Johnson (2000), 137 Ohio App.3d 847, 851, 739 N.E.2d 1249. When the defendant‘s motion to suppress merely raises a generalized claim of inadmissibility and identifies the section(s) of the Administrative Code implicated in that claim, the burden on the State is fairly slight. Williams, supra, at *3. See, also, State v. Embry, Warren App. No. CA2003-11-110, 2004-Ohio-6324, at ¶ 24 (simply reiterating Administrative Code provisions creates a burden on the State to respond only in general to the issues raised). To satisfy its burden, we have found that the State “need only offer prima facie proof that each element of the approved method was performed in a manner sufficient to render the test result evidence reliable.” Williams, supra. Thus, the State must demonstrate compliance only in general terms when the motion to suppress raises issues in general terms. State v. Lampe, Montgomery App. No. 20499, 2004-Ohio-5832, at ¶ 9 (citation omitted). No specific evidence is required unless the defendant raises a specific issue in his or her motion. Johnson, 137 Ohio App.3d at 851.
{¶ 13} Here, Bissaillon raises several issues regarding the State‘s compliance
{¶ 14} Bissaillon contends that the breath machine was not properly calibrated in accordance with
{¶ 15} We find that the State was put on notice by Bissaillon‘s motion that he intended to challenge the validity of the instrument check solution. However, the burden on the State to show substantial compliance remained general. As stated by the Twelfth District, “in order to require the state to respond specifically and particularly to issues
{¶ 16} At the hearing, Officer Suchy testified that it is the usual practice and procedure of the Beavercreek Police Department to discard the instrument check solutions at three months from the dates they are opened. Furthermore, he provided that the department has a policy in which the Breathalyzer BAC is calibrated every six days, as opposed to every seven days under
{¶ 17} Officer Suchy‘s testimony, however, contained no indication of personal observations of compliance with ODH regulations beyond mere knowledge of routine practices. Although the State‘s burden in this instance is general and slight, a common factor in Ohio cases involving officer testimony has been first-hand knowledge of
{¶ 18} In the present action, the following exchange took place at the motion hearing between Bissaillon‘s attorney and Officer Suchy concerning the officer‘s personal knowledge of compliance with ODH regulations:
{¶ 19} “Q And do you know who calibrated the breath machine, the last calibration prior to Michael taking the breath test?
{¶ 20} “A No, I do not.
{¶ 21} “Q Do you know who calibrated the machine the calibration after he took his test?
{¶ 22} “A No, I do not. We have all those records at the police department. I didn‘t know that I needed them today.” (Tr. at 34.)
{¶ 23} “* * *
{¶ 24} “Q Do you know on what date or at what time the last instrument check had been performed prior to Mr. Bissaillon taking his breath test?
{¶ 25} “A The instrument calibration check?
{¶ 26} “Q Yes.
{¶ 27} “A I do not know. Like I said, we maintain a six-day period between tests, so, that way, we never go over or even get to the 192 hours.
{¶ 28} “Q But you don‘t personally have any knowledge of on what day or at what time the last calibration would have been performed?
{¶ 29} “A No.
{¶ 30} “Q Or, likewise, the subsequent?
{¶ 31} “A Correct, I do not know.” (Tr. at 34-35.)
{¶ 32} “* * *
{¶ 33} “Q So, as far as that goes, do you know what the result was for the calibration, the last calibration that was done to the machine prior to Michael taking his breath test?
{¶ 34} “A Prior to, no. If it was out of compliance, the machine would have been taken out of service.
{¶ 35} “Q But you don‘t, again, you don‘t have any personal knowledge yourself?
{¶ 36} “A No.
{¶ 37} “Q And, likewise, for the subsequent test?
{¶ 38} “A Correct.
{¶ 39} “Q And do you know when the solution that was used to calibrate the machine either immediately prior to or following his breath test, you don‘t know the solution‘s date of first use, do you?
{¶ 40} “A No.
{¶ 41} “Q Or the expiration date for that solution?
{¶ 42} “A No, ma‘am.
{¶ 43} “Q Do you know whether the solution that was used was kept under refrigeration after being used?
{¶ 44} “A Yes, ma‘am.
{¶ 45} “Q Did you personally place it in the refrigerator?
{¶ 46} “A No, ma‘am.” (Tr. at 36.)
{¶ 47} As this court has stated, the State‘s burden in defending general challenges to ODH alcohol testing regulations is slight. Williams, supra, at *3. However, the prosecutor must still prove that the officer performed the test or instrument check in a manner that sufficiently renders the result evidence reliable. Id. Testifying as to firsthand knowledge that the instrument check was performed according to ODH standards prior to administering the breath test would satisfy this general burden. The State, in this case, has failed to meet this minimal standard. Office Suchy‘s testimony
II
{¶ 48} In his second assignment of error, Bissaillon argues that the results of his breath test should have been suppressed because the State failed to present a certified copy of his test results into evidence. Specifically, he relies on State v. Bowers (2005), 161 Ohio App.3d 149, 2005-Ohio-2593, 829 N.E.2d 755, for the proposition that not presenting any documentary evidence on an issue for which the State has the burden of proof constitutes reversible error. However, in light of our disposition of Bissaillon‘s first assignment of error, this issue has been rendered moot.
{¶ 49} In conclusion, we find that the trial court erred in overruling Bissaillon‘s motion to suppress evidence of his breath test, where the State failed to prove that it substantially complied with ODH regulations regarding the maintenance of the Breathalyzer BAC. Having sustained Bissaillon‘s first assignment of error, the judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this opinion.
FAIN and GRADY, JJ., concur.