State v. Dickerson

Jul 16, 1986
No. 85-1037
Versions:25 Ohio St. 3d 64
495 N.E.2d 6
25 Ohio B. 86
1986 Ohio LEXIS 695
Per Curiam.

The sole question before this court is whether the intoxilyzer calibration procedure employed by the State Highway Patrol at the Clinton Township Police Station complies with the intoxilyzer calibration procedure issued by the Director of Health pursuant to R.C. 3701.143 and Ohio Adm. Code 3701-53-02(A) and (B)(2), and 3701-53-04(A).1 Directive No. 6 of Instruction No. 009 issued by the Director of Health on March 16, 1983 states, in pertinent part, that “ [calibration solutions are to be stored in their original screw-top container, under refrigeration, while not in use.” The controversy over whether or not this instruction was complied with turns on the question of whether the calibration solution is “in use” when it is in the simulator and not under refrigeration. Appellant contends that the solution is “in use” only when it is connected to the intoxilyzer breath hose during an actual calibration. Appellee maintains that the portion of the calibration solution which is maintained at breath temperature in the simulator is “in use” insofar as the general testing procedure is concerned.

The purpose of Directive No. 6, as well as all the regulations and prescribed procedures for breath testing and calibration of breath testing *66equipment, is to ensure the most accurate test results possible. The procedure employed by the State Highway Patrol at the Clinton Township Police Station, that is, maintaining the calibration solution at breath temperature in a simulator, allows the intoxilyzer to be calibrated before and after each test, rather than once per week as is minimally required.2 Because cold solution must warm up from twenty to forty-five minutes before a calibration can be performed, such thorough testing would be impossible if the solution were refrigerated after each calibration according to appellant’s interpretation of the regulations.

Furthermore, as noted by the Court of Appeals for Franklin County herein, citing its own case, State v. Korte (Apr. 12, 1983), No. 82 AP-994, unreported, for authority, “a failure to use fresh solutions [for intoxilyzer calibrations] may * * * [result in] low readings which would favor the defendant.” Thus, appellant in this case is unable to demonstrate that he was prejudiced by the state’s calibration procedures.

Therefore, based on both the purpose and actual results of the intoxilyzer calibration procedure, we conclude that a calibration solution is “in use” for the purpose of Directive No. 6 of Instruction No. 009 while it is being maintained at breath temperature in the simulator jar. Accordingly, we affirm the decision of the court of appeals below.

Judgment affirmed.

Celebrezze, C.J., Sweeney, Locher, Holmes, C. Brown, Douglas and Wright, JJ., concur.

Notes

R.C. 3701.143 provides that, “[t]he director of health shall determine, or cause to be determined, techniques or methods for chemically analyzing a person’s * * * breath * * * in order to ascertain the amount of alcohol in a person’s blood.” The intoxilyzer has been approved as an instrument for testing a person’s breath to measure the subject’s blood alcohol concentration. Ohio Adm. Code 3701-53-02(B)(2). The Director of Health is further vested with the duty of issuing instructions for analyzing breath samples. Ohio Adm. Code 3701-53-02(A). To that end, Ohio Adm. Code 3701-53-04(A) provides that “[b]reath testing instruments must be calibrated * * * using methods and techniques * * * recommended by the manufacturer of the calibration instrument or the director of health.” The Director of Health has outlined such calibration methods and techniques in Instruction No. 009 issued on March 16, 1983.

Ohio Adm. Code 3701-53-04(A) provides in pertinent part:

“Breath testing instruments must be calibrated no less frequently than once each week