25 Ohio St. 3d 64 | Ohio | 1986
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).
The purpose of Directive No. 6, as well as all the regulations and prescribed procedures for breath testing and calibration of breath testing
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.
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