STATE OF OHIO v. CYNTHIA K. DOLL
C.A. No. 13CA0041
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
May 18, 2015
[Cite as State v. Doll, 2015-Ohio-1875.]
COUNTY OF WAYNE ss: APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. TRC 13-04-03578
Dated: May 18, 2015
MOORE, Judge.
{¶1} Defendant-Appellant Cynthia Doll appeals from the judgment of the Wayne County Municipal Court. We reverse.
I.
{¶2} On April 7, 2013, at 1:24 a.m., Wooster Police Officer Ryan Laskowski observed a vehicle approach a stop sign at the corner of Timken Road and Grosjean and stop past the stop sign. The car continued onto Route 30 westbound. Officer Laskowski noticed the vehicle weaving in its lane and touching the white fog line at one point. The vehicle Officer Laskowski pulled over was driven by Ms. Doll.
{¶3} Ms. Doll was arrested for driving while under the influence and was taken to the jail where BAC testing was administered by Sergeant Kristopher Conwill. Sergeant Conwill administered the first test at 2:45 a.m., which came back as an invalid sample. This result usually occurs “from not getting a complete breath sample.” However, Sergeant Conwill
{¶4} Thereafter, he told Sergeant Earl Kelly about the problem with the machine‘s clock. Sergeant Kelly was a senior operator of the BAC machine. He performed the weekly calibration tests and any repairs that needed to be done. The BAC machine automatically resets for daylight savings time; however, in recent years the date of the start of daylight savings time has changed and Sergeant Kelly believed the machine changed the clock at a point in time when it should not have.
{¶5} To fix the problem, Sergeant Kelly had to use a key and had to remove a panel to access the buttons that change the time. The BAC machine cannot be used while the time is being changed. After fixing the clock, Sergeant Kelly then reassembled the machine and Ms. Doll underwent a second BAC test at 3:05 a.m. after the 20 minute waiting period expired. On that occasion, the machine indicated that the sample was valid.
{¶6} Ms. Doll was arraigned on April 9, 2013, on one count of violating
{¶7} Following a suppression hearing, the trial court denied Ms. Doll‘s motion, concluding that the traffic stop was constitutionally permissible, that the BAC test was given in the three-hour time frame required by the statute, and that the BAC test was conducted in
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY OVERRULING [MS. DOLL‘S] MOTION TO SUPPRESS THE BAC TEST RESULT WHEN THE STATE FAILED TO PRESENT EVIDENCE OF SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS OF [OHIO ADM.CODE] 3701-53-04.
{¶8} Ms. Doll asserts in her sole assignment of error that the trial court erred in denying her motion to suppress because the State failed to demonstrate substantial compliance with
Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{¶9} “DUI offenses are prosecuted within a statutory and regulatory framework.” State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, ¶ 10. ”
{¶10} “[A]n assertion that test results are inadmissible in a criminal trial because the state failed to substantially comply with methods approved by the Director of Health for determining the concentration of alcohol in bodily fluids must be raised through a pretrial motion to suppress.” Edwards at ¶ 13. “After a defendant challenges the validity of test results in a pretrial motion, the state has the burden to show that the test was administered in substantial compliance with the regulations prescribed by the Director of Health.” Burnside at ¶ 24. The substantial-compliance standard excuses “only errors that are clearly de minimis.” Id. at ¶ 34. “Once the state has satisfied this burden and created a presumption of admissibility, the burden then shifts to the defendant to rebut that presumption by demonstrating that he was prejudiced by anything less than strict compliance.” Id. at ¶ 24. “[E]vidence of prejudice is relevant only after the state demonstrates substantial compliance with the applicable regulation.” Id.
{¶11} In her motion to suppress, Ms. Doll challenged the State‘s compliance with
{¶12} Ms. Doll argues that the State was required to demonstrate that a calibration check was conducted prior to Ms. Doll‘s second BAC test after the machine was placed back into service after resetting the clock pursuant to
{¶13} This Court is unable to fully review this matter, however, because the trial court, in its decision, relied on a version of
{¶14} The above quoted version was cited by Ms. Doll in her motion to suppress. However, the trial court‘s entry and the parties’ brief on appeal rely on the current version of the regulation that went into effect on July 25, 2013. That version provides that, “[a]n instrument
{¶15} Moreover, as the trial court did not consider whether the State complied with
{¶16} To the extent Ms. Doll asserts the trial court committed reversible error in denying her motion to suppress, we sustain her assignment of error.
III.
{¶17} The judgment of the Wayne County Municipal Court is reversed and the matter is remanded for proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
JOHN JOHNSON, JR., Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.