State v. FarrellState v. Farrell
Hunter Brown, Bowling Green City Prosecutor, and Nicholas P. Wainwright, for appellee.
Blaise Katter and D. Timothy Huey, for appellant.
MAYLE, J.
{¶ 1} Appellant, Daniel Farrell, appeals the May 13, 2020 judgment of the Bowling Green Municipal Court sentencing him for a misdemeanor conviction of operating a vehicle under the influence of alcohol (“OVI“). For the following reasons, we reverse.
I. Background and Facts
{¶ 2} After a traffic stop on September 15, 2019, Farrell was arrested and charged with operating a vehicle while under the influence of alcohol in violation of
{¶ 3} On December 23, 2019, Farrell filed a motion to suppress the evidence obtained from the traffic stop. Although Farrell‘s motion argued for the suppression of the traffic stop and all evidence obtained from it, by the time of the February 20, 2020 suppression hearing, he had narrowed the scope of his motion to include only the results of his breathalyzеr test on the basis that his breath sample was not obtained in compliance with the regulations promulgated by the Ohio Department of Health (“ODH“). Specifically, Farrell claimed that the canister of dry gas used in the Intoxilyzer 8000 breathalyzer machine that tested his BAC was not traceable to National Institute of Standards and Technology (“NIST“) standards, as required by
{¶ 4} At the outset, some definitions are necessary for a complete understanding of the issues in this case, which involve “metrology“—i.e., “the science of weights and measures or of measurement.” Merriam Webster‘s Collegiate Dictionary 732 (10th Ed.1996). According to an NIST publication that was admitted as defеndant‘s exhibit No. 4 at the suppression hearing, the “Supplementary Materials for NIST Policy Review” (“NIST supplement“), “NMI” means national metrology institute, which is a governmental organization responsible for maintaining a country‘s standard measurements. See National Institute of Standards and Technology, Supplementary Materials for NIST Policy Review (Apr. 29, 2019), I.C.1. NIST is the NMI for the United States. Id. The “Mutual Recognition Arrangement” (referred to in the dry gas certificate of analysis, which was admitted as defendant‘s exhibit No. 1 at the suppression hearing, and by the parties as a “mutual recognition agreement“) is an
{¶ 5} At the hearing, the city called only one witness to testify. Frank Nedveski, an ODH inspector for alcohol and drug testing, testified that his job entailed “recertifying and installing I-8000 Intoxilyzers, breath testing instrument * * *,” training police officers to use breathalyzer machines, and recertifying officers to keep their breathalyzer permits current.
{¶ 6} Nedveski said that the breathalyzer used in Farrell‘s case was an “Intoxilyzer I-8000,” which Nedveski had “certified [] for use by officers.” He explained that an Intoxilyzer 8000 requires the test subject to provide two breath samples. The machine analyzes the amount of infrared light absorbed by each breath sample to determine the sample‘s alcohol content, and then prints the lower of the two BAC results as the test subject‘s BAC. The Intoxilyzer 8000 uses a substance called “dry gas” as a “self-check” before the test subject provides his first breath sample and after he provides his seсond breath sample “to ensure the instrument is working properly.” When he is certifying an Intoxilyzer 8000, Nedveski will exchange the dry gas tank if the tank is low on gas or is near its expiration date. Also during the certification, the Intoxilyzer 8000 “does two self dry gas tests; and it must pass within a tolerance of plus or minus 005.”
{¶ 7} During Nedveski‘s testimony, the prosecutor presented him with defendant‘s exhibit No. 1, which Nedveski identified as “a certification analysis of the dry gas.” He explained that a certificate of analysis “accompanies the dry gas cylinders when we purchase them, that the value of the dry gas is 100, and then it has a NIST traceable of 101. We rеcognize that both are valid testing with the value of 100 into the [Intoxilyzer] 8000.” Based on the information in the certificate of analysis, Nedveski said that the dry gas was “[a]cceptable. It passed the cert.” When he is certifying an Intoxilyzer 8000, Nedveski checks to make sure that the lot number on the dry gas cylinder matches the lot number on the certificate of analysis and that the dry gas does not expire for approximately one year. Nedveski did not provide any explanation of the dry gas certification process. He did, however, confirm that the dry gas cylinder referred to in the exhibit was the same cylinder that was used during Farrell‘s breathalyzer test.
{¶ 8} The certificate, marked as defendant‘s exhibit No. 1, is a certificate of analysis for DRYGAZ ethanol breath standard, which is a mixture of ethanol and nitrogen. It is issued by the manufacturer of DRYGAZ, and accompanies the dry gas cylinders that ODH purchases. The certificate shows that the “BrAC” value for the ethanol in the DRYGAZ is “0.100” and the “AVERAGE ANALYTICAL VALUE” of the “BrAC” of the ethanol in the DRYGAZ is “0.101.” The certificate includes several statements about traceability. First, it states that its “REFERENCE STANDARD” is “N.M.I. TRACEABLE STANDARDS,” which it defines as “CERTIFICATION TRACEABLE TO National Metrology Institute Traceable Standards.” Under the heading “TRACEABILITY,” the certificate has two different statements, one for “Preparation” and one for “Analytical.” The “[p]reparation” statements reads, “Gas mixtures manufactured with balances calibrated by an ISO 17025 accredited company using NIST traceable weights and meets or exceed the requirements
{¶ 9} On cross-examination, Farrell‘s attorney clarified with Nedveski that Nedveski was trained in operаting, maintaining, and repairing breathalyzers, but his training did not extend to chemistry or testing methods for dry gas. As counsel summarized it, “So basically * * * they gave you a * * * dry gas cylinder, and you plugged that thing into the machine. And it comes with a piece of paper, and * * * it‘s not part of your training and background to interpret that for the courts or anything?” Nedveski responded, “I have no background to challenge the method of their testing.” Later, as counsel asked Nedveski about two other exhibits—defendant‘s exhibit No. 3, a document titled “NIST Policy on Metrological Traceability” (“NIST policy“), and defendant‘s exhibit No. 4, the NIST supplement—Nedvеski reiterated that he did not “have the education background to call [NIST] up and say they did something wrong.”
{¶ 10} In its written closing argument, the city argued that it had the burden of showing substantial compliance with the regulations governing breathalyzer tests, which it had done through Nedveski‘s testimony and the exhibits. The certificate of analysis showed that the DRYGAZ was “‘NMI’ Traceable” and “NMI is recognized [by NIST] through the Mutual Recognition Agreement.”
{¶ 11} In his written closing argument, Farrell argued that the city failed to show strict compliance with
{¶ 12} The trial court denied Farrell‘s motion to suppress. In its decision, it found that “use of the dry gas similar to that in [Farrell‘s] test and previously approved by the Ohio Department of Health substantially complied with the ODH regulations for Intoxilyzer 8000 instruments.” The court also determined that Farrell had presented “no expert testimony that the language on the dry gas certificate in defendant‘s exhibit No. 1 meant that the gas in question was not traceable to NIST standards.” The court concluded that the city had shown substantial compliance with
{¶ 13} Following the denial of his motion to suppress, Farrell pleaded no contest to an amended charge of OVI in violation of Bowling Green Code 73.01(A)(1)(d), the equivalent of
{¶ 14} Farrell appeals his conviction, raising one assignment of error:
The Trial Court Erred in Overruling the Motion to Suppress[.]
II. Law and Analysis
{¶ 15} In his assignment of error, Farrell argues that the trial court erred in denying his motion to suppress because the city failed to show any compliance with
{¶ 16} The city responds that it met its burden of showing substantial compliance with the regulations because Nedveski testified thаt the cylinder of dry gas that he installed in the Intoxilyzer 8000—which was in use at the time of Farrell‘s breathalyzer test—was provided to him by ODH and, as far as Nedveski was aware, the dry gas met the requirements for certification. The city argues that we are required to defer to ODH‘s choice of dry gas and cannot “question[] the legitimacy of preapproved ODH Solutions and Methods.” The city also argues that the “Governing Case Law on this Issue * * *” shows that DRYGAZ complies with
A. Standard of review
{¶ 17} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The trial court acts as the trier of fact at a suppression hearing by weighing the evidence and determining the credibility of the witnesses. Although we must accept any findings of fact that are supported by competent, credible evidence, we conduct a de novo review to determine whether the facts satisfy the applicable legal standard, and this independent review is done without deference to the trial court. State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7, citing Burnside at ¶ 8; State v. Jones-Bateman, 6th Dist. Wood Nos. WD-11-074 and WD-11-075, 2013-Ohio-4739, ¶ 9.
{¶ 18} In
{¶ 19} To trigger the presumption of admissibility in
{¶ 20} Although the Ohio Supreme Court has determined that “rigid compliance with the Departmеnt of Health regulations is not necessary for test results to be admissible[,]” it has also “limit[ed] the substantial-compliance standard * * * to excusing only errors that are clearly de minimis” or that can be characterized as “‘minor procedural deviations.‘” Id. at ¶ 34, citing State v. Steele, 52 Ohio St.2d 187, 370 N.E.2d 740 (1977); and quoting State v. Homan, 89 Ohio St.3d 421, 426, 732 N.E.2d 952 (2000).
{¶ 21} By adopting this standard, the Supreme Court sought to prevent lower courts from making judicial determinations of whether the state‘s compliance with alcohol-testing regulations affected the reliability of alcohol-test results. It did this to prevent the courts from “second-guessing whether the regulation with which the state has not complied is necessary to ensure the reliability of the alcohol-test results” and “usurping a function that the General Assembly has assigned to the Director of Health * * *“—i.e., “ensur[ing] the reliability of alcohol-test results * * *“—which the court deemed prudent because the director of ODH “possesses the scientific expertise that [a court] does not.” Id. at ¶ 32, 34.
{¶ 22} The regulations that the director of ODH promulgated related to alcohol testing are in
Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code [i.e., the Intoxilyzer 8000] shall automatically perform a dry gas control using a dry gas standard traceable to the national institute of standards and technology (NIST) before and after every subject test. For purposes of [the Intoxilyzer 8000], a subject test shall include the collection of two breath samples. A dry gas control is not required between the two breath samples. (Emphasis added.)
The regulation also requires the use of dry gas traceable to NIST any time “[r]epresentatives of the director” of ODH “perform an instrument certification on * * *” the Intoxilyzer 8000, which must be done “no less frequently than once every calendar year or when the dry gas standard on the instrument is replaced, whichever comes first.”
B. The city failed to meet its burden of showing substantial compliance with Ohio Adm.Code 3701-53-04 .
{¶ 23} At the suppression hearing, the city did not present any testimony regarding the traceability of the dry gas
{¶ 24} As an initial matter, we address the city‘s argument that we must defer to ODH and accept its choice of dry gas without question. Although the Ohio Supreme Court has recognized that the director of ODH has scientific expertise superior to that of the judiciary, Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 32, and we agree that courts “cannot undercut [ODH‘s] rulemaking authority * * *” by ignoring or adding to the requirements of validly-adopted regulations, State v. Yoder, 66 Ohio St.3d 515, 518, 613 N.E.2d 626 (1993), courts are not required to blindly accept the truth of the information that the state presents simply because it involves science. Rather, the state is required to “establish that it substantially complied with the alcohol-testing regulations to trigger the presumption of admissibility” in
{¶ 25} Contrary to the city‘s argument, this is not a case where we, as a court, are looking at compliance with
{¶ 26} Turning to the evidence before the trial court, the DRYGAZ certificate of analysis plainly stated that the “CERTIFICATION [was] TRACEABLE TO National Metrology Institute Traceable Standards.” (Emphasis added.) Equally plain is
{¶ 27} According to the NIST policy, “[m]etrological traceability requires the establishment of an unbroken chain of calibrations * * * to specified references.” Although NIST “assures the traceability of measurement results that NIST itself provides, * * * [o]ther organizations are responsible for establishing the traceability of their own results to those of NIST or other specified references.” It is official
{¶ 28} The NIST supplement goes into much greater detail about metrological traceability and when a measurement is—or is not—traceable to NIST standards. Of importance here is the discussion of the Mutual Recognition Arrangement (“MRA“). The NIST supplement explains that the MRA is an agreement among the NMIs that are members of the International Committee on Weights and Measures. In short, the arrangement allows member NMIs to recognize and accept as equivalent the measurements established by the NMIs of all other member countries. Section I.E.2. of the NIST supplement directly addresses whether measurements that are traceable to standards maintained by one signatory NMI are also traceable to standards maintained by another signatory NMI:
While signatory NMIs (including NIST) recognize the validity of other signatories’ measurement and calibration certificates under the MRA, such recognition does not mean that measurement results obtained by one signatory NMI are automatically traceable to stated references developed and maintained by any other signatory NMI. However, users of measurement results * * * may well decide that sufficient evidence exists under the MRA to prоvide mutually acceptable traceability of these results to the standards and measurements of two or more participating NMIs. (Emphasis added.)
{¶ 29} The information in section I.E.2. of the NIST supplement tells us two things: (1) metrological traceability of measurement results to standards maintained by some unspecified NMI—even one that is a signatory to the MRA—does not automatically result in traceability to NIST standards and (2) the proponent of the measurement is free to decide that the MRA provides sufficient evidence of “mutually acceptable traceability” between the other NMI‘s standards and NIST‘s standards. Essentially, traceability to another NMI that is an MRA signatory is not definitively synonymous with traceability to NIST. Rather, NIST allows the proponent of the measurement to articulate why its reference to standards maintained by another signatory NMI is sufficient to support its claim of traceability to NIST standards. Importantly, both the NIST policy and the NIST supplement clearly state that the proponent of the measurement has the burden of showing that its measurement is traceable to NIST standards.
{¶ 30} So, to summarize, the trial court had before it evidence that the dry gas used in Farrell‘s breath test was traceable to some unnamed NMI that was a signatory to the MRA, as well as policy statements from NIST that explained (1) the proponent of the measurement is responsible for showing its traceability to NIST and (2) traceability to an NMI that NIST recognizes through the MRA does not necessarily equate to traceability to NIST. Missing from the evidence before the trial court, however, is any testimony or documentary evidence establishing that the NMI standard at issue here—i.e., the “National Metrology Institute Traceable Standards” in the DRYGAZ certificate of analysis—is the equivalent of NIST traceable standards. There is no evidence that DRYGAZ
{¶ 31} Based on this evidence, we cannot say that the city demonstrated in this case that it used “a dry gas control using a dry gas standard traceable to the national institute of standards and technology (NIST) * * *,” as required by
{¶ 32} The next question we must address is whether the city‘s use of dry gas traceable to “National Metrology Institute Traceable Standards” rather than NIST standards substantially complies with
{¶ 33} In Burnside, the Supreme Court held in the context of the state‘s failure to use a solid anticoagulant in a blood-alcohol test that “[a] court infringes upon the authority of the Director of Health when it holds that the state need not do that which the director has required.” Burnside at ¶ 33. Although this case involves the regulation related to breath-alcohol tests, the same logic applies. Here, the director of ODH unambiguously required the Intoxilyzer 8000 to use a dry gas standard that was traceable to NIST standards. The evidence in this case shows that the dry gas was traceable to unspecified NMI standards, but does not show that those NMI standards and NIST standards are equivalent or interchangeable. Without that critical link, we cannot find that the city met its burden of demonstrating that Farrell‘s breath test was administered in substantial compliance with
{¶ 34} The city argues that “Governing Case Law” shows that DRYGAZ complies with ODH alcohol-testing rеgulations, and urges us to adopt the reasoning of the three municipal court cases that the trial court relied on in its suppression decision: State v. Johnson, Lima M.C. No. 19 TRC 07793 (Jan. 24, 2020); State v. Lee, Wadsworth M.C. No. 18 TRC 04104 (Dec. 4, 2019); and State v. Bennett, Marietta M.C. No. 18 TRC 8484(A-C) (Sept. 5, 2019). Each court found that the state substantially complied with
{¶ 35} In Johnson, the defendant relied on an older certificate of analysis from
{¶ 36} Farrell‘s arguments in this case do not rely on changed language in the DRYGAZ certificate of analysis, so we find that Johnson is distinguishable.
{¶ 37} In Lee, the state presented the testimony of Jeanna Walock, who was the “Drug and Alcohol Testing Administrator for the Alcohol and Drug Testing Program at the Ohio Department of Health” and who the court qualified as an expert in forensic toxicology. Walock specifically testified that the dry gas at issue was traceable to NIST in two ways. First, she testified “consistent with the certificate of analysis * * * that the gas mixtures manufactured with balances calibrated by an ISO 17025 accredited company using NIST traceable weight and meets the requirements of the NIST handbook.” Walock also testified that “the dry gas was traceable to the NIST standards and the analytical instruments were calibrated using NMI traceable standards, which is recognized by NIST through a Mutual Recognition Agreement.” Essentially, Walock—an ODH administrator who was also an expert in forensic toxicology—testified that the information on the DRYGAZ certificate of analysis demonstrated traceability to NIST. The Wadsworth Municipal Court found that this was sufficient to show that the state met its burden of demonstrating substantial compliance with
{¶ 38} Similarly, in Bennett, the Marietta Municipal Court found that the certificate of analysis presented by the state showed that the dry gas at issue was “‘N.M.I. Traceable’ not NIST traceable,” but that the certificate also stated that “‘NMI is recognized by NIST through the Mutual Recognition Agreement (CIPM MRA).‘” Although the court found that “[t]he testimony from the State‘s witnesses is a bit circular * * *[,]” it ultimately determined that the state‘s witnesses showed that ODH chose the particular brand of dry gas at issue and that “the U.S., through NIST, is a signatory to the National Metrology Institute Agreement.” Because the court was “directed * * * to defer to the decisions of the Ohio Director of Health[,]” the court found that the state had shown substantial compliance with
{¶ 39} Unlike this case, there is no indication that the municipal courts in Lee and Bennett were presented with the NIST policy or NIST supplement. In addition, the state presented witnesses who were competent to testify on the issue of traceability in both Lee and Bennett. Here, the city did not present any testimony from anyone that the informаtion on the DRYGAZ certificate of analysis should be
{¶ 40} Because the evidence before the trial court did not support its finding that the state substantially complied with
III. Conclusion
{¶ 41} Based on the foregoing, the May 13, 2020 judgment of the Bowling Green Municipal Court is reversed, and Farrell‘s conviction is vacated. The city is ordered to pay the costs of this appeal pursuant to
Judgment reversed.
Thomas J. Osowik, J.
Christine E. Mayle, J.
Myron C. Duhart, J.
CONCUR.
A certified copy of this entry shall constitute the mandate pursuant to
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.