{¶ 2} In September 2007, Isbell was arrested and cited with operating a vehicle while under the influence of alcohol in violation of R.C.
{¶ 3} In November 2007, Isbell filed a motion to suppress Trooper Johnson's observations, the results of the breath test and field sobriety tests, and any statements made by Isbell. Among the grounds asserted for suppression of the breath test were that the results of the breath machine calibration and subject tests were not maintained for at least three years, as required under Ohio Admin. Code
{¶ 4} In January 2008, the trial court held a hearing on the motion to suppress, at which the following testimony was adduced.
{¶ 5} Trooper Brad Johnson of the Ohio State Highway Patrol testified that he stopped Isbell on southbound Interstate 75 for suspicion of driving under the influence when he observed Isbell driving very slowly, weaving, and traveling outside of marked lanes; that upon approaching Isbell's vehicle and smelling the strong odor of alcohol on him, and observing his bloodshot eyes and slurred speech, he conducted an HGN, walk and turn, and one leg stand test; that, upon seeing multiple signs of intoxication through the tests, he arrested Isbell for operating a vehicle while under the influence of alcohol; that while continuously observing Isbell from the time he approached the vehicle until the time he arrested Isbell and placed him in the back of the police cruiser, he never saw Isbell place anything in his mouth; that, after a brief pause, he then drove Isbell to the police station and continued to observe him during the drive; that, although he was observing Isbell while driving, he was not able to watch him "every second of every minute" (motion to suppress hearing tr., p. 45) because the interior lights were out in the cruiser and he was watching traffic; but, that he had the camera in the cruiser turned around in order to monitor Isbell. Trooper Johnson continued *5 that when he arrived at the police station, he performed a breath analysis test on Isbell; that before he performed the test, he had observed Isbell for over forty-five minutes; that he is certified as a senior operator of the breath analysis machine; and, that the operating manuals for the machine are kept right next to it.
{¶ 6} Trooper Johnson further testified that a checklist is followed when conducting a breath test; that the results of calibration checks are kept at the site of the machine; that he was not aware if there were repair and service records for the breath analysis machine because he did not believe the machine had been repaired or serviced; that the operator's manual for the breath analysis machine instructs the operator to not tell the subject to blow hard into the machine when obtaining a breath sample; and, that he never instructed Isbell to blow hard into the machine.
{¶ 7} Trooper Christopher Ellison of the Ohio State Patrol testified that he is a certified senior operator of the breath analysis machine; that he is assigned the duties of calibrating and operating the machine; that the machine is calibrated every Sunday and the records for the last one hundred calibration tests are kept at the Shelby County Sheriff's office; that after the one hundredth test, the records are moved to the Piqua post of the Ohio State Patrol; and, that the records for the one hundred tests can cover any range of time periods, from a few months up to a year, depending on how long it took to conduct the tests. *6
{¶ 8} Larry Dehus, a forensic scientist and expert witness for Isbell, testified that he was formerly employed by the Miami Valley Regional Crime Lab for ten years; that he has been involved in cases throughout Ohio and other states regarding procedures and policies concerning breath tests and breath testing instruments; that he observed the breath analysis machine at the Shelby County Sheriffs Department and found there to be an operator's manual and results of calibration tests kept at the site of the machine, but that he did not find any records relating to repair or maintenance of the machine; that the Department of Health regulations require proficiency tests to be conducted on each of the operators; that the regulations require the results of the proficiency tests to be kept at the site of the tests; that he did not observe these proficiency test records at the sheriffs department; and, that he went to the Piqua post of the Ohio State Patrol to request these records, but was denied access.
{¶ 9} After the conclusion of all testimony, several exhibits were admitted, including the results of Isbell's breath analysis test, evidencing a blood alcohol content in excess of the legal limit, the operator guide and supervisor guide for the breath analysis machine, and a video recording of the traffic stop and breath test.
{¶ 10} In March 2008, the trial court overruled Isbell's motion to suppress. In the judgment entry the trial court stated the following: *7
B. The Defendant argues that the Trooper did not properly instruct the Defendant on how to blow his breath in the Datamaster.
The Trooper told the Defendant "to take a really deep breath and blow hard into the machine." The Court finds that the Trooper substantially complied with the Department of Health Regulations in this regard and this branch is overruled.
C. The Defendant maintains that the Trooper did not watch the Defendant for the mandatory twenty minutes prior to the breath test.
Trooper Johnson testified that that he observed the Defendant consistently for at least twenty minutes before the breath test. Part of this observation time was while the Defendant was handcuffed with his hands behind his back in the seat of the patrol car. Testimony established that there was no one present to place any object in the Defendant's mouth nor was it possible for the Defendant to place any object in his mouth during this period. * * * [T]he Court finds that the Trooper substantially complied with the Department of Health Regulations in this regard.
* * *
E. Issue concerning keeping the records for three years at the testing site.
The Court finds that the State has substantially complied with the Department of Health Regulations in this regard.
(March 2008 Judgment Entry, pp. 3-4).
{¶ 11} Subsequently, Isbell withdrew his not guilty plea on all charges and entered a plea of no contest to the offense of operating a vehicle while under the influence of alcohol. Thereafter, the State dismissed the charge of failure to operate a vehicle within marked lanes, and the trial court sentenced Isbell to a *8 three-day jail term, imposed a $250 fine, and ordered a one hundred eighty-day license suspension.
{¶ 12} It is from the trial court's denial of his motion to suppress that Isbell appeals, presenting the following assignments of error for our review.
THE TRIAL COURT ERRED IN FINDING THE STATE SUBSTANTIALLY COMPLIED WITH OHIO DEPARTMENT OF HEALTH REGULATIONS WHEN TROOPER JOHNSON DID NOT FOLLOW THE MANUFACTURER'S OPERATING INSTRUCTIONS FOR ADMINISTERING THE BAC DATAMASTER BREATH TEST.
THE TRIAL COURT ERRED IN FINDING THAT THE STATE SUBSTANTIALLY COMPLIED WITH THE ODH RECORD KEEPING REQUIREMENT WHEN THREE YEARS OF RECORDS FOR THE BAC DATAMASTER WERE NOT RETAINED.
THE TRIAL COURT ERRED IN FINDING THE STATE SUBSTANTIALLY COMPLIED WITH THE ODH OPERATIONAL CHECKLIST FOR CONDUCTING THE BREATH TEST, WHEN TROOPER JOHNSON FAILED TO OBSERVE APPELLANT FOR TWENTY MINUTES PRIOR TO THE BREATH TEST.
{¶ 13} The following standard of review applies throughout. *9
{¶ 15} In seeking to suppress the results of a breath analysis test, the defendant must set forth an adequate basis for the motion. State v.Shindler,
{¶ 16} Once an adequate basis for the motion has been established, the State then bears the burden of proof to demonstrate substantial compliance with the ODH regulations. Xenia v. Wallace (1988),
{¶ 17} In his motion to suppress, Isbell asserted, with sufficient particularity, the bases for suppression maintained in his appeal. Accordingly, we find the State was put on notice of its burden of proof to demonstrate substantial compliance with the ODH regulations.
{¶ 19} All bodily substances collected to determine if an individual is operating a vehicle while under the influence of alcohol must be analyzed in accordance with methods approved by the director of health. R.C.
{¶ 20} In State v. Browning, 12th Dist. No. CA2007-10-118,
{¶ 21} Furthermore, in State v. Stout, 5th Dist. No. 07-CA-51,
{¶ 22} In this case, the operational manual for the breath machine, the BAC Datamaster Basic Operator Guide, states as follows:
Position the subject to the right of the instrument. Communicate with the person taking the test. Give clear instructions so that the subject will understand how to provide an adequate breath sample. Do not tell the subject to blow `hard' .
(Emphasis added) (Defendant's Exhibit A, p. 6). While the trial court found that Trooper Johnson told Isbell "to take a really deep breath and blow hard into the machine," (March 2008 judgment entry, p. 3), it also found that Trooper Johnson *13 substantially complied with the ODH regulations. While we find no evidence in the record, including the videotape of the breath test, demonstrating that Trooper Johnson ever gave such an instruction, whether or not the instruction was given does not affect the outcome of our decision. Even if Trooper Johnson failed to follow the instructions given in the breath machine's operator guide, as found by the trial court, adherence to such instruction is not a requirement for admissibility of the breath test, as the ODH has neither adopted the operator guide as part of its regulations, nor has it issued a directive to not instruct a subject to "blow hard." Merely requiring that the operational manual be kept at the site where breath tests are being performed does not give rise to an implicit requirement that the operator must substantially comply with every provision in the manual. Thus, we find that the trial court did not err in overruling Isbell's motion to suppress on this issue.
{¶ 23} Accordingly, Isbell's first assignment of error is overruled.
{¶ 25} Ohio Admin. Code
{¶ 26} Here, Trooper Johnson testified that the original or copies of calibration checks are kept at the site of the breath machine; and that a copy of the machine operator's guide is also kept at the site of the machine. When asked whether any records of service or repairs on the machine are maintained, Trooper Johnson responded that he was not aware that the machine had ever been repaired for there to be such records.
{¶ 27} Additionally, Trooper Ellison testified that the most recent one hundred tests are kept at the site of the breath machine; that all tests over one hundred are moved to the Piqua post of the Ohio State Patrol; and, that the time period those one hundred tests cover can be either a year or just a few months. *15
{¶ 28} Also, Larry Dehus, Isbell's expert witness, testified that, upon inspecting the area where the breath machine is kept, he discovered the operator's manual for the machine and the results of machine calibration tests and prior breath tests conducted on other subjects.
{¶ 29} Based upon the testimony presented, we find that the State demonstrated substantial compliance with Ohio Admin. Code 701-53-01(B)'s requirement that the breath machine's operator's manual be kept in the area where breath tests are conducted. Additionally, we find that the State demonstrated substantial compliance with the requirement that subject tests and calibration tests be maintained for three years pursuant to Ohio Admin. Code
{¶ 30} Furthermore, we find that the State also demonstrated substantial compliance with the requirement in Ohio Admin. Code
{¶ 31} Finally, as to Isbell's argument that the breath test should have been suppressed because records of proficiency examinations were not maintained at the site of the breath machine, and because Dehus was denied access to review all records, we find no merit. First, Isbell cites to no authority for the proposition that proficiency examination records must be maintained, other than the testimony of his expert presented at trial. Ohio Admin. Code
{¶ 32} Accordingly, Isbell's second assignment of error is overruled.
{¶ 34} Ohio Admin. Code
{¶ 35} Here, Trooper Johnson testified that he observed Isbell for over forty-five minutes prior to conducting the breath test; that part of that observation period included the time that Isbell was in the back seat of the police cruiser while he was driving; that while he was driving, he did not observe Isbell continuously, but that he had the camera positioned on Isbell in order to conduct some observation; that he never asked Isbell if he had anything in his mouth, and he never looked into Isbell's mouth; and, that while Isbell was in the police cruiser, his hands were handcuffed behind his back and no one else was present to hand him any substances.
{¶ 36} Although there were periods of time during which Trooper Johnson might not have been continuously observing Isbell, we find that the nature of the circumstances rendered it highly unlikely that he could have ingested a foreign substance without Trooper Johnson's knowledge, as Isbell's hands were *19 handcuffed behind his back, he was in the police cruiser by himself, and Trooper Johnson conducted some observation of him. Furthermore, Isbell presented no evidence that he actually ingested or regurgitated any material, thereby failing to rebut the inference that the breath test was unaffected by some foreign substance. As such, we find the trial court did not err in finding that the State substantially complied with the twenty minute observation requirement.
{¶ 37} Accordingly, Isbell's third assignment of error is overruled.
{¶ 38} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
*1SHAW, P.J., and WILLAMOWSKI, J., concur.