State v. KormosState v. Kormos
Jeffrey C. Meadows, 8310 Princeton-Glendale Road, West Chester, Ohio 45069, for defendant-appellee
O P I N I O N
HENDRICKSON, P.J.
{¶ 1} Plaintiff-appellant, the state of Ohio, appeals from an order of the Clermont County Municipal Court granting Nicholas Kormos’ motion to suppress. For the reasons that follow, we reverse the decision of the trial court.
{¶ 2} On December 17, 2010 at approximately 3:00 a.m., Trooper Michael Shimko of the Ohio State Highway Patrol stopped Kormos on Mt. Carmel-Tobasco Road for committing
{¶ 3} Kormos was charged with operating a vehicle under the influence of alcohol in violation of {¶ 4} The state timely appeals, raising one assignment of error: {¶ 5} THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT‘S MOTION TO SUPPRESS. {¶ 6} In its sole assignment of error, the state argues the trial court erroneously suppressed the results of Kormos’ breath test. The state claims the trial court‘s decision was based on an erroneous interpretation of {¶ 7} 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, ¶ 8. See also State v. Wemer, 112 Ohio App.3d 100, 102 (4th Dist.1996). 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. State v. Mills, 62 Ohio St.3d 357, 366 (1992). As such, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Burnside at ¶ 8. “Accepting these facts as true, {¶ 8} Pursuant to Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code shall automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology (NIST). Dry gas control results are valid when the results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the alcohol concentration on the manufacturer‘s certificate of analysis for that dry gas standard. A dry gas control result which is outside the range specified in this paragraph will abort the subject test or instrument certification in progress. {¶ 9} The current calibration sequence for the Intoxilyzer 8000 is documented in a form called “Subject Test Report.” The report has three sections. The first section, entitled “Subject Information,” consists of the offender‘s information, including his or her name, address, date of birth, social security number, age, sex, and driver‘s license number. Below that is “Arrest Information,” which includes the arresting officer‘s name, as well as the date and time of the violation. The last section is entitled “Test Information.” Here, the actual calibration procedure is set forth as follows: {¶ 10} “Air Blanks” ensure that the previous breath sample has been purged from the machine. “Subject Test 1” and “Subject Test 2” indicate each time an individual blows into the machine. “Dry Gas Control” tests check the calibration of the instrument to ensure its results are accurate. See, e.g., State v. Booth, 151 Ohio App.3d 635, 2003-Ohio-829, ¶ 16 (9th Dist.) (“[c]alibration is the process by which a breathalyzer machine is tested for its range of accuracy“). {¶ 11} The sole issue here is a narrow one. The parties ask this court to determine what {¶ 12} Kormos contends that a new “subject test” occurs each time a person blows into the machine. Thus, Kormos argues the phrase “before and after every subject test” requires dry gas control tests before and after “Subject Test 1,” and again before and after “Subject Test 2,” for a total of four dry gas tests per person tested. Conversely, the state argues that the term “subject” as referred to in the code means the “person” being tested, such that there is only one “subject test,” with two opportunities to blow into the machine. Thus, pursuant to the state‘s rationale, only two dry gas control tests are required: one before the “subject” first blows into the machine, and a second test after the subject has completed {¶ 13} Statutory construction presents a legal issue, which we review de novo. See State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶ 8. In a de novo review, this court independently reviews the record without giving deference to the trial court‘s decision. Washington Cty. Home v. Ohio Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio-4342, ¶ 27 (4th Dist.). {¶ 14} In determining what is meant by the phrase “subject test” in connection with {¶ 15} Here, the trial court agreed with Kormos’ interpretation, and found the failure to run dry gas control tests between “Subject Test 1” and “Subject Test 2” was “directly contrary” the language in {¶ 16} The trial court was correct insofar as it intended to define the phrase “subject test” using common meaning, as it is not defined in the regulation. See Anthony, 2002-Ohio-4008 at ¶ 11. However, it is unclear where the court derived its definition. The word {¶ 17} We note that our view of {¶ 18} During the suppression hearing, the state presented the testimony of Mary Martin, the Program Director for Drug and Alcohol Testing for the Health Department. Martin testified she received training from the manufacturer as to how the Intoxilyzer 8000 worked, and that she was familiar with {¶ 19} As an aside, Kormos indicates that Martin was never properly qualified as an expert witness in the field of regulatory interpretation. However, Kormos makes no argument on appeal as to any error in this regard. Even if we were to view Martin as an expert witness not formally qualified by the trial court, her experience as Program Director for the Health Department solidifies her ability to testify as to the department‘s current interpretation of its own regulation. See, e.g., State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 94-95; State v. Anderson, 10th Dist. No. 04AP-1171, 2005-Ohio-5243, ¶ 14. Furthermore, while Martin‘s testimony as to the interpretation of “subject test” was helpful, an expert opinion was not necessary in this regard, where, as previously discussed, this interpretation is supported by a commonly accepted definition of the phrase. Thus, any conceivable error in permitting Martin‘s testimony would be harmless, at best. See State v. Baston, 85 Ohio St.3d 418, 423 (1999) (harmless error in admitting unqualified expert testimony). {¶ 20} Lastly, we note that {¶ 21} Based on the foregoing, we find the Intoxilyzer 8000 calibration sequence comports with the requirements of {¶ 22} The state‘s single assignment of error is sustained. {¶ 23} Judgment reversed and cause remanded. PIPER and HUTZEL, JJ., concur.