{¶ 3} As appellant was moving toward the patrol car, the Trooper observed that appellant's balance was unsteady and that he swayed as he walked. Once in the patrol car, the Trooper smelled an odor of alcohol. Appellant admitted to consuming three beers at a party earlier in the evening.
{¶ 4} Appellant agreed to submit to field sobriety tests. The Trooper observed all six (6) clues for HGN, four (4) clues on the one leg stand and four (4) clues on the walk and turn test. *3
{¶ 5} Appellant was then arrested for operating a vehicle while under the influence of alcohol and charged with a violation of R.C. §
{¶ 6} Appellant was transported to the Knox County Jail where he was read and shown the BMV Form 2255. Appellant then submitted to a urine test. The Trooper packaged the urine and submitted the sample to the Ohio State Highway Patrol laboratory for testing.
{¶ 7} The specimen was analyzed in accordance with the Ohio Department of Health regulations. The test results were 0.158 grams by weight of alcohol per one hundred milliliters of urine.
{¶ 8} On September 22, 2005, Trooper Johnson charged appellant with a violation of R.C. §
{¶ 9} Appellant filed a Motion to Suppress arguing that the test of a first void urine sample is scientifically unreliable.
{¶ 10} On March 7, 2006, a hearing was held on the Motion to Suppress in the Mount Vernon Municipal Court.
{¶ 11} On March 20, 2006, the trial court overruled the Motion to Suppress.
{¶ 12} On June 20, 2006, the prosecution dismissed all of the charges except the violation of R.C. §
{¶ 13} It is from the denial of the Motion to Suppress and subsequent conviction and sentence that appellant appeals and raises the following two assignments of error: *4
{¶ 15} "II. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶ 17} There are three methods of challenging, on appeal, a trial court's ruling on a motion to suppress.
{¶ 18} First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether said findings of fact are against the manifest weight of the evidence. State v. Fanning (1982),
{¶ 19} Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In that case, an appellate court can reverse the trial court for committing an error of law. State v. Williams (1993),
{¶ 20} Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry (1994),
{¶ 21} In this case, appellant is attacking the scientific reliability of testing the first void of a urine test for alcohol. First, this Court must look at the statutory and corresponding administrative code regulations for guidance.
{¶ 22} R.C. §
{¶ 23} R.C. §
{¶ 24} "For purposes of sections
{¶ 25} R.C. §
{¶ 26} "No person shall operate any vehicle . . . if, at the time of the operation, . . . [t]he person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person's urine."
{¶ 27} Ohio Administrative Code
{¶ 28} "(D) The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. Urine shall be deposited into a clean glass or plastic screw top container which shall be capped, or collected according to the laboratory protocol as written in the laboratory procedure manual.
{¶ 29} "(E) Blood and urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information:
{¶ 30} "(1) Name of suspect;
{¶ 31} "(2) Date and time of collection;
{¶ 32} "(3) Name or initials of person collecting the sample; and
{¶ 33} "(4) Name or initials of person sealing the sample. *7
{¶ 34} "(F) While not in transit or under examination, all blood and urine specimens [SIC] shall be refrigerated."
{¶ 35} Appellant argues that testing on the first void urine specimen is scientifically unreliable. Appellant's expert testified at length to explain why the second void is more scientifically reliable than the first void. This Court must look to the Ohio Director of Health on this issue. The Ohio Director of Health is silent on whether the urine sample collected should be the first or second void. It is clear that the "Director of Health, and not the judiciary, has been entrusted with ensuring the reliability of blood-alcohol test results through regulations-precisely because the former possesses the scientific expertise that judges do not have." State v. Mayl (2005),
{¶ 36} Since there is silence on this issue, this Court will not presume to determine whether it is necessary to test the first or second void. This is a decision that should be left up to the Ohio Director of Health.
{¶ 37} The trial court analyzed the issue correctly when it stated that:
{¶ 38} "The Ohio Supreme Court in Mayl, also, decided that the procedures set forth in R.C.
{¶ 39} Accordingly, this Court overrules Appellant's First Assignment of Error. *8
{¶ 41} On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment." State v. Thompkins,
{¶ 42} R.C. §
{¶ 43} "No person shall operate any vehicle . . . if, at the time of the operation, . . . [t]he person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person's urine."
{¶ 44} All the prosecution needs to prove is that the defendant's concentration exceeds eleven-hundredths of one gram by weight of alcohol per on hundred milliliters of urine. *9
{¶ 45} In this case, the State Highway Patrol Crime Lab report states that the alcohol result was "0.158 grams by weight of alcohol per one hundred milliliters (grams percent) of urine."
{¶ 46} This Court has reviewed the record and finds there was sufficient evidence to establish appellant violated R.C. §
{¶ 47} Appellant's Second Assignment of Error is overruled.
{¶ 48} The judgment of the Mount Vernon Municipal Court is affirmed.
*10By: Delaney, J. Wise, P.J. and Edwards, J. concur.