State v. YoderState v. Yoder
- Reporters:
- , ,
- Before:
- Francis E. Sweeney Sr.
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Motor vehicles -- Driving while intoxicated --
This appeal involves three consolidated cases from Union County. In case Nos. 92-953 and 92-954, consolidated below, appellants Jacob J. Yoder and Thomas G. Grigsby were convicted for driving under the influence of alcohol. Intoxilyzer breath tests showed that each defendant was operating a motor vehicle while having a prohibited amount of alcohol in his breath-- Yoder‘s being .159 grams of alcohol per 210 liters of breath and Grigsby‘s being in excess of .10 grams of alcohol per 210 liters of breath. Similarly, in case No. 92-981, it is undisputed that appellant Keith W. Davidson was convicted for driving under the influence of alcohol when his intoxilyzer test produced a blood-alcohol content result of in excess of .10 grams of alcohol per 210 liters of breath. The same intoxilyzer, housed at the Union County Sheriff‘s Office in Marysville, Ohio, was used for the breath tests administered to Davidson in March 1991, Yoder on April 28, 1991, and Grigsby on
The stipulated facts reveal the following. Properly conducted radio frequency interference (“RFI“) surveys were performed on this device on December 29, 1986, February 22, 1989, June 28, 1989, and May 6, 1991. Prior to the appellants’ arrests and subsequent to the June 1989 RFI survey, the intoxilyzer was out of service on two occasions--January 16, 1991, and February 27, 1991--and sent to Mansfield, Ohio, for maintenance and repairs. After the work was completed, the machine was returned to and placed in its original testing site.
Appellants filed motions to suppress the blood-alcohol content test results alleging, inter alia, that the state could not show that an RFI survey was performed as required by
Thereafter, appellants entered no contest pleas. Upon appeal, in two separate opinions, the Third District Court of Appeals affirmed the convictions, 1992 WL 82518 and 1992 WL 81429, but finding its decisions to be in conflict with the decision in State v. Young (Apr. 11, 1991), Delaware App. No. 90-CA-40, unreported, 1991 WL 57176, certified the records of the cases to this court for review and final determination.
R. Larry Schneider, Union County Prosecuting Attorney, and David W. Phillips III, Assistant Prosecuting Attorney, for appellee in case Nos. 92-953 and 92-981.
John W. Dailey, Jr., for appellants Yoder and Grigsby in case Nos. 92-953 and 92-954.
Cannizzaro, Fraser & Bridges and Don W. Fraser, for appellant Davidson in case No. 92-981.
Francis E. Sweeney, Sr., J. The question presented by these appeals is whether a new radio frequency interference survey must be conducted when the intoxilyzer is removed from its testing location for service and repair, and then returned to the same site and used for testing. For the following reasons, we answer this question in the negative.
Under
In addition, former
To achieve accurate results for breath testing devices such as the intoxilyzer, the Director of Health prescribed
“* * * RFI surveys conducted before the effective date of
this amendment in accordance with the rule as it existed when the surveys were conducted shall remain valid until an event that would require a new RFI survey under paragraphs (C)(2) of this rule occurs.” Subsection (C)(2) states that a new survey is not required unless one of the following changes occurs: “a. The location of the breath testing instrument, when used for testing, is moved more than one foot in any direction;
“b. The instrument‘s axis is changed;
“c. The frequency band of the radio transmitting equipment * * * is changed;
“d. The radio transmitting equipment‘s rated output power is changed;
“e. Any electronic component of the instrument is changed, other than replacement of parts with original equipment replacement parts or factory-authorized replacement parts meeting the same specifications as the original equipment parts; or
“f. A new breath testing instrument is placed into service.”
In dispute in the instant cases are subsections (C)(2)(a) and (e). Initially, we note the parties stipulated that the prior surveys were conducted in accordance with the Ohio Administrative Code. Thus, a valid survey had been performed, which remained valid until an event occurred which would require a new survey. As previously noted, the parties stipulated that the machine was removed for maintenance and repair and then returned to its original testing site. The question therefore becomes whether movement of the machine and the replacement of some parts is an event which would require a new test.
We interpret
In addition,
We conclude
Movement of the machine for maintenance and the replacement of minor parts must have been contemplated by the Director of Health. We cannot undercut the department‘s rulemaking authority by requiring a new RFI test when the regulation does not require one. The Director of Health, not the court, was delegated the discretionary authority for adoption of breath testing devices and the procedures for their use. State v. Vega (1984), 12 Ohio St.3d 185, 189, 12 OBR 251, 255, 465 N.E.2d 1303, 1307.
We are well aware that a person charged with a violation under
For the above-stated reasons, we hold that
Accordingly, the judgments of the courts of appeals are affirmed.
Judgments affirmed.
Moyer, C.J., A.W. Sweeney, Douglas, Resnick and Pfeifer, JJ., concur.
Wright, J., dissents.
Footnote:
1.
Wright, J., dissenting. I must respectfully dissent. I agree with the majority that “a person charged with a violation under
It has been well established that breath testing
In its analysis of
I believe the majority also overemphasizes that the purpose of the RFI survey is to test the environment for electromagnetic or radio interference. It is clear from the regulations that the Director of Health has determined that a new RFI survey must be conducted when certain changes occur in the environment or certain changes occur to the instrument itself that may cause radio and electromagnetic interference to affect the test results. For example, subsection (C)(2)(b) requires a new RFI survey if the axis of the instrument is changed, subsection (C)(2)(e) requires a new RFI survey if electronic components are changed other than with original replacement parts or factory-authorized parts, and subsection (C)(2)(f) requires a new RFI survey if a new machine is used. In each of these situations the environment itself has not changed. Instead, the concern is that the environment will affect the accuracy of the machine‘s results because of a change in the machine.
This case was certified to us by the Third Appellate District because its decision was in conflict with a decision by the Fifth Appellate District in State v. Young (Apr. 11, 1991), Delaware App. No. 90-CA-40, unreported, 1991 WL 57176. The Fifth Appellate District opinion was unanimous that a new RFI survey is required after a machine is removed for repair and returned to the testing location. The Third Appellate District decision that no RFI survey was required was not unanimous and our decision is not unanimous. This disparity in interpretation indicates that this regulation is at best ambiguous. Given this ambiguity and given the serious consequences dependent on
We must keep in mind that
FOOTNOTE:
2. In fairness, I acknowledge the Fourth Appellate District‘s decision in State v. Mulhern (1991), 72 Ohio App.3d 250, 594 N.E.2d 630, in which that court interpreted the predecessor to