Lead Opinion
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 R.C. 4511.19(D), the General Assembly has provided that bodily substances taken to prove a violation of the driving-while-under-the influence statute "shall be analyzed in accordance with methods approved by the director of health * *
To achieve accurate results for breath testing devices such as the intoxilyzer, the Director of Health prescribed Ohio Adm.Code 3701-53-02(0) as amended effective May 5, 1990, which provides:
“ * * * 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.
In addition, Ohio Adm.Code 3701-53-02(C)(2)(e) requires a new survey when an electronic component, other than original replacement parts or factory authorized parts meeting the same specifications as the original equipment parts, is replaced. Here, the record shows that the servicing and repairs provided on January 16 and February 27, 1991 were: replacement of a breath lamp and a pressure switch, cleaning of printer rollers and printer connectors, and checking of all voltages. The parties stipulated that the replacement components were either original equipment or factory-authorized parts meeting the same specifications as the original parts.
We conclude Ohio Adm.Code 3701-53-02(C)(2)(e) requires a new RFI survey only when any electronic component of the instrument is changed or when the part replaced is not an original or factory-authorized part. Replacement of a breath lamp and a pressure switch does not qualify as electronic component replacements. As noted, the parties stipulated the replacement parts were either original equipment or factory-authorized parts.
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),
We are well aware that a person charged with a violation under R.C. 4511.19 faces serious consequences solely dependent upon the results of a chemical test conducted by an instrument installed, controlled, maintained, regulated, checked and guarded by the state’s law enforcement agencies. However, in promulgating this regulation, it must be presumed that the Director of Health acted upon adequate investigation and in full awareness of the perceived problems with RFI. We must defer to the department’s authority and we may not substitute our judgment for that of the Director of Health.
Accordingly, the judgments of the courts of appeals are affirmed.
Judgments affirmed.
Notes
. R.C. 3701.143 has been amended effective April 16, 1993. The revised statute specifically refers to R.C. 4511.19 as the basis for the Director of Health’s rulemaking authority.
Dissenting Opinion
dissenting. I must respectfully dissent. I agree with the majority that “a person charged with a violation under R.C. 4511.19 faces serious consequences solely dependent upon the results of a chemical test conducted by an instrument installed, controlled, maintained, regulated, checked and guarded by the state’s law enforcement agencies.” I also agree that the Director of Health is delegated the authority to adopt regulations for the use of these instruments. Once promulgated, these regulations are to be given the force and effect of law. Doyle v. Ohio Bur. of Motor Vehicles (1990),
It has been well established that breath testing instruments such as the Intoxilyzer CM4011 used in this case can be affected by electrical interference from nearby radio transmissions. See Taylor, Drunk Driving Defense (3 Ed.1991), Section 6.0.5. This susceptibility to radio frequency interference can result in inaccurate test results. Id. To deal with this problem, the Director of Health promulgated rules limiting the use of radio transmitting antennae during tests and requiring periodic RFI surveys.
In its analysis of Ohio Adm.Code 3701-53-02(C)(2)(a), the majority focuses on the words “location” and “used for testing” to conclude that a new RFI survey is required only when the instrument is relocated more than one foot and testing occurs in that new location. However, as Judge Hadley points out, the words “when used for testing” can be read to refer to the instrument itself, as opposed to the reason for the relocation. He cites to language in Ohio Adm.Code 3701-53-02(A) that states that “ * * * [i]n addition to any other purposes for which they may be used, evidential breath testing instru
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,
We must keep in mind that R.C. 4511.19(A)(3) is a per se offense. A defendant is found guilty if the trier of fact finds that the defendant was operating a motor vehicle and his or her intoxilyzer reading was at the proscribed level. Therefore, guilt or innocence rests on the accuracy of the test results. Newark v. Lucas (1988),
. In fairness, I acknowledge the Fourth Appellate District’s decision in State v. Mulhem (1991),