Village of Bolivar v. Dick

Jul 31, 1996
No. 95-372
Versions:76 Ohio St. 3d 216
Pfeifer, J.

There is no dispute about the facts in this case. Jessica Dick was arrested for driving under the influence. She took a breath-alcohol test on the BAC Verifier and the results were above the level prohibited by Bolivar Ordinance 434.01(A)(3) and by R.C. 4511.19.1 The only issue is whether, in a prosecution pursuant to R.C. 4511.19 (or any similar municipal ordinance), the result of a breath-alcohol test is admissible when the Department of Health regulation which requires the subject to be observed for twenty minutes prior to administration of the test is satisfied in whole or in part by someone other than the operator of the testing instrument.

R.C. 4511.19(D) states that any bodily substance collected for the purpose of determining whether a person is in violation of the statute “shall be analyzed in accordance with the methods approved by the director of health * * *.” Regulations promulgated by the Director of Health in Ohio Adm.Code 3701-53-02(B) state in pertinent part that “[bjreath samples shall be analyzed according to the operational checklist for the instrument being used.” Thus, the operational checklist, which is part of the BAC Verifier Test Report Form (see Appendix A), provides the “methods approved by the director of health” for the operation of the BAC Verifier.

The first item on the operational checklist is “Observe subject for twenty minutes prior to testing to prevent oral intake of any material.” It is clear that the focus of this item is “to prevent oral intake of any material” and not to ensure that a certified operator does the observing. See State v. Steele (1977), 52 Ohio St.2d 187, 6 O.O.3d 418, 370 N.E.2d 740. Further, under the holding of State v. Plummer (1986), 22 Ohio St.3d 292, 22 OBR 461, 490 N.E.2d 902, at paragraph one of the syllabus, “the results of a urine-alcohol test administered in substantial compliance with Ohio Adm.Code 3701-53-05 are admissible in a prosecution under R.C. 4511.19.” With respect to the issue before us, we see little difference between a urine-alcohol test and a breath-alcohol test and adopt the holding of Plummer to the case at hand. Accordingly, we hold that when two or more officers, one of whom is a certified operator of the BAC Verifier, observe a defendant continuously for twenty minutes or more prior to the administration of a breath-alcohol test, the twenty-minute observation requirement of the BAC Verifier operational checklist has been satisfied.

The judgment of the court of appeals is affirmed, and the case is remanded to the trial court for further proceedings consistent with this decision.

Judgment affirmed and cause remanded.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Cook and Stratton, JJ., concur.

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Notes

. Bolivar Ordinance 434.01(A)(3) is substantially similar to R.C. 4511.19(A). “Because the local ordinance is patterned after R.C. 4511.19, our analysis refers to R.C. 4511.19 and the relevant case law interpreting that statute.” Defiance v. Kretz (1991), 60 Ohio St.3d 1, 3, 573 N.E.2d 32, 34.