         [Cite as State v. Nash, 2014-Ohio-129.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-120864
                                                       TRIAL NO. 12TRC-25999B
        Plaintiff-Appellant,                       :
                                                            O P I N I O N.
  vs.                                              :

ALANA NASH,                                        :

    Defendant-Appellee.                            :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: January 17, 2014


John P. Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Lauren M.
Yanovsky, Assistant City Prosecutor, for Plaintiff-Appellant,

Office of the Hamilton County Public Defender and Josh Thompson, for Defendant-
Appellee.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Presiding Judge.

       {¶1}     Plaintiff-appellant the city of Cincinnati appeals the trial court’s

decision suppressing the result of defendant-appellee Alana Nash’s breath-alcohol

test. Because we hold that the city substantially complied with the Ohio Department

of Health (“ODH”) regulations regarding breath-alcohol testing, we reverse the trial

court’s judgment.

       {¶2}     On May 30, 2012, Nash was arrested and charged with operating a

motor vehicle while under the influence of alcohol in violation of               R.C.

4511.19(A)(1)(a), operating a motor vehicle with a prohibited breath-alcohol content

in violation of former R.C. 4511.19(A)(1)(h), and possession of an open container of

intoxicating liquid under R.C. 4301.62. She submitted to a breath-alcohol test on an

Intoxilyzer 8000, which yielded a result of .213 grams by weight of alcohol per 210

liters of breath.

       {¶3}     Nash subsequently filed a motion to suppress the result of the breath-

alcohol test on a number of grounds. At an evidentiary hearing, the city presented

the testimony of Mary Martin, the program administrator for alcohol and drug

testing at ODH, who testified about the regulations and procedures related to the

Intoxilyzer 8000. The trial court found that ODH had not established procedures for

issuing permits for Intoxilyzer 8000 operators, as required by R.C. 4511.19 and

3701.143. Therefore, it granted Nash’s motion to suppress. The city has filed a

timely appeal under R.C. 2945.67(A) and Crim.R. 12(K) from the trial court’s

judgment.

       {¶4}     The city presents two assignments of error for review, which we

address out of order. In its second assignment of error, the city contends that the

trial court erred in granting Nash’s motion to suppress the breath-alcohol test on the




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basis that ODH had failed to promulgate the necessary qualifications for operators of

the Intoxilyzer 8000.      It argues that ODH has established a procedure and

requirements for obtaining a permit to use the Intoxilyzer 8000. This assignment of

error is well taken.

       {¶5}     Appellate review of a motion to suppress presents a mixed question of

law and fact. We must accept the trial court’s findings of fact as true if competent,

credible evidence supports them. But we must independently determine whether the

facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Ojile, 1st Dist. Hamilton Nos. C-110677

and C-100678, 2012-Ohio-6015, ¶ 61.

       {¶6}     When a defendant challenges the admission of a breath-alcohol test,

courts apply a burden shifting analysis. The state must show substantial compliance

with ODH regulations, and if the state meets that burden, a rebuttable presumption

arises that the test results are admissible. Burnside at ¶ 24; State v. Muchmore, 1st

Dist. Hamilton No. C-120830, 2013-Ohio-5100, ¶ 16. Then, the burden shifts back to

the defendant to show that he was prejudiced by anything less than strict

compliance. Burnside at ¶ 24; Muchmore at ¶ 16.

       {¶7}     In State v. McMahon, 1st Dist. Hamilton No. C-120728, 2013-Ohio-

2557, this court reversed the trial court’s judgment which had relied upon the same

reasoning employed by the trial court in this case in suppressing the defendant’s

breath-alcohol test results. In McMahon, as in this case, Martin had testified that

ODH had a standardized process for obtaining an operator access card for the

Intoxilyzer 8000 as provided for in Ohio Adm.Code 3701-53-07 and 3701-53-09.

ODH had taken the position that the access card was the permit issued to an

operator of the Intoxilyzer 8000. Id. at ¶ 11.




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       {¶8}    We stated, “After a detailed review of the relevant statutes, we find

that the department of health has promulgated the necessary qualifications for the

issuance of an operator access card.” Id. at ¶ 13. We added, “We are persuaded by

Martin’s testimony espousing the department of health’s position that the access

card is the type of permit issued to an operator of an Intoxilyzer 8000 machine.” Id.

We further held that when the relevant administrative code provisions were read

together, they supported the ODH’s interpretation. Id. at ¶ 14.

       {¶9}    Based on our decision in McMahon, we hold that the city

substantially complied with the applicable statutes and ODH regulations, and that

Nash has failed to show any prejudice from any lack of strict compliance. The trial

court erred in granting Nash’s motion to suppress on the basis that ODH had failed

to set forth the requirements for obtaining an operator access card. See Muchmore,

2013-Ohio-5100, at ¶ 18-21; State v. McNett, 1st Dist. Hamilton No. C-120824, 2013-

Ohio-5099, ¶ 18-21. We, therefore, sustain the city’s second assignment of error.

       {¶10}   In its first assignment of error, the city contends that the trial court

erred in granting Nash’s motion to suppress the breath-alcohol test. It argues that

her motion to suppress did not contain any factual allegations and, therefore, its

burden of proof to show substantial compliance with the Ohio Department of Health

regulations was “slight.” We have already held that the trial court erred in granting

the motion to suppress under a higher standard; therefore, we find this assignment

of error to be moot and we decline to address it. App.R. 12(A)(1)(c).

       {¶11}   Nash has presented an assignment of error to prevent reversal under

App.R. 3(C)(2), which provides that a cross-appeal is not required where an appellee

seeks to defend a trial court’s judgment “on a ground other than that relied upon by

the trial court,” but does not seek to change the judgment or order. See McCarthy v.




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Sterling Chem., Inc., 1st Dist. Hamilton Nos. C-110805 and C-110856, 2012-Ohio-

5211, ¶ 9.

          {¶12}   Nash contends that the trial court did not err in granting her motion

to suppress because the seizure of her person violated the Fourth Amendment. She

argues that no separate justification existed for her continued detention after the

reason for the initial stop had dissipated. We find no merit in this argument.

          {¶13}   The record shows that University of Cincinnati police officer Thomas

Wiehe heard an alert put out by the Cincinnati Police Department for a stolen vehicle

headed in his direction. After he saw a car matching the description of the stolen

vehicle, he pulled the car over and contacted Cincinnati police. Wiehe testified that

the driver pulled over in a safe and proper manner. He did not get out of his vehicle

or make contact with the driver; instead, he waited for Cincinnati police officers to

arrive.

          {¶14}   Cincinnati police officer Richard Christoph arrived on the scene. He

checked the car’s license plate on the computer prior to approaching the driver, and

“it did not come back stolen.” After checking the license plate, Christoph approached

Nash, who was the driver, to “make sure it was in fact her car, to see if it had been

stolen recently and just had not been taken out of the plate reader system and to see

what was going on and make sure everything was okay.”

          {¶15}   As soon as Christoph made contact with Nash, he noticed a “heavy”

odor of alcoholic beverages on her breath. He also saw an open can of beer in the

console right next to her. He asked Nash if it was her car. She replied that it was and

that she had reported it stolen about a week before. She said that it had been

returned a few days later.

          {¶16}   Christoph told her that she had been stopped because the car was still

listed as stolen, even though when he “ran [the license plate], it did not come back



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that way.” He then asked her if she had had anything to drink, and she said that she

had “had a couple.” He then asked her for her driver’s license. He also asked her to

get out of the car and had her perform field sobriety tests.

       {¶17}    Nash does not challenge the initial stop of her vehicle. She contends

that Christoph’s continued detention of her after the check of her car’s license plates

showed that the car was not stolen violated her Fourth Amendment rights. We

disagree.

       {¶18}    If there is a reasonable and articulable suspicion that an automobile

or its occupants are subject to seizure for a violation of the law, stopping that

automobile and detaining its occupants are reasonable under the Fourth

Amendment. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660

(1979); State v. Lopez, 166 Ohio App.3d 337, 2006-Ohio-2091, 850 N.E.2d 781, ¶ 14

(1st Dist.). An officer conducting a traffic stop may ask the driver “a moderate

number of questions” to determine her identity and to obtain information

confirming or allaying the officer’s suspicions. State v. Jalloh, 2d Dist. Montgomery

No. 24972, 2012-Ohio-5314, ¶ 15, citing Berkemer v. McCarty, 468 U.S. 420, 442,

104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

       {¶19}    Where police have detained an individual to investigate a traffic

violation, they may detain the individual for the length of time necessary to check the

individual’s driver’s license, the vehicle’s registration and the vehicle’s license plate.

State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12; State

v. Hollins, 3d Dist. Hancock No. 5-10-41, 2011-Ohio-5588, ¶ 30. If, during the

investigation of the events that gave rise to the initial stop, the officer discovers

additional facts from which it is reasonable to infer additional criminal activity, the

officer may lengthen the duration of the stop to investigate those suspicions. Batchili

at ¶ 15; Hollins at ¶ 31.



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                        OHIO FIRST DISTRICT COURT OF APPEALS



          {¶20}   While Nash was not stopped initially for a traffic violation, we find

these cases to be analogous because she was validly stopped. While investigating the

stolen-vehicle report, the police officer discovered additional facts from which it was

reasonable to infer additional criminal activity. Wiehe stopped Nash’s car upon a

suspicion that it might have been stolen. Even though Christoph had run the license

plates and the result had not indicated that the car was stolen, the investigation was

not over, and the reason for the stop had not yet dissipated. Christoph indicated that

it was typical to approach the driver as part of the investigation into whether a car

was stolen. When he talked with Nash to determine if it was her car, he noticed a

“heavy” odor of alcohol on her breath and he saw an open container of alcohol in her

car. At that point, he had a reasonable and articulable suspicion that Nash may have

been driving while impaired due to her consumption of alcohol. Therefore, his

continued detention of her and her vehicle did not violate her Fourth Amendment

rights.

          {¶21}    The trial court did not err in overruling Nash’s motion to suppress on

that basis. Her Fourth Amendment argument does not prevent reversal of the trial

court’s decision granting her motion to suppress, and we overrule her assignment of

error. Consequently, we reverse the trial court’s judgment and remand the matter

for further proceedings.

                                                  Judgment reversed and cause remanded.


F ISCHER and D E W INE , JJ., concur.


Please note:
          The court has recorded its own entry this date.




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