[Cite as State v. Drake, 2014-Ohio-509.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :
CAMERON R. DRAKE                             :       Case No. 13CA15
                                             :
        Defendant Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Mount Vernon
                                                     Municipal Court, Case No. 12-TRC-
                                                     5482


JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    February 12, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

P. ROBERT BROEREN, JR.                               CHASE A. MALLORY
5 North Gay Street                                   580 East Rich Street
Suite 222                                            Columbus, OH 43215
Mount Vernon, OH 43050
Knox County, Case No. 13CA15                                                           2

Farmer, J.

      {¶1}    On December 28, 2012, Ohio State Highway Patrol Trooper James

Burkhart stopped appellant, Cameron Drake, for failing to use a turn signal.       Upon

investigation, appellant was asked to perform a BAC DataMaster breathalyzer test. The

breathalyzer machine had been calibrated by Trooper Kamal Nelson. Appellant was

subsequently charged with two counts of operating a motor vehicle under the influence

of alcohol in violation of R.C. 4511.19(A)(1)(a) and (d) and failing to use a signaling

device in violation of R.C. 4511.39.

      {¶2}    On February 7, 2013, appellant filed a motion to suppress, claiming the

breathalyzer was not taken in substantial compliance with the rules and regulations of

the National Highway Traffic Safety Administration (hereinafter "NHTSA"). A hearing

was held on March 19, 2013. By journal entry filed May 1, 2013, the trial court denied

the motion.

      {¶3}    On May 28, 2013, appellant pled no contest to the R.C. 4511.19(A)(1)(d)

charge (operating a motor vehicle with a prohibited blood alcohol content), and the other

two charges were dismissed. By sentencing entry filed same date, the trial court found

appellant guilty and sentenced him to five years of community control.

      {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶5}    "THE TRIAL COURT ERRED WHEN IT FOUND THE TROOPER

POSSESSED A VALID SENIOR OPERATOR'S PERMIT AS REQUIRED TO

ADMINISTER THE TEST TO APPELLANT."
Knox County, Case No. 13CA15                                                                  3


                                               I

       {¶6}   Appellant claims the trial court erred in denying his motion to suppress the

results of the BAC DataMaster test as Trooper Burkhart did not possess a valid senior

operator permit to operate the machine. We disagree.

       {¶7}   There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. 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, 1

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). 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, 86 Ohio App.3d 37 (4th Dist.1993).          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, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."
Knox County, Case No. 13CA15                                                        4


      {¶8}   R.C. 3701.143 states the following:



             For purposes of sections 1547.11, 4511.19, and 4511.194 of the

      Revised Code, the director of health shall determine, or cause to be

      determined, techniques or methods for chemically analyzing a person's

      whole blood, blood serum or plasma, urine, breath, or other bodily

      substance in order to ascertain the amount of alcohol, a drug of abuse,

      controlled substance, metabolite of a controlled substance, or combination

      of them in the person's whole blood, blood serum or plasma, urine, breath,

      or other bodily substance.        The director shall approve satisfactory

      techniques or methods, ascertain the qualifications of individuals to

      conduct such analyses, and issue permits to qualified persons authorizing

      them to perform such analyses.          Such permits shall be subject to

      termination or revocation at the discretion of the director.



      {¶9}   Appellant argues there was a violation of Ohio Adm.Code 3701-53-

09(F)(3) which states the following (applicable version):



             (F) To qualify for renewal of a permit under paragraph (A) or (B) of

      this rule:

             (3) If the individual seeking a renewal permit currently holds an

      operator or senior operator permit, the permit holder shall have completed

      satisfactorily an in-service course for the applicable type of evidential
Knox County, Case No. 13CA15                                                              5


       breath testing instrument which meets the requirements of paragraph (B)

       of this rule, which includes review of self-study materials furnished by the

       director.



       {¶10} Appellant argues the evidence does not demonstrate that Trooper

Burkhart had a valid operator permit for the BAC DataMaster machine. Appellant's

position is that neither Trooper Burkhart nor Trooper Nelson testified they participated in

an in-service course prior to the renewal of their permits.

       {¶11} In its journal entry filed May 1, 2013, the trial court specifically found both

troopers had valid senior operator permits to operate the machine.           Both troopers

testified they had valid senior operator permits, and they passed both the written test

and the proficiency test administered by the Department of Health. T. at 5, 8, 24-25, 41;

State's Exhibits 1 and 6.

       {¶12} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 24, the

Supreme Court of Ohio explained the following:



              After a defendant challenges the validity of test results in a pretrial

       motion, the state has the burden to show that the test was administered in

       substantial compliance with the regulations prescribed by the Director of

       Health.     Once the state has satisfied this burden and created a

       presumption of admissibility, the burden then shifts to the defendant to

       rebut that presumption by demonstrating that he was prejudiced by

       anything less than strict compliance. State v. Brown (1996), 109 Ohio
Knox County, Case No. 13CA15                                                        6


     App.3d 629, 632, 672 N.E.2d 1050.        Hence, evidence of prejudice is

     relevant only after the state demonstrates substantial compliance with the

     applicable regulation.



     {¶13} The Burnside court further stated at ¶ 34:



           Nevertheless, we are cognizant that if "we were to agree***that any

     deviation whatsoever from th[e] regulation rendered the results of a [test]

     inadmissible, we would be ignoring the fact that strict compliance is not

     always realistically or humanly possible." Plummer, 22 Ohio St.3d at 294,

     22 OBR 461, 490 N.E.2d 902. Precisely for this reason, we concluded in

     Steele that rigid compliance with the Department of Health regulations is

     not necessary for test results to be admissible. Steele, 52 Ohio St.2d at

     187, 6 O.O.3d 418, 370 N.E.2d 740 (holding that the failure to observe a

     driver for a "few seconds" during the 20–minute observation period did not

     render the test results inadmissible). To avoid usurping a function that the

     General Assembly has assigned to the Director of Health, however, we

     must limit the substantial-compliance standard set forth in Plummer to

     excusing only errors that are clearly de minimis.      Consistent with this

     limitation, we have characterized those errors that are excusable under

     the substantial-compliance standard as "minor procedural deviations."

     State v. Homan (2000), 89 Ohio St.3d 421, 426, 732 N.E.2d 952.
Knox County, Case No. 13CA15                                                             7


      {¶14} Both troopers took and passed a written test and a proficiency test for

renewal.   Based upon the results of the tests, the Director of Health issued senior

operator permits to the troopers.     We concur with the trial court's finding that the

troopers had valid senior operator permits.

      {¶15} The fact that testimony was not presented on any in-service course is de

minimis to the validity of a permit issued by the Director of Health. The troopers' ability

to administer the test is established by the issuance of the valid permits. Both troopers

testified to obtaining previous permits, 14 (Burkhart) and 13 (Nelson), and their use of

and calibration of the BAC DataMaster machine. T. at 5-7, 41.

      {¶16} The sole assignment of error is denied.

      {¶17} The judgment of the Mount Vernon Municipal Court of Knox County, Ohio

is hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




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