[Cite as State v. Dial, 2013-Ohio-3980.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-13-11

        v.

KIMBERLY DIAL,                                             OPINION

        DEFENDANT-APPELLANT.




                            Appeal from Lima Municipal Court
                              Trial Court No. 12TRC00602

                                       Judgment Affirmed

                          Date of Decision: September 16, 2013




APPEARANCES:

        Andrew R. Bucher for Appellant

        Nicole M. Smith for Appellee
Case No. 1-13-11


PRESTON, P.J.

       {¶1} Defendant-appellant, Kimberly Dial (“Dial”), appeals the judgment of

the Lima Municipal Court finding her guilty of operating a motor vehicle while

under the influence of alcohol (“OVI”) after the trial court denied her motion to

suppress and she entered a plea of no contest. We affirm.

       {¶2} On January 26, 2012, Lima Police Officer Amy Glanemann was on

patrol and initiated a traffic stop of Dial after Officer Glanemann observed Dial

make a wide right turn from East Elm Street onto Bellefontaine Avenue, coming

close to a vehicle in the left-turn lane on Bellefontaine Avenue, then drive left of

the center line. (June 20-21, 2012 Tr. at 53). When she approached the vehicle

and spoke with Dial, Officer Glanemann smelled an odor of alcoholic beverage

coming from Dial, who admitted to consuming two beers at the American Legion

Post. (Id. at 54). Officer Glanemann called for another unit to back her up, and

Officer Dustin Brotherwood arrived at the scene.          (Id. at 6, 54).    Officer

Brotherwood administered field sobriety tests on Dial and concluded that “she was

either at or over the legal amount of alcohol allowed in her system.” (Id. at 13).

Officer Brotherwood arrested Dial and took her to the police station. (Id. at 12).

       {¶3} At the station, Dial was read and shown BMV Form 2255 and

submitted to the breath test offered to her. (Id. at 24-25). Lima Police Lieutenant

Pat Coon administered the breath test using the Intoxilyzer 8000, serial number


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80-004681. (Id. at 25, 29). Dial registered a breath-alcohol concentration of .215

grams by weight of alcohol per 210 liters of breath. (Doc. No. 1). She was

charged with OVI in violation of R.C. 4511.19(A)(1)(a), a first-degree

misdemeanor; operating a vehicle with a prohibited breath-alcohol concentration

of .17 grams or more by weight of alcohol per 210 liters of breath in violation of

R.C. 4511.19(A)(1)(h), a first-degree misdemeanor; and, failure to drive within

marked lanes in violation of Lima City Ordinance 432.08(a). (Doc. No. 1). The

two   alcohol-related   offenses   were   assigned   trial   court   case    number

12TRC00602A, and the marked-lanes violation was assigned trial court case

number 12TRC00602B. (Id.).

      {¶4} Dial entered pleas of not guilty on February 1, 2012. (Doc. No. 5).

On March 14, 2012, she filed a motion to suppress and requested an oral hearing

on her motion. (Doc. No. 11). In her suppression motion, Dial claimed numerous

errors and improprieties requiring the suppression of the evidence obtained,

including that her breath test was not conducted in compliance with applicable

rules and regulations established by the Ohio Department of Health. (Id.).

      {¶5} On June 20 and 21, 2012, the trial court held a hearing on Dial’s

motion to suppress. (June 20-21, 2012 Tr. at 1); (Doc. No. 18). The trial court

heard the testimony of the witnesses for the plaintiff-appellee, State of Ohio—

Officers Glanemann and Brotherwood and Lieutenant Coon. (June 20-21, 2012


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Tr. at 2-62). Counsel for the State introduced State’s Exhibit D—a packet of

copies of certifications for the Intoxilyzer 8000, serial number 80-004681, and for

the solutions used to certify that machine. (Id. at 32). Lieutenant Coon identified

those certifications as ones kept within the regular course of business at the Lima

Police Department.      (Id.).   Among the certifications was an “Inspector’s

Certification Statement” (“Statement”) form of the Ohio Department of Health

completed and signed by Robert Norbeck on March 26, 2012. (Id. at 32-33, 40-

42); (State’s Ex. D).       The Statement documented a September 7, 2011

certification, in which Norbeck certified the machine using a new bottle of

solution containing ethyl alcohol approved by the Director of Health. (Id.); (Id.).

Dial’s counsel objected to State’s Exhibit D, arguing that the Statement was

testimonial, and its admission into evidence absent Dial’s ability to cross-examine

Norbeck violated Dial’s Sixth Amendment right to confront witnesses offered

against her. (June 20-21, 2012 Tr. at 33, 37-40). The trial court overruled Dial’s

counsel’s objection and admitted the document into evidence. (Id. at 33, 37-40,

51). Dial did not call any witnesses at the hearing. (Id. at 62).

       {¶6} As the trial court ordered at the hearing, Dial and the State submitted

their proposed findings of facts and conclusions of law on July 20, 2012. (Doc.

Nos. 19, 20). On July 30, 2012, the parties filed “stipulations for suppression”

containing stipulations that they had agreed to before the hearing and that Dial’s


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counsel recited on the record at the hearing. (Doc. No. 21); (June 20-21, 2012 Tr.

at 37-38). The parties stipulated that counsel for the State telephoned the Ohio

Department of Health regarding a March 16, 2012 entry of the trial court in

another criminal matter, State v. Collins, case number 11TRC08726. (Doc. No.

21).   In that entry, the trial court suppressed an Intoxilyzer 8000 breath test

because the Department’s documentation offered by the State lacked the date of

first use of the solution used to test the Intoxilyzer 8000 and proof that the solution

was refrigerated, per applicable rules and regulations. (Id.). Shortly after counsel

for the State telephoned the Department, the Department provided the State with

the Statement signed by Norbeck and admitted as part of State’s Exhibit D at the

hearing on Dial’s suppression motion. (Id.).

       {¶7} On January 4, 2013, the trial court issued its journal entry denying

Dial’s motion to suppress. (Doc. No. 22). The trial court concluded, in part, that

Dial’s breath test was administered in compliance with applicable rules and

regulations, and that the results of that test were therefore admissible into evidence

before the trier of fact at trial. (Id.).

       {¶8} On January 17, 2013, Dial filed a demand for trial by jury, but she

later waived a jury trial when she withdrew her pleas of not guilty and entered

pleas of no contest on March 6, 2013. (Doc. Nos. 23, 26, 27). That same day, the

trial court found Dial guilty of the alcohol-related offenses—violations of R.C.


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4511.19(A)(1)(a) and 4511.19(A)(1)(h)—and found that Dial had a prior OVI

offense within six years of her arrest on January 26, 2012.1 (Doc. No. 27). The

trial court sentenced Dial to 180 days in jail, with 120 days suspended on

condition that she observe all terms of probation to be imposed for a period of four

years; ordered that she pay a fine of $1,000, plus court costs; suspended her

operator’s license for four years; and, ordered her vehicle immobilized and license

plates impounded for 90 days. (Doc. Nos. 27, 28).2

         {¶9} On March 6, 2013, Dial filed her notice of appeal. (Doc. No. 32). She

raises one assignment of error for our review.

                                        Assignment of Error

         The trial court erred when it admitted the “Inspectors
         Certification Statement” [sic] over objection as the same violated
         defendant’s Sixth Amendment right to confront witnesses
         against her.

         {¶10} In her assignment of error, Dial argues that the trial court violated her

rights under the Confrontation Clause of the Sixth Amendment to the U.S.

Constitution. More specifically, Dial argues that the trial court erred and violated

her right under the Confrontation Clause to confront witnesses offered against her



1
  It appears that the marked-lanes violation, assigned case number 12TRC00602B, was dismissed at the
prosecution’s request.
2
  The trial court’s “Journal Entry of Sentencing O.V.I. Offenders” does not state under which subsection of
R.C. 4511.19 it sentenced Dial. (Doc. No. 27). Because the sentence imposed exceeds the mandatory
minimum sentence that must be imposed for either subsection, the sentence falls within the allowable range
of sentences, this issue is not raised by the parties, and this issue has no impact on the assignments of error
argued, this Court will not address this issue.

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when it admitted the Statement, which Dial argues was a testimonial statement, in

lieu of live testimony.

       {¶11} “The Confrontation Clause of the Sixth Amendment states, ‘[i]n all

criminal prosecutions, the accused shall enjoy the right * * * to be confronted with

the witnesses against him.’” State v. Diggle, 3d Dist. Auglaize No. 2-11-19, 2012-

Ohio-1583, ¶ 21, quoting the Sixth Amendment to the U.S. Constitution. “This

Court reviews de novo the question of whether a defendant’s constitutional rights

under the Confrontation Clause have been violated.” Id., citing State v. Guiterrez,

3d Dist. Hancock No. 5-10-14, 2011-Ohio-3126, ¶ 43.

       {¶12} In State v. Wolfle, we were presented with a question similar to the

one in this case: whether pre-breath-test calibration and instrument check reports

were testimonial or non-testimonial in nature. 3d Dist. Paulding No. 11-11-01,

2011-Ohio-5081, ¶ 12. We examined in Wolfle the United States Supreme Court’s

explanation of the Confrontation Clause and “testimonial” statements:

       In Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct 1354 (2004),

       the United States Supreme Court held that the Confrontation Clause

       of the Sixth Amendment bars admission of a declarant’s prior

       “testimonial” statements unless the declarant is unavailable to

       testify, and unless the defendant has had a prior opportunity for

       cross-examination. The Court further elaborated upon examples of


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       “testimonial” statements to include prior testimony at a preliminary

       hearing, before a grand jury, or at a formal trial, as well as

       statements made during police interrogation. Id., 124 S.Ct. 1354.

Wolfle at ¶ 12.

       {¶13} We also excerpted the Supreme Court’s explanation in Melendez-

Diaz v. Massachusetts that equipment-maintenance documents “may well qualify

as non-testimonial records”:

       Specifically, the Court stated, “we do not hold[,] and it is not the

       case, that anyone whose testimony may be relevant in establishing

       the chain of custody, authenticity of the sample, or accuracy of the

       testing device, must appear in person as part of the prosecution’s

       case. * * * Additionally, documents prepared in the regular course of

       equipment maintenance may well qualify as non-testimonial

       records.”

(Emphasis sic.) Wolfle at ¶ 14, quoting Melendez-Diaz v. Massachusetts, 557 U.S.

305, 311, fn. 1, 129 S.Ct. 2527 (2009).

       {¶14} We noted in Wolfle that “other Ohio appellate districts have found

that documents prepared to demonstrate that routine maintenance, such as

calibration and instrument checks, have been performed on breathalyzers are non-

testimonial.” Id. at ¶ 15, citing State v. Collins, 5th Dist. Licking No. 10-CA-16,


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2010-Ohio-5333, ¶ 32; State v. Shisler, 1st Dist. Hamilton Nos. C-050860 and C-

050861, 2006-Ohio-5265; State v. Cook, 6th Dist. Wood No. WD-04-029, 2006-

Ohio-6062. We were persuaded by the rationale of those districts, who explained

“that documents of this kind are not prepared with an eye to prosecute a specific

defendant, but rather are prepared to demonstrate compliance with administrative

rules.” Id. “Moreover, * * * the purpose behind performing these instrument

checks is to ensure the machine is producing an accurate reading, which could not

only incriminate an individual but also exonerate him.” Id.

       {¶15} Following that discussion in Wolfle, we held that pre-breath-test

calibration and instrument check reports prepared by an Ohio State Patrol trooper

and produced by the BAC DataMaster breathalyzer were non-testimonial. Id. at ¶

15-16. Because the reports were non-testimonial, their admission into evidence

absent the defendant’s ability to cross-examine the trooper did not violate the

defendant’s rights under the Confrontation Clause. Id. at ¶ 11-16. We therefore

concluded that the trial court erred when it excluded the calibration and instrument

check reports. Id. at ¶ 16.

       {¶16} Dial acknowledges Wolfle but argues that “further authority in the

way of [Bullcoming v. New Mexico] and other instructive opinions germane to this

matter have been subsequently issued.”       (Appellant’s Brief at 3).    However,




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neither Bullcoming nor any other case cited by Dial affects the law and analysis set

forth in Wolfle.

       {¶17} Bullcoming involved a New Mexico prosecution for driving while

intoxicated, in which principal evidence against the defendant was a “forensic

laboratory report certifying that [his] blood-alcohol concentration was well above

the threshold.” Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 2709

(2011). “At trial, the prosecution did not call as a witness the analyst who signed

the certification * * *.” Id. Instead, the prosecution “called another analyst who

was familiar with the laboratory’s testing procedures, but had neither participated

in nor observed the test on [the defendant’s] blood sample.” Id. The Court held

that this “surrogate testimony” violated the Confrontation Clause. Id. at 2710. In

its analysis, the Court once again elaborated on the definition of “testimonial”:

       To rank as “testimonial,” a statement must have a “primary purpose”

       of “establish[ing] or prov[ing] past events potentially relevant to

       later criminal prosecution.” Davis v. Washington, 547 U.S. 813,

       822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). See also Bryant, 562

       U.S., at ----, 131 S.Ct., at 1155. Elaborating on the purpose for

       which a “testimonial report” is created, we observed in Melendez-

       Diaz that business and public records “are generally admissible

       absent confrontation … because—having been created for the


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      administration of an entity’s affairs and not for the purpose of

      establishing or proving some fact at trial—they are not testimonial.”

      557 U.S., at ----, 129 S.Ct., at 2539-2540.

Bullcoming, 131 S.Ct. at 2714, fn. 6. The Court also explained that “[a]n analyst’s

certification prepared in connection with a criminal investigation or prosecution *

* * is ‘testimonial,’ and therefore within the compass of the Confrontation

Clause.” Id. at 2713-2714.

      {¶18} Bullcoming is distinguishable from Wolfle and this case. Whereas

Bullcoming involved a report of the defendant’s individual blood-test results,

Wolfle involved “pre-test calibration and instrument check reports” that were

prepared before the defendant was stopped and arrested for OVI, and that would

have been prepared whether or not the defendant was arrested. (Emphasis added.)

Wolfle, 2011-Ohio-5081, at ¶ 11.

      {¶19} The same is true in this case. Bullcoming is distinguishable because

the Statement documented a test that was performed on the Intoxilyzer 8000

machine, serial number 80-004681, on September 7, 2011—more than four

months before Dial’s arrest. Lieutenant Coon testified that the Statement was kept

within the regular course of business at the Lima Police Department, although he

had no knowledge of the Statement prior to the day of the suppression hearing.

(June 20-21, 2012 Tr. at 32, 44). In addition, the Program Administrator at the


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Ohio Department of Health, Office of Alcohol and Drug Testing, swore in a

notarized certification on the reverse side of the Statement that it was “a true and

accurate copy, kept in the ordinary course of business” at the Department. (State’s

Ex. D). See State v. Cook, 6th Dist. Wood No. WD-04-029, 2005-Ohio-1550, ¶

12-23 (holding that records documenting checks of a BAC DataMaster and the

qualifications of the breath-testing officer were non-testimonial, and their

admission did not violate the defendant’s rights under the Confrontation Clause;

further holding that the affidavit of the records custodian attesting that the records

were kept in the ordinary course of business, while testimonial, was not evidence

against the defendant and merely laid a foundation for the records, so its admission

did not violate the defendant’s rights under the Confrontation Clause). To use

language from Melendez-Diaz and quoted in Bullcoming, “having been created for

the administration of an entity’s affairs and not for the purpose of establishing or

proving some fact at trial,” the Statement is “not testimonial.” Bullcoming, 131

S.Ct. at 2714, fn. 6.

       {¶20} The Statement is the sort of document that is “not prepared with an

eye to prosecute a specific defendant, but rather [is] prepared to demonstrate

compliance with administrative rules.” Wolfle at ¶ 15. Indeed, the Statement

might be offered by the prosecution in any other case in which a breath test was

administered on a defendant using the Intoxilyzer 8000 machine, serial number


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80-004681. Moreover, because the Statement documents a test predating Dial’s

stop and arrest, the parties’ stipulation—that the Statement was prepared and

executed after the State charged Dial and after the State notified the Ohio

Department of Health of the trial court’s decision in the Collins case—does not

affect our conclusion. In short, the Statement documents a pre-stop, pre-arrest test

that was administrated on a particular machine, not a particular defendant.

       {¶21} We therefore hold that the Statement is not testimonial, and its

admission into evidence at the suppression hearing absent Dial’s ability to

examine Norbeck did not violate her right under the Confrontation Clause of the

Sixth Amendment to confront witnesses offered against her. The trial court did

not err by relying on the Statement in denying Dial’s motion to suppress.

       {¶22} Dial’s assignment of error is therefore overruled.

       {¶23} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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