[Cite as State v. Sisson, 2013-Ohio-1869.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
RACHEL SISSON                                :       Case No. 2012CA00169
                                             :
        Defendant-Appellant                  :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Canton Municipal
                                                     Court, Case No. 2012 TRC 03065



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    May 6, 2013



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOSEPH MARTUCCIO                                     MICHAEL A. BOSKE
Canton Law Director                                  122 Central Plaza North
                                                     Canton, OH 44702
TYRONE D. HAURITZ
Canton City Prosecutor

KATIE ERCHICK
218 Cleveland Avenue, SW
P.O. Box 24218
Canton, OH 44701
Stark County, Case No. 2012CA00169                                                     2

Farmer, J.

       {¶1}   On May 19, 2012, Ohio State Highway Patrol Sergeant Todd Belcher

stopped appellant, Rachel Sisson, and subsequently charged her with operating a

motor vehicle while impaired in violation of R.C. 4511.19 and failure to drive within

marked lanes in violation of R.C. 4511.33. Appellant was taken to the State Highway

Patrol Post whereupon Sergeant Belcher performed a breathalyzer test on appellant

utilizing a BAC DataMaster instrument. Sergeant Belcher holds a permit to operate the

BAC DataMaster as well as an access card to operate the Intoxilyzer 8000 instrument.

       {¶2}   On June 28, 2012, appellant filed a motion to suppress the results of the

breath test, claiming Sergeant Belcher was not permitted to conduct the test using the

BAC DataMaster instrument. A hearing was held on July 31, 2012. By judgment entry

filed August 22, 2012, the trial court denied the motion.

       {¶3}   On August 29, 2012, appellant pled no contest to the charges.          By

judgment entry filed same date, the trial court found appellant guilty and sentenced her

to one hundred eighty days in jail, all but seventy-two hours suspended on condition of

good behavior.

       {¶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 IN NOT SUPPRESSING THE RESULTS

OF THE APPELLANT'S BREATH TEST."
Stark County, Case No. 2012CA00169                                                            3


                                               I

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

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 485 (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., 116 S.Ct. 1657, 1663 (1996), "…as a general matter determinations

of reasonable suspicion and probable cause should be reviewed de novo on appeal."

       {¶8}    Appellant argues the results of her breath test should be suppressed

because Sergeant Belcher, who had an access card for the Intoxilyzer 8000 instrument,
Stark County, Case No. 2012CA00169                                                     4


is prohibited from operating a BAC DataMaster instrument regardless of his certification

on the machine. In support, appellant cites the following language from Ohio Adm.Code

3701-53-09(D):



              Individuals desiring to function as operators using instruments listed

       under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code

       shall apply to the director of health for operator access cards on forms

       prescribed and provided by the director of health. The director of health

       shall issue operator access cards to perform tests to determine the

       amount of alcohol in a person's breath to individuals who qualify under the

       applicable provisions of rule 3701-53-07 of the Administrative Code.

       Individuals holding operator access cards issued under this rule shall use

       only those evidential breath testing instruments for which they have been

       issued an operator access card.



       {¶9}   It is undisputed that Sergeant Belcher held an access card for the

Intoxilyzer 8000, as well as a valid permit to operate the BAC DataMaster instrument.

T. at 8-10.

       {¶10} We have previously addressed this issue in State v. Nethers, 5th Dist. No.

12-CA-30, 2012-Ohio-5198, ¶ 13-14:



              Appellant further asserts the Ohio Administrative Code Section

       3701-53-09(D) prohibited Officer Martin, who administered the test and
Stark County, Case No. 2012CA00169                                                   5


     has an operator access card for the Intoxilyzer 8000, from using the BAC

     DataMaster test. Appellant maintains pursuant to the code, the officer

     could only perform those tests for which he holds an individual permit.

     Only one breath testing instrument requires an operator access card, the

     Intoxilyzer 8000.    Officer Martin had a Senior Operator's Permit to

     administer chemical breath tests using the BAC DataMaster, and had also

     been issued an operator access card for the Intoxilyzer 8000.

           In State v. Hudepohl, 2011–Ohio–6917, the court considered the

     issue raised herein, determining the argument led to absurd results, we

     agree. Therein, a police officer held both a senior operator permit for one

     type of blood-alcohol breath testing instrument and an operator access

     card for a second type of breath testing instrument. The court held merely

     holding an operator access card for a second type of instrument did not

     prohibit the officer from operating the first type of instrument pursuant to

     his senior operator permit.



     {¶11} We find our opinion in Nethers to be applicable and controlling sub judice.

     {¶12} The sole assignment of error is denied.
Stark County, Case No. 2012CA00169                                           6


      {¶14} The judgment of the Canton Municipal Court of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                       s / Sheila G. Farmer______________



                                       _s/ William B. Hoffman_____________



                                       _s / John W. Wise_________________

                                                    JUDGES




SGF/sg 425
[Cite as State v. Sisson, 2013-Ohio-1869.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
RACHEL SISSON                                  :
                                               :
        Defendant-Appellant                    :        CASE NO. 2012CA00169




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court of Stark County, Ohio is affirmed. Costs to

appellant.




                                               s / Sheila G. Farmer______________



                                               _s/ William B. Hoffman_____________



                                               _s / John W. Wise_________________

                                                            JUDGES
