[Cite as State v. Fetter, 2013-Ohio-3328.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :
                                              :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :       Hon. Patricia A. Delaney, J.
                                              :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
CATHERINE FETTER                              :       Case No. 12-CA-94
                                              :
                                              :
        Defendant - Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                              Criminal Appeal from the Licking
                                                      County Municipal Court, Case N. 12
                                                      TRC 01945




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     July 29, 2013




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

TRICIA M. MOORE                                       ROBERT E. CALESARIC
Assistant Law Director                                35 South Park Place, Suite 150
40 W. Main Street                                     Newark, OH 43055
Newark, OH 43055
Licking County, Case No. 12-CA-94                                                       2



Baldwin, J.

      {¶1}     Appellant Catherine Fetter appeals a judgment of the Licking County

Municipal Court convicting her of operating a motor vehicle with a prohibited breath-

alcohol content (R.C. 4511.19(A)(1)(d)) and driving outside marked lanes (R.C.

4511.33). Appellee is the State of Ohio.

                             STATEMENT OF FACTS AND CASE

      {¶2}     On February 27, 2012, Trooper Jermaine Thaxton was on routine patrol,

working the night shift in Newark, Ohio. He observed a vehicle operated by appellant

travel outside her marked lane of travel at 2:49 a.m.      After stopping the vehicle and

approaching the driver’s side of the car, Tpr. Thaxton noticed an odor of alcohol about

appellant.    He also noted that her eyes were glassy and bloodshot. Tpr. Thaxton

removed appellant from the car and from proximity to her passenger, and he then

specifically noted that appellant had an odor of alcohol on her breath.

      {¶3}     After administering field sobriety tests, appellant was arrested for

operating a motor vehicle under the influence of alcohol and taken to the Granville post

of the Ohio State Highway Patrol. She submitted to a breath test and the result was

.094 grams of alcohol per 210 liters of breath, above the legal limit.

      {¶4}     Appellant was charged with operating a motor vehicle under the influence

of alcohol in violation of R.C. 4511.19(A)(1)(a) and (d), and driving outside marked lines

in violation of R.C. 4511.33. Appellant moved to suppress the results of the breath

alcohol test. The motion to suppress was overruled.

      {¶5}     The case proceeded to jury trial on November 8, 2012. Prior to the start of

trial, the State dismissed the charge of a violation of R.C. 4511.19(A)(1)(a). The jury
Licking County, Case No. 12-CA-94                                                     3


found appellant guilty of operating a motor vehicle under the influence of alcohol in

violation of R.C. 4511.19(A)(1)(d). Appellant entered a plea of no contest to driving

outside marked lanes.       She was fined $375.00, and sentenced to thirty days

incarceration with 27 days suspended and placed on probation for one year for

operating a motor vehicle under the influence of alcohol. She was fined $15.00 for the

marked lanes violation. She assigns two errors on appeal:

     {¶6}     “I.    ADMISSION OF MS. FETTER’S BREATH TEST RESULT AT TRIAL

VIOLATED HER SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES

AGAINST HER.

     {¶7}     “II.   THE TRIAL COURT COMMITTED ERROR BY FINDING THAT THE

STATE       ESTABLISHED      SUBSTANTIAL           COMPLIANCE    WITH     THE     OHIO

DEPARTMENT OF HEALTH ADMINISTRATIVE REGULATIONS AND R.C. 4511.19

ET AL.”

                                              I.

     {¶8}     Appellant argues in her first assignment of error that admission of her

breath test result at trial violated her sixth amendment right to confront the witnesses

against her. She makes three arguments in this assignment of error: she was denied

her right of confrontation because Tpr. Thaxton had no personal knowledge of the inner

workings of the BAC machine nor was he an expert in the operation of the machine, the

court limited her cross-examination of Tpr. Thaxton on the inner workings of the

machine, and she was unable to introduce evidence at trial of the pre and post

calibration checks of the machine.
Licking County, Case No. 12-CA-94                                                         4


      {¶9}    Appellant’s claimed errors all relate to her attempts to attack the general

reliability of the BAC machine, rather than her specific test results.

      {¶10}   The admissibility of breath-test results turns on the test's substantial

compliance with ODH regulations, not compliance with the Constitution.              City of

Columbus v. Aleshire, 187 Ohio App. 3d, 660, 993 N.E.2d 317, 2010-Ohio-2773,

paragraph 14, citing State v. French, 72 Ohio St. 3d 446, 451, 650 N.E.2d 887 (1995).

At trial, the accused may not make a general attack on the reliability and validity of the

breath testing instrument. Id. at paragraph 13, citing State v. Vega, 12 Ohio St. 3d 185,

190, 465 N.E.2d 1303 (1984). However, he may challenge the accuracy of his specific

test result. Columbus v. Day, 24 Ohio App.3d 173, 174, 24 OBR 263, 493 N.E.2d 1002

(1985). Thus, the accused may attempt to show that something went wrong with his test

and consequently, the result was at variance with what the approved testing procedure

should have produced. Id.

      {¶11}   Appellant claims error in the court precluding her from cross-examining

Tpr. Thaxton on the inner workings of the BAC machine and excluding her evidence of

calibration testing on the machine. These attacks are to the general reliability and

validity of the breath testing instrument, and not to her specific test result. Appellant is

not permitted to make a general attack on the reliability of the breath testing instrument,

and the court therefore did not err in limiting cross-examination and presentation of

evidence to only specific attacks on appellant’s test result.

      {¶12}   The first assignment of error is overruled.
Licking County, Case No. 12-CA-94                                                         5


                                                II.

      {¶13}   Appellant argues that the court erred in failing to suppress the results of

the BAC test because the affidavit of the officer who performed the pre and post

calibration checks is inaccurate in its dates, and therefore cannot serve as proof of

substantial compliance with Ohio Department of Health Regulations.

      {¶14}   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, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d

1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(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, 619 N.E.2d 1141

(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, 641 N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d

906 (1993); Guysinger, supra.
Licking County, Case No. 12-CA-94                                                           6


      {¶15}   R.C. 4511.19(D) requires that the analysis of bodily substances be

conducted in accordance with methods approved by the Ohio Director of Health, as set

forth in the Ohio Administrative Code regulations. The Ohio Supreme Court has held

that absent a showing of prejudice by the defendant, rigid compliance with ODH

regulations is not required, as such compliance is not always humanly or realistically

possible. State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986); State v.

Raleigh, 5th Dist. No.2007-CA-31, 2007-Ohio-5515, at ¶ 40. Rather, if the state shows

substantial compliance with the regulations, alcohol tests results are admissible in a

prosecution under R.C. 4511.19. Plummer, supra at syllabus.

      {¶16}   Appellant argues that the dates in the affidavits concerning the pre and

post calibration tests were clearly inaccurate, and no testimony was presented to

correct the error in the dates. Regarding the pre-calibration check, the instrument check

form states that the test date was February 27, 2012, the date of the prior check was

February 20, 2012, the date of first use was January 1, 2012, the date to discard was

April 2, 2012, and the expiration date was August 23, 2012. The addendum to this form

is an affidavit of Tpr. Eitel, who performed the calibration check. The affidavit states,

“Specifically, I used the check solution indicated on this form, which was within three

months of its date of first use, to wit: 01-02-12, within one year of its manufacture, to-wit:

04-02-12, and before any manufacturer’s expiration date, to-wit: 08-23-12.”

      {¶17}   Similarly, the form from the March 5, 2012, calibration check states that

the date of the prior instrument check was February 27, 2012, the date of first use was

March 5, 2012, the date to discard was June 5, 2012, and the expiration date was

August 23, 2012. The addendum is an affidavit of Tpr. Epler who performed the check,
Licking County, Case No. 12-CA-94                                                           7


stating, “Specifically, I used the check solution indicated on this form, which was within

three months of its date of first use, to wit: 3-5-12, within one year of its manufacture, to-

wit: 6-5-12, and before any manufacturer’s expiration date, to-wit: 08-23-12.”

      {¶18}   While appellant argues that the dates on the form must be inaccurate

because the date of manufacture as stated in the affidavit is after the date of the

calibration test, by reading the test check form and the affidavits they are attached to

together, it is apparent that the officers interpreted the language “within one year of its

manufacture, to-wit” to refer to a date one year after the manufacture date, not the date

of manufacture. While the wording of the affidavit is awkward, the affidavits coupled

with the check test forms are sufficient to establish substantial compliance with

Department of Health regulations.

      {¶19}   The second assignment of error is overruled.
Licking County, Case No. 12-CA-94                                               8


     {¶20}   The judgment of the Licking County Municipal Court is affirmed. Costs

assessed to appellant.


By: Baldwin, J.

Hoffman, P. J. and

Delaney, J. concur.




                                     HON. CRAIG R. BALDWIN



                                     HON. WILLIAM B. HOFFMAN



                                     HON. PATRICIA A. DELANEY




CRB/rad
[Cite as State v. Fetter, 2013-Ohio-3328.]


                    IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :
                                                :
        Plaintiff - Appellee                    :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
CATHERINE FETTER                                :
                                                :
        Defendant - Appellant                   :       CASE NO. 12-CA-94


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

judgment of the Licking County Municipal Court, Ohio is affirmed. Costs assessed to

appellant.




                                             HON. CRAIG R. BALDWIN



                                             HON. WILLIAM B. HOFFMAN



                                             HON. PATRICIA A. DELANEY
