         [Cite as State v. Wulsin, 2013-Ohio-4777.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-120876
                                                          TRIAL NO. 12TRC-3123
        Plaintiff-Appellant,                          :

  vs.                                                 :      O P I N I O N.

SUSAN WULSIN,                                         :

    Defendant-Appellee.                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 30, 2013


John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and David Sturkey,
Assistant City Prosecutor, for Plaintiff-Appellant,

Robert Healey, for Defendant-Appellee.




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



FISCHER ,   Judge.

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

judgment suppressing the breath test of defendant-appellee Susan Wulsin.         Based

upon this court’s opinion in State v. McMahon, 1st Dist. Hamilton No. C-120728,

2013-Ohio-2557, we reverse the trial court’s judgment granting Wulsin’s motion to

suppress.

            {¶2}     On January 18, 2012, Wulsin was charged with speeding in

violation of R.C. 4511.21(C), operating a vehicle under the influence of alcohol in

violation of R.C. 4511.19(A)(1)(a), and operating a vehicle with a prohibited

concentration of breath alcohol in violation of R.C. 4511.19(A)(1)(d). She submitted

to a breath-alcohol test on the Intoxilyzer 8000. Her breath-alcohol content was .152

grams by weight of alcohol per 210 liters of her breath. She subsequently filed a

motion to suppress challenging a number of issues including the admissibility of her

breath-alcohol test results.

            {¶3}     At a two-day evidentiary hearing on the motion, Mary Martin, the

program administrator for alcohol and drug testing at the Ohio Department of

Health (“ODH”) testified that the permit the ODH issues for the Intoxilyzer 8000 is a

plastic access card and that the card is necessary to operate the machine. To obtain

an access card, an individual must apply on the prescribed ODH form and satisfy the

three qualifications enumerated for an operator’s permit under Ohio Adm.Code

3701-53-07(E): (1) have a high school diploma or a General Education Development

Degree; (2) be a sworn law enforcement officer or a corrections officer; and (3) pass a

course that shows the individual is able to correctly operate the instrument for which

he or she is seeking the permit. Ohio Adm.Code 3701-53-09(D). In order to retain

the access card, an individual must take a test once every calendar year or have a



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                    OHIO FIRST DISTRICT COURT OF APPEALS



successful valid subject test once every year. Ohio Adm.Code 3701-53-08(D). If an

individual does not comply with these requirements, the ODH can then deactivate an

individual’s operator access card. Ohio Adm.Code 3701-53-09(E) and 3701-53-

10(C)(2). Martin testified that Trooper Joe Westhoven, the Ohio Highway Patrolman

who had administered Wulsin’s breath test, had met all the requirements to obtain

an operator access card for the Intoxilyzer 8000, and that his access card was still

active.

          {¶4}   Trooper Westhoven, likewise, testified that he had completed a

one-day Intoxilyzer 8000 training course at the Clermont County Sheriff’s Office and

had then taken a proficiency test. ODH had then issued him an Intoxilyzer 8000

access card, which he had used to administer Wulsin’s breath test.

          {¶5}   At the conclusion of the hearing, Wulsin’s counsel stated that he

was narrowing the scope of Wulsin’s motion to suppress to issues surrounding the

Intoxilyzer 8000. Counsel argued, among other things, that Officer Westhoven was

not authorized to perform Wulsin’s breath test because the state had failed to comply

with R.C. 3701.143 and the Ohio Administrative Code to establish sufficient

qualifications for issuing an operator access card. The trial court agreed, granting

Wulsin’s motion to suppress on this basis.

          {¶6}   The trial court held that because Ohio Adm.Code Section 3701-53-

07(E) referred only to the requirements for obtaining a senior operator’s permit or

an operator’s permit, and did not include the phrase “access card,” that the

Administrative Code was silent with respect to the ODH requirements for the

issuance of an operator’s access card for the Intoxilyzer 8000. As a result, the trial

court held that Officer Westhoven’s access card for the Intoxilyzer 8000 was invalid,

and that the breath test he had administered to Wulsin was inadmissible.



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       {¶7}    In a single assignment of error, the city argues that the trial court

erred in suppressing the results of Wulsin’s breath test on the basis that the Ohio

Department of Health had failed to promulgate the necessary requirements for an

operator of the Intoxilyzer 8000 to be issued an access card. We agree.

       {¶8}    In McMahon, 2013-Ohio-2557, at ¶ 11-14, we reversed the trial court’s

judgment, suppressing a breath test result on this same basis. In McMahon, Martin

had, likewise testified that it was the ODH’s position that the access card was the

type of permit issued to an operator of the Intoxilyzer 8000 machine. Id. at ¶ 11. We

held that the ODH’s “position that the access card, which is referenced in Ohio

Adm.Code 3701-53-09(D), is the type of permit that is issued to an operator of an

Intoxilyzer 8000 under Ohio Adm.Code 3701-53-07(E) comports with R.C. 3701.143,

which authorizes the director of health to issue permits to qualified persons, but does

not reference the issuance of access cards.” Id. at ¶ 13.

       {¶9}    We further held that when the relevant administrative code

provisions were read together, they supported the department of health's

interpretation. Id. at ¶ 14. We looked specifically to Ohio Adm.Code Sections 3701-

53-09 and 3701-53-07. Id. We noted that under Ohio Adm.Code 3701-53-09(D),

“individuals qualified to use the Intoxilyzer 8000 machine are referred to as

operators, and that the provision provided such operators shall be issued access

cards to perform breath tests.” Id. We further acknowledged that “Ohio Adm.Code

3701-53-07 provides qualifications for the issuance of either operator permits or

senior operator permits; it categorizes the issuance of permits into these two groups,

rather than by the type of machine being operated.” Id. We stated that “because

users of the Intoxilyzer 8000 machine are operators, reason dictates that they would

be issued, if the required qualifications are met, operator permits under Ohio



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Adm.Code 3701-53-07(E).” Id. We, therefore, concluded that “it [wa]s a reasonable

interpretation of these provisions that the access card referenced in Ohio Adm.Code

3701-53-09(D) is the type of permit issued to an operator of an Intoxilyzer 8000

machine under Ohio Adm.Code 3701-53-07(E).” Id.

       {¶10}   Given our decision in McMahon, we sustain the city’s sole assignment

of error, reverse the trial court’s judgment, and remand this cause for further

proceedings in the trial court in accordance with this opinion and the law.


                                               Judgment reversed and cause remanded.

DINKELACKER, P.J., and DEWINE, J., concur.


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




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