[Cite as State v. Hawkins, 2020-Ohio-3266.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 19 CA 43
JENNIFER HAWKINS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Municipal Court,
                                              Case No. 19 TRC 1284


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        June 8, 2020



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JOSEPH M. SABO                                ANDREW T. SANDERSON
CITY of LANCASTER LAW DIRECTOR                BURKETT & SANDERSON, INC.
MITCH HARDEN                                  738 East Main Street
ASSISTANT PROSECUTOR                          Lancaster, Ohio 43130
136 West Main Street, P.O. Box 1008
Lancaster, Ohio 43130
Fairfield County, Case No. 19 CA 43                                                      2


Wise, J.

       {¶1}   Appellant Jennifer Hawkins appeals her conviction on one count of

Operating a Motor Vehicle While under the Influence of Alcohol, entered in the Fairfield

County Municipal Court following a plea of no contest.

       {¶2}   Appellee is State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   On February 17, 2019, in Fairfield County, Ohio, Trooper Angle with the

Ohio State Highway Patrol conducted a traffic stop on a vehicle for failing to use its turn

signal prior to turning, as well as for having expired license plate tags. (Supp. T. at 8).

Upon making contact with the driver of the vehicle, Appellant Jennifer Hawkins, Trooper

Angle observed Appellant to have glassy and bloodshot eyes, slurred speech, and the

odor of an alcoholic beverage. Id. Appellant also admitted to consuming alcohol. Id.

       {¶4}   Based on his initial observations, Trooper Angle had Appellant exit the

vehicle to perform standardized field sobriety tests. Id. Due to Appellant’s poor

performance on these field sobriety tests, as well as his other observations of impairment,

Trooper Angle placed Appellant under arrest for operating a motor vehicle while under

the influence of alcohol (hereinafter "OVI"). Id.

       {¶5}   Trooper Angle then read Appellant the BMV 2255 Form, and, after being

explained the consequences for taking or refusing a chemical test, Appellant submitted

to a breath test. Id. After Appellant’s first breath test resulted in an invalid sample,

Appellant submitted to a second test, which resulted in a blood alcohol content

(hereinafter "BAC") of .132 grams of weight of alcohol per 210 liters of breath. Id.
Fairfield County, Case No. 19 CA 43                                                         3


       {¶6}    Appellant was ultimately charged with OVI under R.C. § 4511.19(A)(1)(a)

and R.C. § 4511.19(A)(1)(d), as well as a turn signal violation under R.C. § 4511.39.

       {¶7}    On February 26, 2019, Appellant appeared before the Fairfield County

Municipal Court, where she entered a plea of Not Guilty to the charges of OVI under

§4511.19(A)(1)(a), OVI Breath under §4511.19(A)(1)(d), and a turn signal violation under

§4511.39.

       {¶8}    On August 6, 2019, Appellant filed a Motion in Limine and Motion to

Suppress Evidence, arguing that her breath sample was not collected in accordance with

the applicable rules and regulations. Specifically, Appellant argued that law enforcement

did not substantially comply with approved methods when, after her first breath test

produced an invalid sample, an additional twenty-minute observation period was not

performed prior to conducting the second breath test. Id.

       {¶9}    On August 20, 2019, the State of Ohio filed its Reply to Defendant's

Supplemental Memorandum.

       {¶10} Appellant and the State waived an oral hearing on the matter and asked the

trial court to issue its ruling based upon the briefs submitted by the parties, as well as the

following stipulated facts :

               1. On or about, February 17, 2019, at 2:36 AM Jennifer Hawkins,

       the defendant herein, did operate a motor vehicle in Fairfield County,

       Ohio.

               2. That officers of the Ohio Highway Patrol observed Ms. Hawkins

       commit turn signal violations while operating the vehicle.
Fairfield County, Case No. 19 CA 43                                                     4


             3. That the officers were operating a marked police cruiser, were duly

      appointed members of law enforcement with all the necessary training and

      experience to hold their positions and were wearing the uniform on the day

      when they encountered Ms. Hawkins.

             4. That the officers properly effectuated a traffic stop of Ms. Hawkins

      and, in the course of the same, developed probable cause to believe that

      she was operating a motor vehicle under the influence of alcohol.

             5. As a result, Ms. Hawkins was placed under arrest, transported

      from the scene and asked to submit a sample of her breath for chemical

      testing.

             6. That the attached exhibit A shows the results of the chemical

      testing of Ms. Hawkins related to this case.

             7. All of this behavior occurred in Fairfield County, Ohio.

      {¶11} By Judgment Entry filed August 22, 2019, the trial court denied Appellant’s

motion to suppress.

      {¶12} On September 5, 2019, Appellant entered a plea of No Contest to the

charges.

      {¶13} Appellant now appeals to this Court, assigning the following error for review:

                                  ASSIGNMENT OF ERROR

      {¶14} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN ALLOWING

EVIDENCE OF THE DEFENDANT-APPELLANT’S PURPORTED BREATH ALCOHOL

CONTENT TO BE DEEMED ADMISSIBLE HEREIN.”
Fairfield County, Case No. 19 CA 43                                                        5


                                             I.

       {¶15} In her sole assignment of error, Appellant argues the trial court erred in

denying her motion to suppress. We disagree.

                                       Standard of Review

       {¶16} 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 finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, 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 the given case. State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d

1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906; State v.

Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726.

       {¶17} In the instant appeal, appellant's challenge of the trial court's ruling on her

motion to suppress is based on the third method. Accordingly, this Court must

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in this case.

       {¶18} Appellant's argument herein is predicated upon the BAC Verified Test

Report Form, issued by the Department of Health, which requires that a subject be

observed for twenty (20) minutes, prior to administration of the test, to prevent oral intake

of any materiel.
Fairfield County, Case No. 19 CA 43                                                        6


       {¶19} The sole purpose of the twenty minute observation period is to prevent the

oral intake of any material. Bolivar v. Dick, 76 Ohio St.3d 216, 218, 1996-Ohio-409; State

v. Steele (1977), 52 Ohio St.2d 187, 370 N.E.2d 740.

       {¶20} Here, the initial testing of Appellant’s BAC returned an “invalid sample”

message.

       {¶21} The BAC Datamaster Basic Operation Guide defines “invalid sample” as:

               Invalid Sample. This message is seen only during a subject or

       simulating test if conducted during the subject test mode. The instrument

       has detected a negative going value during the test that is inconsistent with

       the expected test progression. This can be caused by a subject blowing too

       hard as saliva droplets can be forced through the mouthpiece and into the

       sample chamber causing a somewhat unstable reading. It can also be

       caused by the presence of mouth alcohol. See Section entitled ‘Datamaster

       Sampling Systems.’ usually a retest of the subject after a short period will

       result in a valid test.

       {¶22} This Court has previously considered and rejected a suggestion that the

observation period restarts after an invalid sample. State v. Reiger, 5th Dist. Fairfield No.

02CA30, 2002-Ohio-6673; See also State v. Hagans, 5th Dist. Knox No. 02CA38, 2003-

Ohio-2703.

       {¶23} In Reiger, supra, this Court held that an officer's failure to wait 20 minutes

before administering a second breath analysis test to a defendant who was arrested for

driving under the influence (DUI) did not invalidate second test's results, although both

Bureau of Alcohol and Drug Testing memorandum and test device guide recommended
Fairfield County, Case No. 19 CA 43                                                      7


20-minute waiting period; state administrative code did not require a waiting period, and

first test's failure was caused by defendant's failure to blow into the machine rather than

by mouth alcohol. R.C. §4511.19(A)(1),(6).

       {¶24} This Court noted that “the above language found in the memorandum and

operating guide is not found in the regulations promulgated by the Ohio Director of Health

and set forth in the Ohio Administrative Code relative to the use of the BAC Datamaster.

In the event of possible conflict or ambiguity between them, we believe the regulations as

embodied in the Ohio Administrative Code control. Though there may not have been strict

compliance with the memorandum or guide, we find there was strict compliance with the

regulations.” Id.

       {¶25} By so finding, we note our decision is in accord with our colleagues from

the Twelfth District in State v. Bosier (Jul. 24, 2000), Clinton App. No. CA99-11-036,

unreported; the Fourth District in State v. Matlack (Nov. 2, 1995), Athens County App. No.

95CA1658, unreported (1995WL646355); the Sixth District in State v. Gigliotti (Dec. 22,

2000), Erie County App. No. E-99-081, unreported (2000WL1867265); and the Eighth

District in City of Rocky River v. Papandreas (Mar. 23, 2000), 2000WL 301080.

       {¶26} Appellee introduced nothing to suggest that she did, in fact, ingest some

material during the 20 minute period. A mere assertion that ingestion during the 20 minute

period was hypothetically possible, without more, did not render the test results

inadmissible. State v. Raleigh, Licking App. No. 2007–CA–31, 2007-Ohio-5515, 2007 WL

2994237, at ¶ 51.
Fairfield County, Case No. 19 CA 43                                                  8


       {¶27} Appellant’s sole assignment of error is overruled.

       {¶28} Accordingly the judgment of the Municipal Court of Fairfield County, Ohio,

is affirmed.


By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.




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