[Cite as State v. Hicks, 2017-Ohio-7014.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                         C.A. No.     16AP0019

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JESSICA A. HICKS                                      WAYNE COUNTY MUNICIPAL COURT
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   2015 TR-C 007531

                                  DECISION AND JOURNAL ENTRY

Dated: July 31, 2017



        HENSAL, Presiding Judge.

        {¶1}     Jessica Hicks appeals the denial of her motion to suppress in the Wayne County

Municipal Court. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     Sergeant Brad Bishop of the state highway patrol stopped Ms. Hicks for speeding.

When he approached her vehicle, he noticed that Ms. Hicks had glassy and bloodshot eyes. He

also detected the odor of alcohol on her breath. Sergeant Bishop asked Ms. Hicks to step out of

her vehicle so that he could determine whether the odor was coming from her or her husband,

who was in the passenger seat. After she got out of the vehicle, Ms. Hicks admitted drinking an

alcoholic beverage about an hour earlier. Sergeant Bishop, smelling alcohol on her breath, had

her perform field sobriety tests. He noticed four out of six clues during the horizontal gaze

nystagmus test and three out of eight clues during the walk and turn test. Based on all of his

observations, Sergeant Bishop arrested Ms. Hicks for operating under the influence. After
                                                2


transporting her to his post, he used a Data Master machine to test the alcohol content of her

breath, which determined that it was 0.08%.

       {¶3}    Following the test, Sergeant Bishop charged Ms. Hicks with speeding and two

counts of operating under the influence. Ms. Hicks moved to suppress the evidence against her,

arguing Sergeant Bishop did not have probable cause to arrest her and that the Data Master

machine was not working properly. Following a hearing, the municipal court denied her motion.

Ms. Hicks subsequently pleaded no contest to the charges. The court found her guilty of them

and, following merger of the operating under the influence counts, placed her on community

control. Ms. Hicks has appealed the denial of her motion to suppress, assigning two errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
       SUPPRESS THE RESULTS OF HER BAC DATAMASTER BREATH TEST.

       {¶4}    Ms. Hicks argues that the trial court incorrectly denied her motion to suppress. A

motion to suppress presents a mixed question of law and fact:

       When considering a motion to suppress, the trial court assumes the role of trier of
       fact and is therefore in the best position to resolve factual questions and evaluate
       the credibility of witnesses. Consequently, an appellate court must accept the trial
       court’s findings of fact if they are supported by competent, credible evidence.
       Accepting these facts as true, the appellate court must then independently
       determine, without deference to the conclusion of the trial court, whether the facts
       satisfy the applicable legal standard.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶5}    Ms. Hicks argues that the trial court should have excluded the results of the Data

Master test because it was not functioning properly at the time of her test. The Ohio Supreme

Court has held that “[t]he admissibility of test results to establish alcoholic concentration under

R.C. 4511.19 turns on substantial compliance with [Ohio Department of Health] regulations.”
                                                3


City of Defiance v. Kretz, 60 Ohio St.3d 1, 4 (1991); see R.C. 4511.19(D). It has “applied a

burden-shifting procedure to govern the admissibility of alcohol-test results.” Burnside at ¶ 24.

       The defendant must first challenge the validity of the alcohol test by way of a
       pretrial motion to suppress * * *. After a defendant challenges the validity of test
       results in a pretrial motion, the state has the burden to show that the test was
       administered in substantial compliance with the regulations prescribed by the
       Director of Health. Once the state has satisfied this burden and created a
       presumption of admissibility, the burden then shifts to the defendant to rebut that
       presumption by demonstrating that he was prejudiced by anything less than strict
       compliance. * * * Hence, evidence of prejudice is relevant only after the state
       demonstrates substantial compliance with the applicable regulation.

Id.

       {¶6}    Ms. Hicks argues that the State failed to comply with Ohio Administrative Code

(OAC) 3701-53-04(A), which provides:

       A senior operator shall perform an instrument check on approved evidential
       breath testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule
       3701-53-02 no less frequently than once every seven days in accordance with the
       appropriate instrument checklist for the instrument being used. The instrument
       check may be performed anytime up to one hundred and ninety-two hours after
       the last instrument check.

       (1) The instrument shall be checked to detect radio frequency interference (RFI)
       using a hand-held radio normally used by the law enforcement agency performing
       the instrument check. The RFI detector check is valid when the evidential breath
       testing instrument detects RFI or aborts a subject test. If the RFI detector check is
       not valid, the instrument shall not be used until the instrument is serviced.

       (2) An instrument shall be checked using a solution containing ethyl alcohol
       approved by the director of health. An instrument check result is valid when the
       result of the instrument check is at or within five one-thousandths ( 0.005 ) grams
       per two hundred ten liters of the target value for that approved solution. An
       instrument check result which is outside the range specified in this paragraph shall
       be confirmed by the senior operator using another bottle of approved solution. If
       this instrument check result is also out of range, the instrument shall not be used
       until the instrument is serviced or repaired.
                                                 4


According to Ms. Hicks, the evidence that the State submitted at the hearing on her motion to

suppress did not establish that it met its burden of demonstrating substantial compliance with that

provision.

       {¶7}    Trooper James Walton testified that he calibrated the Data Master machine six

days before Sergeant Bishop administered Ms. Hicks’s test, following the appropriate checklist.

He testified that after he inputted the information required for the test, the machine did an

internal check, and then proceeded to the stage where he was required to check for radio

interference. He used a radio to produce interference, and the machine aborted the test, as it

should have. He then started from the beginning, preparing to simulate a real test with a solution

provided by the Ohio Department of Health. The machine, however, detected interference, so it

aborted the test again. Trooper Walton testified that he started the whole procedure over again.

After running the radio interference check again, he was able test the solution, which produced a

result within the permitted margin of error. He, therefore, considered the machine properly

calibrated.

       {¶8}    This Court has recognized that “[t]he purpose of the seven-day calibration

requirement is to ensure that the accuracy of the particular breath analysis machine has been pre-

tested within seven days of the test given to the accused.” State v. Hostettler, 9th Dist. Wayne

No. 2308, 1988 WL 21282, *1 (Feb. 17, 1988). “Calibration checks are the truest measure of

accuracy of a particular intoxilyzer at a particular time * * * and as long as the proper calibration

of the intoxilyzer machine occurs, the test results are admissible in evidence.” Id. The evidence

presented by the State at the suppression hearing demonstrated that Trooper Walton fully

complied with OAC 3701-53-04(A) when he calibrated the Data Master machine six days before
                                                   5


Ms. Hicks’s test.     The State, therefore, satisfied its burden under Burnside, creating a

presumption of admissibility of the test result.

       {¶9}    Ms. Hicks argues that she rebutted the presumption of admissibility because the

State was unable to properly calibrate the Data Master machine the day after her test. Trooper

Justin Ross testified that he attempted to calibrate the machine the day after Ms. Hicks’s test. He

began with the radio interference test, and the machine properly detected it. When he attempted

to move onto the solution test, however, the machine detected interference similar to the first

time Trooper Walton had attempted to calibrate it the previous week. Unlike Trooper Walton,

Trooper Ross did not start the process over. Knowing about Trooper Walton’s experience the

previous week, he stopped the testing procedure and asked his supervisor what he should do.

According to Trooper Ross, his supervisor told him to take the machine out of service, so he

ended up not doing any further tests on it.

       {¶10} This Court has held that the State’s failure to provide evidence of a compliant

calibration test subsequent to an accused’s breath alcohol test does not undermine the

admissibility of the accused’s test. State v. Stecion, 9th Dist. Summit No. 20626, 2002 WL

121201, *4 (Jan. 30, 2002); State v. Wymer, 9th Dist. Wayne No. 1958, 1985 WL 10720, *1

(Apr. 24, 1985); State v. Madden, 9th Dist. Summit No. 11396, 1984 WL 4806, *1 (Mar. 21,

1984). Ms. Hicks argues that this case is distinguishable, however, because Trooper Ross’s

difficulties in calibrating the Data Master machine subsequent to her test demonstrate that it was

not functioning correctly.

       {¶11} Trooper Ross testified that the fact that the Data Master detected interference does

not mean it was malfunctioning. He testified that, according to the machine’s operation guide,

the interference result means that the machine detected a foreign substance. The trial court found
                                                6


that the fact that the Data Master aborted some tests based on interference, therefore, was part of

its normal operation and did not indicate a malfunction. The court’s finding is supported by

competent credible evidence.

       {¶12} In light of the trial court’s finding that the Data Master machine did not

malfunction before, during, or after the administration of Ms. Hicks’s test, we conclude that the

trial court correctly determined that Ms. Hicks’s test was admissible, despite the fact that the

State failed to provide evidence of a successful calibration test subsequent to her test. See

Stecion at *4 (concluding that breathalyzer test was admissible because it was conducted within

192 hours of pre-test calibration). Upon review of the record, we conclude that Ms. Hicks has

not established that the State did not strictly comply with OAC 3701-53-04(A) or that she was

prejudiced by anything less than strict compliance with that provision.         Ms. Hicks’s first

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
       SUPPRESS ON THE ISSUE OF PROBABLE CAUSE FOR ARREST.

       {¶13} Ms. Hicks also argues that Sergeant Bishop did not have probable cause to arrest

her for operating under the influence. To determine whether a police officer had probable cause

to arrest an individual for operating under the influence, we consider whether, under the totality

of the facts and circumstances surrounding the arrest at the moment of arrest, the officer “had

sufficient information, derived from a reasonably trustworthy source of facts and circumstances,

sufficient to cause a prudent person to believe that the suspect was driving under the influence.”

State v. Homan, 89 Ohio St.3d 421, 427 (2000), superseded on other grounds by statute as

recognized in State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37.
                                                 7


       {¶14} Sergeant Bishop testified that he arrested Ms. Hicks based on the speed she had

been driving, the odor of alcohol coming from her, her glassy and bloodshot eyes, and the clues

she gave during the field sobriety tests. We also note that Ms. Hicks admitted consuming

alcohol only an hour before the stop. Based on the totality of the circumstances, we conclude

that Sergeant Bishop had sufficient information to believe that Ms. Hicks was driving under the

influence. See State v. Krzemieniewski, 9th Dist. Medina No. 15CA0015-M, 2016-Ohio-4991, ¶

19; State v. Rospert, 9th Dist. Medina No. 12CA0033-M, 2012-Ohio-6110, ¶ 8; State v.

McGinty, 9th Dist. Medina No. 08CA0039-M, 2009-Ohio-994, ¶ 19-20. Ms. Hicks’s second

assignment of error is overruled.

                                                III.

       {¶15} Ms. Hicks’s assignments of error are overruled. The judgment of the Wayne

County Municipal Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                8


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



TEODOSIO, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶16} I respectfully dissent in regard to the first assignment of error. While the majority

relies on this Court’s decision in State v. Stecion, 9th Dist. Summit No. 20626, 2002 WL 121201

(Jan. 30, 2002), where we held that the State’s failure to provide evidence of a compliant

calibration test subsequent to an accused’s BAC test does not prohibit the admissibility of the

accused’s test results, id. at *3-4, I would conclude that the facts of the instant case are

distinguishable. Stecion involved a scenario where the BAC Data Master machine could not be

evaluated after the defendant took the test due to a variety of inexplicable circumstances,

including an electrical storm during which lightning destroyed the computer chips on the Data

Master, forcing the police department to replace the machine.           Id. at *1.    Unlike the

circumstances in Stecion, this case involves a situation where the evidence suggests that there

were issues with the Data Master machine both before and after Hicks was tested. In addition to

the concerns surrounding the machine aborting a test when it was evaluated six days before

Hicks’ test, the machine was evaluated the day after Hicks was tested and the supervisor
                                                9


determined that it was necessary to take the machine out of service due to continued problems.

Under these circumstances where there were legitimate concerns surrounding the reliability of

the Data Master machine, I would hold that the results of Hicks’ test should be suppressed.


APPEARANCES:

DAVID C. KNOWLTON, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
