[Cite as State v. Shockey, 2014-Ohio-5004.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-14-06

        v.

DOUGLAS SHOCKEY,                                          OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Marion Municipal Court
                             Trial Court No. TRC-12-09319

                                      Judgment Affirmed

                          Date of Decision: November 10, 2014




APPEARANCES:

        Jeff Ratliff for Appellant

        Steven E. Chaffin for Appellee
Case No. 9-14-06


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant, Douglas Shockey (“Shockey”), brings this

appeal from the judgment of the Municipal Court of Marion County, Ohio,

denying his motion to suppress and finding him guilty of OVI (operation of a

vehicle while under the influence). For the reasons that follow, we affirm the trial

court’s judgment.

       {¶2} This case stems from an OVI charge filed against Shockey in the trial

court on December 17, 2012, which was based on an arrest and a breath alcohol

content (BAC) test conducted on the same day. Shockey moved to dismiss the

charges, or in the alternative, to suppress evidence.      Shockey cited multiple

reasons for his motion, including failure to observe for a required twenty-minute

period prior to the BAC test and failure to ensure no oral intake prior to the breath

test. The trial court conducted a hearing on the motion.

       {¶3} Four people testified at the suppression hearing about the events on

December 17, 2012, when Shockey was arrested and brought to the Multi-County

Jail for a breath test. They were: Sergeant Ben Kruder from the Multi-County Jail

(“Sergeant Kruder”), Sergeant Todd Cunningham from the Ohio State Highway

Patrol (“Sergeant Cunningham”), Trooper Kristi Comstock from the Ohio State

Highway Patrol (“Trooper Comstock”), and Shockey. (See Tr. of Proceedings,

June 27, 2013 (“Tr.”).) As relevant to this appeal, Sergeant Kruder, Sergeant

Cunningham, and Trooper Comstock testified that, upon arrival at the Multi-
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County Jail, a foreign substance was removed from Shockey’s mouth and,

following a twenty-minute wait period, the breath test was administered. (Tr. at 3-

79.) Shockey testified that he had tobacco in his mouth when he arrived at the

Multi-County Jail. (Tr. at 88.) He stated that, upon being asked to spit it out, he

“manipulated it, spit some of it out,” and left some in his mouth for “[n]o

particular reason.”   (Id.)   He claimed that he swallowed the juices from the

tobacco and that some of the tobacco was still in his mouth when he actually took

the breath test. (Tr. at 88, 95.) Based on this testimony, Shockey requested

suppression of his breath test results.

       {¶4} Following the hearing, the trial court denied Shockey’s motion.

Shockey pled no contest to the OVI charge and was found guilty. He now appeals

the trial court’s denial of his motion to suppress, raising the following assignments

of error.

                   ASSIGNMENT OF ERROR NUMBER ONE:

       The trial court failed to grant Appellant’s Motion to Suppress
       when tobacco remained in Appellant’s mouth and proper
       procedure was not followed in the removal of such item.

                   ASSIGNMENT OF ERROR NUMBER TWO:

       The trial court failed to grant Appellant’s Motion to Suppress
       when the twenty minute observation period was not observed by
       the arresting officer or the BAC test operator.

       {¶5} An appellate review of the trial court’s decision on a motion to

suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio
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Case No. 9-14-06


St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio

App.3d 46, 51, 735 N.E.2d 953 (3d Dist.1999). We will accept the trial court’s

factual findings if they are supported by competent, credible evidence because the

“evaluation of evidence and the credibility of witnesses” at the suppression

hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582

N.E.2d 972 (1992); Norman at 51; Burnside at ¶ 8. But we must independently

determine, without deference to the trial court, whether these factual findings

satisfy the legal standard as a matter of law because “the application of the law to

the trial court’s findings of fact is subject to a de novo standard of review.”

Norman at 52; Burnside at ¶ 8.

       {¶6} We address the two assignments of error together, as they both

challenge compliance with the same breath testing procedure.                 The two

assignments of error are based on the regulation that breath samples “shall be

analyzed according to the operational checklist for the instrument being used.”

Ohio Adm.Code 3701-53-02(D). It has been recognized that one of the elements

on the checklist is “that the person being tested be observed for twenty minutes

before the test to prevent the oral intake of any material.” State v. Siegel, 138

Ohio App.3d 562, 566-567, 741 N.E.2d 938 (3d Dist. 2000); see also R. at 5, BAC

DataMaster Subject Test Form, Ex. B. This requirement operates “to eliminate the

possibility that the test result is a product of anything other than the subject’s deep

lung breath.”      State v. McAuley, 8th Dist. Cuyahoga No. 76720, 2000 WL
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1038186, *4 (July 27, 2000); accord State v. Steele, 52 Ohio St.2d 187, 191, 370

N.E.2d 740 (1977); State v. Camden, 7th Dist. Monroe No. 04 MO 12, 2005-Ohio-

2718, ¶ 13, quoting Bolivar v. Dick, 76 Ohio St.3d 216, 218, 667 N.E.2d 18

(1996). Shockey argues that he was not properly observed for twenty minutes

prior to the BAC test and further, that he had “swallowed the juice of the tobacco

during the twenty (20) minute observation period.” (App’t Br. at 9, citing Tr. at

95.) He asserts that for these reasons, his BAC test was not administered in

compliance with the regulations, and thus, the results of it should have been

excluded.

       {¶7} We have previously set forth the standard for reviewing a challenge to

the breath test analysis in State v. Blair, 3d Dist. Marion No. 9-12-14, 2013-Ohio-

646.

       In seeking to suppress the results of a breath analysis test, the
       defendant must set forth an adequate basis for the motion. The
       motion must state the “ * * * legal and factual bases with sufficient
       particularity to place the prosecutor and court on notice as to the
       issues contested.” Once an adequate basis for the motion has been
       established, the prosecution then bears the burden of proof to
       demonstrate substantial compliance with the Ohio Department of
       Health regulations. If the prosecution demonstrates substantial
       compliance, the burden of proof then shifts to the defendant to
       overcome the presumption of admissibility and demonstrate that he
       or she was prejudiced by anything less than strict compliance.

Id. at ¶ 35, quoting State v. Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994),

and citing Crim.R. 47; Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797



                                        -5-
Case No. 9-14-06


N.E.2d 71, at ¶ 24; Xenia v. Wallace, 37 Ohio St.3d 216, 220, 524 N.E.2d 889

(1988). We therefore review Shockey’s challenges under the above standard.

       {¶8} Shockey’s motion in the trial court stated his bases for challenging the

BAC test when it alleged that the State failed to comply with the twenty-minute

observation period by failing to properly observe him and failing to ensure no oral

intake prior to the breath test.   The State then had a burden to demonstrate

substantial compliance with the twenty-minute observation period. At the hearing,

the State offered testimony of three witnesses. Sergeant Kruder, who is involved

with the intake of arrestees at the Multi-County Jail, testified about his

observations on the night Shockey was arrested. (Tr. at 3-25.) He saw a foreign

substance being removed from Shockey’s mouth and he testified to the twenty-

minute wait period afterward, prior to the administration of the breath test. (Tr. at

8-11.) He admitted that no one looked in Shockey’s mouth to see whether there

was anything left in his mouth after the foreign substance was removed. (Tr. at

20.) But in his observation, there were no additional substances in Shockey’s

mouth. (Tr. at 23.)

       {¶9} Sergeant Cunningham testified that he was present at the Multi-

County Jail during the “whole time,” “[f]rom when [Shockey] first came in there

until the test was performed.” (Tr. at 32.) He saw a foreign substance taken out of

Shockey’s mouth and testified to the twenty-minute wait before the BAC test “so

that there was no foreign substance in his mouth.” (Tr. at 33.) He admitted,
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Case No. 9-14-06


however, that he did not “time” the twenty-minute period and he did not

personally search Shockey’s mouth. (Tr. at 39-40.)

       {¶10} Trooper Comstock was the person who arrested Shockey on

December 17, 2012, and administered his breath test. (Tr. at 41-42; 53-55.) She

testified that the first requirement on the BAC test checklist is “[o]bserve the

subject 20 minutes prior to testing to prevent oral intake of any material.” (Tr. at

54, quoting Tr. Ex. B.) She testified that this requirement was followed when

administering Shockey’s breath test, and added, “we did have a wait additional 20

minutes because of that substance that was discovered upon intake.” (Tr. at 54.)

Although Trooper Comstock saw the foreign object being removed out of

Shockey’s mouth, she admitted that she did not know whether “what he took out

was everything that had been in his mouth.” (Tr. at 75.) Trooper Comstock

testified that during the twenty minutes preceding the test, she was “in close

proximity and could observe [Shockey].” (Id.) According to her observations,

Shockey did not intake any additional substance during the twenty-minute wait.

(Tr. at 54-55; 75.) Trooper Comstock further observed Shockey and “his mouth

while he was actually taking the test” and she stated that “[w]hile he was at the

machine there didn’t appear to be anything in his mouth.” (Id. at 74-75.) On

cross-examination, Trooper Comstock admitted that during the twenty-minute

wait, she was involved in “doing some paperwork” and did not “directly” watch

Shockey at the same time. (Id. at 75-76.) She stated that even when she wasn’t
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Case No. 9-14-06


looking directly, Shockey was still being observed by other people, including

“[t]he jail staff and Sergeant Cunningham.” (Id. at 76, 79.)

       {¶11} Based on this testimony, the trial court made the following factual

findings.

       The evidence showed that Defendant was observed by Trooper
       Comstock, Trooper Cunningham, Sargeant [sic] Ben Kruder at the
       Multi-County Jail, and another unidentified officer at the jail. The
       three officers all testified that Defendant removed a foreign
       substance from his mouth at the jail and then was observed for
       twenty minutes after that before the breath test was administered.
       They all said nothing else entered Defendant’s mouth during that
       time. The jail tape showed that at least thirty-three minutes passed
       after Defendant took something out of his mouth and discarded it
       before the breath test was administered. Nothing else was ingested
       from outside his mouth during that time. The Court finds that
       Defendant was properly observed for the required twenty minute
       period.

(R. at 13, J. Entry at 3.) Therefore, the trial court found substantial compliance

with the twenty-minute observation period. Shockey argues that the trial court’s

finding was incorrect because Sergeant Kruder was not a proper person to perform

the observation. Arguing that the testimony of Sergeant Kruder cannot be used to

establish the twenty-minute observation period, Shockey claims that this

requirement was not satisfied by Sergeant Cunningham and Trooper Comstock

only. (App’t Br. at 18.)

       {¶12} Shockey fails to cite any law that supports his argument that Sergeant

Kruder was not qualified to perform the required observation. Nevertheless, even

without Sergeant Kruder’s testimony, the trial court’s finding of substantial
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Case No. 9-14-06


compliance with the twenty-minute observation period is supported by evidence.

Apart from Sergeant Kruder, two more witnesses testified that they observed

Shockey and none of them testified that the observation period was interrupted in

any way. Sergeant Cunningham testified that he was present at the scene during

the entire twenty-minute observation period and did not see anything enter

Shockey’s mouth. Shockey claims that Sergeant Cunningham’s testimony, “we

waited an additional twenty minutes to perform BAC test so that there was no

foreign substance in his mouth,” is insufficient because he did not expressly say

that he observed Shockey. Shockey is reading failure to observe into Sergeant

Cunningham’s testimony where no such failure is established by the record.

      {¶13} Shockey’s challenge further fails because Trooper Comstock’s

observation is sufficient on its own, in spite of the fact that she was doing some

paperwork at the same time. Since strict compliance with the twenty-minute

observation period is not required, see Bolivar, 76 Ohio St.3d at 218, 218, 667

N.E.2d 18, the State need not demonstrate that:

      “ * * * the subject was constantly within [the witnessing officer’s]
      gaze, but only that during the relevant period the subject was kept in
      such a location or condition or under such circumstances that one
      may reasonably infer that his ingestion of any material without the
      knowledge of the witness is unlikely or improbable.

      To overcome that inference, the accused must show that he or she
      did, in fact, ingest some material during the twenty-minute period.
      The ‘mere assertion that ingestion was hypothetically possible ought
      not to vitiate the observation period foundational fact so as to render
      the breathalyzer test results inadmissible.’ ”
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Case No. 9-14-06



(Emphasis sic.) Siegel, 138 Ohio App.3d at 569, 741 N.E.2d 938, quoting State v.

Adams, 73 Ohio App.3d 735, 740, 598 N.E.2d 176 (2d Dist.1992), and Steele, 52

Ohio St.2d at 192, 370 N.E.2d 740; see also State v. Isbell, 3d Dist. Shelby No.

17-08-08, 2008-Ohio-6753, ¶ 34.

       {¶14} Shockey attempts to overcome the presumption of substantial

compliance arguing that he had “swallowed the juice of the tobacco during the

twenty (20) minute observation period.” (App’t Br. at 9, citing Tr. at 95.) He

relies on our opinion in Siegel at 568, where we held that “if an accused orally

ingests any material within the twenty-minute observation, the test as administered

was not in ‘substantial compliance’ with the Ohio Department of Health

regulations.”

       {¶15} Shockey’s argument is unavailing. In Siegel, the defendant drank

“quite a bit” of water during the twenty-minute observation period before the test.

Id. at 565. Shockey, however, does not allege that he placed the tobacco or

anything else in his mouth during the observation period. He does not dispute the

testimony of three witnesses who “all said nothing else entered defendant’s mouth

during that time.” (R. at 13, J. Entry at 3.) Nor does he dispute the trial court’s

finding that “[n]othing else was ingested from outside his mouth during that time.”

(See id.)




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       {¶16} In State v. Bibler, we reviewed an almost identical situation, where

“two police officers testified that they watched [the defendant] for the entire time

and that he did not place anything in his mouth.” 3d Dist. Marion No. 9-01-19,

2001 WL 1187817, *2.         Although the defendant did not dispute the police

officers’ testimony, he alleged that “snuff remained in his mouth subsequent to the

officer directing him to spit out the substance.” Id. We refused to use the

defendant’s self-serving testimony about the snuff remaining in his mouth to

reverse the trial court’s factual finding that he “did not intake any material during

the twenty minute observation period,” which “was based on competent, credible

evidence.” Id. We recognized that there was “absolutely no evidence of oral

intake during the observation period.”           Id.   Therefore, we overruled the

defendant’s assignment of error, holding, that “[t]he State presented unchallenged

testimony that the appellant was observed for the full time period and that there

was no oral intake at any point. This is sufficient evidence for the State to meet its

burden.” Id.

       {¶17} The Eleventh District Court of Appeals came to the same conclusion

upon the defendant’s assertion that during the twenty-minute observation period

he had chewing tobacco in his mouth and he was still swallowing tobacco juices.

See State v. Dierkes, 11th Dist. Portage No. 2008-P-0085, 2009-Ohio-2530, ¶ 12.

In Dierkes, the State established that during the observation period the defendant

did not “put anything in his mouth.” Id. at ¶ 43. The observing officer “did not
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Case No. 9-14-06


notice anything in his mouth.” Id. at ¶ 42. The trial court found that no oral intake

occurred and that the BAC test “ ‘was administered in compliance with D.O.H.

regulations, and the result is admissible. * * *’ ” Id. at ¶ 46-47. The Court of

Appeals affirmed. Id. at ¶ 50. In the current case, like in Dierkes, the witnesses

testified that they did not see anything in Shockey’s mouth after the tobacco was

removed and did not see any new material enter his mouth during the twenty-

minute observation period.

       {¶18} Similarly, the Fourth District Court of Appeals refused to suppress

evidence where the defendant testified that tobacco remained in his mouth

throughout the observation period and that he ingested some tobacco during that

time. See State v. Murray, 4th Dist. Ross No. 95 CA 2090, 1995 WL 752454

(Dec. 15, 1995). The Court of Appeals offered two reasons for its decision. As

one of them, the Court of Appeals recognized that:

       appellant presented no evidence that any foreign substance was
       digested and passed into his blood stream, or received into his
       respiratory system during the observation period. Appellant
       presented no evidence to prove that any foreign substance interacted
       with his alveolar air so as to have an effect on his breath test result.
       Appellant did not present evidence at the suppression hearing to
       prove that a minute amount of tobacco in his mouth would affect the
       breath test results.

(Citations omitted.) Id. at *4. Like the defendant in Murray, irrespective of

whether any tobacco remained in his mouth, Shockey presented no evidence to




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prove that his breath test results were in any way affected, so as to require the

suppression of evidence.

       {¶19} Shockey cites two cases from the Fifth District Court of Appeals,

where the court, relying on its reasoning that “the term ‘intake’ is broader than the

term ‘ingest,’ ” held that the act of chewing a gum or tobacco during the

observation period results in ingestion of its ingredients and invalidates substantial

compliance with the Ohio Department of Health regulations. See State v. Karns,

5th Dist. Fairfield No. 97CA0002, 1998 WL 550708 (July 21, 1998); State v.

Baldridge, 5th Dist. Ashland No. 01-COA-01412, 2001 WL 1673756, quoting

Karns id. While we do not follow the reasoning of the Fifth District Court of

Appeals, we recognize that Karns and Baldridge are distinguishable from the

current case. In both cases, there were factual findings by the trial court that

defendants had foreign objects in their mouths within the twenty minutes prior to

the administration of the test. Karns at *1; Baldridge at *2. Here, the trial court

did not make a finding that Shockey actually had tobacco remaining in his mouth

during the twenty-minute observation period.             Although the trial court

acknowledged Shockey’s testimony that he “left some tobacco in his mouth” and

“swallowed juice from it prior to the test,” it recognized that “Sargent [sic] Kruder

and Trooper Comstock said they did not observe anything else in Defendant’s

mouth after the tobacco was removed.” (R. at 13, J. Entry at 3.)



                                        - 13 -
Case No. 9-14-06


       {¶20} Our review of Ohio cases supports a finding of substantial

compliance. Thus, following our decision in Bibler, we hold that the State met its

burden of proving substantial compliance with the Ohio Department of Health

regulations and Shockey’s mere allegations do not amount to the showing of

prejudice so as to overcome the presumption of admissibility under the standard

we established in Blair, 3d Dist. Marion No. 9-12-14, 2013-Ohio-646, at ¶ 35.

Therefore, we hold that the State substantially complied with the Ohio Department

of Health regulations and lacking any prejudice shown or alleged by Shockey, the

breath test results are admissible. See id.

       {¶21} Based upon the forgoing discussion, Shockey’s assignments of error

are overruled.

                                     Conclusion

       {¶22} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued.   The judgment of the Municipal Court of Marion County, Ohio is

therefore affirmed.

                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




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