         [Cite as Cincinnati v. Vu, 2014-Ohio-3463.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-130405
CITY OF CINCINNATI,                                    TRIAL NO. 12TRC-16050B
                                                  :
        Plaintiff-Appellant,
                                                  :        O P I N I ON.
  vs.
                                                  :
DUY T. VU,

    Defendant-Appellee.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed from is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 13, 2014


Terrance Nestor, Interim City Solicitor, Charles Rubenstein, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellant,

Ernst & Associates, LLC, and Matthew T. Ernst, for Defendant-Appellee.




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




C UNNINGHAM , Presiding Judge.

       {¶1}   The city of Cincinnati appeals the judgment of the Hamilton County

Municipal Court granting Duy T. Vu’s motion to suppress the results of a breath test

taken on an Intoxilyzer 8000 machine. The trial court suppressed the results of Vu’s

breath test after finding that the state had failed to demonstrate that the machine

had been recertified within the time frame set forth in Ohio Adm.Code 3701-53-

04(C). Because we find that the trial court misinterpreted the rule, and that the

machine used to administer Vu’s test had been certified as required by the rule at the

time of the test, we reverse the trial court’s judgment.

                       Background Facts and Procedure

       {¶2}   On April 1, 2012, a Cincinnati police officer arrested Vu for operating a

motor vehicle while under the influence of alcohol (“OVI”) in violation of R.C.

4511.19(A)(1)(a). Vu submitted to a breath test on the Intoxilyzer model 8000 (OH-

5), serial number 80-004096, with a result of .159 grams by weight of alcohol per

210 liters of breath. Vu moved to suppress the test results, in part on the allegation

that a qualified representative of the Ohio director of health had not performed an

instrument certification on the breath-testing instrument at least “once every

calendar year,” in accordance with Ohio Adm.Code 3701-53-04(C).

       {¶3}   At the suppression hearing, Inspector Michael Quinn of the

Department of Health testified that he had successfully performed an instrument

certification on the machine on June 9, 2011, when it was placed into service.

Pursuant to his testimony, the court admitted into evidence the instrument

certification report and the related inspector’s certification statement. The state

rested its case on August 22, 2012, and the defense presented no evidence. The court




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                     OHIO FIRST DISTRICT COURT OF APPEALS



continued the case for a decision, which was issued almost ten months later, in June

2013. The parties did not object to the continuance, which allowed the parties to

submit written arguments on the motion, and allowed the trial court to render its

decision after this court had ruled on several issues arising on other cases concerning

the Intoxilyzer 8000 machines.

       {¶4}   Vu argued that the city had not demonstrated compliance with the

recertification requirement in Ohio Adm.Code 3701-53-04(C) because it had not

presented evidence of a certification in 2012, the year of his breath test. The city

argued that Vu had misinterpreted the requirement of the rule, which as applied in

this case mandated only a yearly certification. Therefore, the machine used for Vu’s

test, which had last been certified in 2011, had been certified as required by the rule

at the time of the test in April 2012, because the 2012 calendar year had not yet

expired.
       {¶5}   The city contended that Vu’s interpretation would lead to absurd

results because in many cases it would require the court to continue OVI cases in

progress to enable the city to show compliance later in the calendar year.

       {¶6}    The trial court adopted Vu’s argument and granted the motion to

suppress based on the city’s failure to comply with Ohio Adm.Code 3701-53-04(C).

The city now appeals, challenging the granting of the motion in a single assignment

of error.

                                  Legal Analysis

       {¶7}   Because Vu moved to suppress the test results on the basis of

noncompliance with Ohio Adm.Code 3701-53-04(C), the city had the initial burden

at the suppression hearing to demonstrate, at a minimum, substantial compliance

with the rule to lay the foundation for the admissibility of the test results. State v.



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                       OHIO FIRST DISTRICT COURT OF APPEALS


Burnside, 100 Ohio St.3d 152, 157, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 24. The results

of a test administered in substantial compliance with the regulations are admissible

absent a defendant’s demonstration of prejudice from less than strict compliance.

See id.

          {¶8}   Appellate review of a motion to suppress involves a mixed question of

law and fact. Id. at ¶ 8. The dispositive issue in this case, however, involves a purely

legal question that we review de novo—the interpretation of a rule adopted by the

Ohio Department of Health, Ohio Adm.Code 3701-53-04(C). This rule provides in

relevant part as follows:

                 Representatives of the director shall perform an instrument

                 certification on approved evidential breath testing instruments

                 listed under paragraph (A)(3) of rule 3701-53-02 of the

                 Administrative Code using a solution containing ethyl alcohol[.]

                 * * * An instrument shall be certified no less frequently than

                 once every calendar year or when the dry gas standard on the

                 instrument is replaced, whichever comes first. A calendar year

                 means the period of twelve consecutive months, as indicated in

                 section 1.44 of the Revised Code, beginning on the first day of

                 January, and ending on the thirty-first day of December.

(Emphasis added.)


          {¶9}   Vu conceded at the suppression hearing that he was only challenging

the admissibility of the test results on the ground that the city had failed to comply

with the “once every calendar year” recertification requirement found in Ohio

Adm.Code 3701-53-04(C).




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} Yearly-Certification Requirement. The rule set forth in Ohio

Adm.Code 3701-53-04(C) adopts the definition of a calendar year as set forth in R.C.

1.44, and requires only a yearly certification, not a certification within 365 days of the

last certification. State v. Patel, 5th Dist. Stark No. 2012CA00190, 2013-Ohio-3300,

¶ 35. We read the rule to mean that a successful certification in a calendar year is

valid until December 31 of the following calendar year, absent specified

circumstances not relevant in this case.

       {¶11} In construing this administrative rule that the Director of the Ohio

Department of Health promulgated under the authority of R.C. 3701.143, we apply

the established standards of statutory construction. See R.C. 1.41; McFee v. Nursing

Care Mgt. of Am., Inc., 126 Ohio St.3d 183, 2010-Ohio-2744, 931 N.E.2d 1069; State

v. Wemer, 112 Ohio App.3d 100, 103, 677 N.E.2d 1258 (4th Dist.1996). Accordingly,

we read the rule as a whole and we presume that the director, in promulgating the

rule, intended a reasonable result. R.C. 1.47(B) and (C). Further, we must read the

rules relating to the same subject matter in pari materia. State v. Castle, 10th Dist.

Franklin No. 12AP-369, 2012-Ohio-6028, ¶ 10-11.

       {¶12} Vu’s construction of the rule leads to an unreasonable result, because it

could require trial courts to continue cases—sometimes until the conclusion of the

calendar year—for the city to demonstrate compliance. Moreover, when the yearly

certification provision of Ohio Adm.Code 3701-53-04(C) is read in the context of the

entire rule, and with the other rules in Ohio Adm.Code 3701-53-04 that involve the

same subject matter, we are confident that the director’s intent to assure the

reliability of the testing instruments is met by our interpretation. These provisions

require recertification at an earlier time, such as when the dry gas standard on the

machine is replaced, see Ohio Adm.Code 3701-53-04(C), and before the machine is



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                      OHIO FIRST DISTRICT COURT OF APPEALS



placed into service following repairs. See Ohio Adm.Code 3701-53-04(D). And Ohio

Adm.Code 3701-53-04(B) mandates an instrument check of the dry gas standard on

an Intoxilyzer 8000 machine “before and after each subject test.”

       {¶13} In this case, the city demonstrated that the instrument met the

challenged yearly certification requirement at the time of Vu’s breath test in April

2012, because the Department of Health representative had successfully performed a

certification in 2011. Therefore, we determine that the city established not just

substantial compliance, but strict compliance with Ohio Adm.Code 3701-53-04(C).

Thus, the trial court erred in granting Vu’s motion to suppress. See Burnside, 100

Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 24. Consequently, we sustain

the assignment of error on this basis.

                                      Conclusion

       {¶14} Because we sustain the assignment of error, we reverse the judgment

of the trial court granting Vu’s motion to suppress. The cause is remanded for

further proceedings consistent with this opinion and the law.

                                                Judgment reversed and cause remanded.

HILDEBRANDT and DINKELACKER, JJ., concur.


Please note:

The court has recorded its own entry on the date of the release of this opinion.




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