[Cite as State v. Orr, 2016-Ohio-1148.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          BROWN COUNTY




STATE OF OHIO,                                   :
                                                        CASE NO. CA2015-08-019
        Plaintiff-Appellee,                      :
                                                                OPINION
                                                 :               3/21/2016
    - vs -
                                                 :

LAURIE D. ORR,                                   :

        Defendant-Appellant.                     :



             CRIMINAL APPEAL FROM BROWN COUNTY MUNICIPAL COURT
                              Case No. TRC 1500004



Jessica A. Little, Brown County Prosecuting Attorney, Nicholas R. Owens, 510 East State
Street, Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Matthew T. Ernst, 212 West 8th Street, Cincinnati, Ohio 45202, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Laurie D. Orr, appeals from her conviction in the Brown

County Court of Common Pleas for operating a vehicle while under the influence of alcohol

("OVI"). For the reasons outlined below, we affirm.

        {¶ 2} During the early morning hours of December 27, 2014, Trooper Kyle J. Klontz

of the Ohio State Highway Patrol observed Orr drive left of center and weave within her lane

as she traveled southbound on Upper Five Mile West Road, Brown County, Ohio. Upon
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initiating a traffic stop, Trooper Klontz made contact with Orr and noticed she exhibited

bloodshot and glassy eyes and had a strong odor of alcoholic beverage coming from her

person. After conducting field sobriety tests, Trooper Klontz arrested Orr for OVI and

transported her to the Mt. Orab Police Department. Once there, Orr submitted to a breath

test conducted on a BAC DataMaster, which revealed she had a breath-alcohol-content

("BAC") of .131.    Orr was then charged with two counts of OVI in violation of R.C.

4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d), both first-degree misdemeanors.

       {¶ 3} On March 31, 2015, Orr filed a motion to suppress her breath test result. In

support of her motion, Orr generally argued that her breath test result should be excluded

because "the Director of Health has failed to determine, or cause to be determined,

'techniques and methods' for chemically ascertaining the amount of alcohol in a person's

breath as mandated by O.R.C. §3701.143." Orr also generally argued that her breath test

result was unreliable since "the use of a testing method that consisted of only a single breath

test with no concurrent calibration checks" denied her due process and violated equal

protection under both the United States and Ohio Constitutions. Orr further noted, without

providing any specifics, that "[t]he state must establish compliance with the Department of

Health Regulations and R.C. 4511.19 before the results of a breath test may be admitted."

       {¶ 4} On April 28, 2015, the trial court held a hearing on Orr's motion to suppress. At

that hearing, and as relevant here, Trooper Klontz testified that he administered Orr's breath

test through the use of a BAC DataMaster, that he had used a BAC DataMaster before, that

he was certified in the use and operation of a BAC DataMaster both then and now, and that

he followed the BAC DataMaster operational checklist when he conducted Orr's breath test.

Trooper Klontz also testified on cross-examination that he knew the supervisor staff at the

Mt. Orab Police Department conducted weekly checks of the BAC DataMaster and that the

records of those weekly checks were kept nearby "[o]n the wall right in front of" the BAC

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DataMaster. Following Trooper Klontz's testimony, which went uncontradicted, both parties

rested and the trial court issued its decision denying Orr's motion to suppress.

       {¶ 5} On June 26, 2015, the matter then proceeded to a jury trial, which resulted in

Orr being acquitted of OVI in violation of R.C. 4511.19(A)(1)(a), but found guilty of OVI in

violation of 4511.19(A)(1)(d). Pursuant to that statute, "[n]o person shall operate any vehicle

* * * within this state, if, at the time of the operation, * * * [t]he person has a concentration of

eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by

weight of alcohol per two hundred ten liters of the person's breath." As noted above, Orr's

breath test conducted by Trooper Klontz revealed she had a BAC of .131. Orr now appeals

from her conviction, raising a single assignment of error for review.

       {¶ 6} THE TRIAL COURT ERRED WHEN IT OVERRULED THE MOTION TO

SUPPRESS THE DATAMASTER TEST RESULT WHEN THE PROSECUTION FAILED TO

SUSTAIN ITS BURDEN OF PROOF ON THE TEST RESULT.

       {¶ 7} In her single assignment of error, Orr argues the trial court erred by denying her

motion to suppress her breath test result because the state failed to meet its burden of proof.

We disagree.

       {¶ 8} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15,

citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a

motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the

evidence in order to resolve factual questions and evaluate witness credibility. State v.

Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. In turn, when reviewing

the denial of a motion to suppress, this court is bound to accept the trial court's findings of

fact if they are supported by competent, credible evidence. State v. Durham, 12th Dist.

Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 14.                 "An appellate court, however,
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independently reviews the trial court's legal conclusions based on those facts and

determines, without deference to the trial court's decision, whether as a matter of law, the

facts satisfy the appropriate legal standard." State v. Cochran, 12th Dist. Preble No.

CA2006-10-023, 2007-Ohio-3353, ¶ 12.

       {¶ 9} Pursuant to Crim.R. 47, in filing a motion to suppress in a criminal proceeding,

a defendant "shall state with particularity the grounds upon which it is made and shall set

forth the relief or order sought." This requires a defendant to "state the motion's legal and

factual bases with sufficient particularity to place the prosecutor and the court on notice of the

issues to be decided." State v. Shindler, 70 Ohio St.3d 54 (1994), syllabus. After the

defendant meets this burden by effectively placing the prosecutor and the court on sufficient

notice of the issues to be determined, the burden then shifts to the state to show substantial

compliance with the applicable standards, in this case the Ohio Department of Health

("ODH") regulations. State v. Plunkett, 12th Dist. Warren No. CA2007-01-012, 2008-Ohio-

1014, ¶ 11, citing City of Xenia v. Wallace, 37 Ohio St.3d 216, 220 (1988). However, as this

court has stated previously, "a defendant may not challenge the admission of his [or her]

BAC test based on specific issues that question the testing instrument's reliability." State v.

Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447, ¶ 28. Rather, a defendant is

limited in his or her challenge to (1) whether the ODH regulations were not followed, or (2)

whether the operator of the BAC instrument was not qualified. Id.

       {¶ 10} Although the burden shifts to the state, the extent of the state's burden of proof

establishing substantial compliance "only extends to the level with which the defendant takes

issue with the legality of the test." State v. Nicholson, 12th Dist. Warren No. CA2003-10-106,

2004-Ohio-6666, ¶ 10. For example, "[w]hen a defendant files a motion to suppress that

provides factual bases specific to the defendant's case in support of his or her claims that a

particular ODH regulation was not followed, the state must show substantial compliance with
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that ODH regulation." (Emphasis sic.) Dugan at ¶ 33, citing State v. Deutsch, 12th Dist.

Butler No. CA2008-03-035, 2008-Ohio-5658, ¶ 11. However, "[w]hen the language in the

motion to suppress raises only general claims, even though accompanied by specific

administrative code subsections, then there is only a slight burden on the state to show, in

general terms, compliance with the health regulations." State v. Jimenez, 12th Dist. Warren

No. CA2006-01-005, 2007-Ohio-1658, ¶ 25. Yet, even in those instances, the defendant

may still provide some factual bases, either during cross-examination or by conducting formal

discovery, to support a claim that the standards were not followed in an effort to raise the

"slight burden" placed on the state. Plunkett at ¶ 25-26, citing State v. Embry, 12th Dist.

Warren No. CA2003-11-110, 2004-Ohio-6324, ¶ 12.

       {¶ 11} As noted above, Orr argues the trial court erred by denying her motion to

suppress her breath test result because the state failed to meet its burden of proof.

However, as a simple review of the record reveals, Orr merely provided a general challenge

to the admissibility of her breath test result that failed to establish any factual bases specific

to her case either through her motion to suppress, her cross-examination of Trooper Klontz,

or through formal discovery, that could support a claim that any particular ODH regulation

was not followed, or that Trooper Klontz was not qualified to operate the BAC DataMaster at

issue. Therefore, based on Trooper Klontz's uncontradicted testimony, which established

that he (1) administered Orr's breath test through the use of a BAC DataMaster, a machine

that was checked weekly by the supervisor staff at the Mt. Orab Police Department, (2) had

used a BAC DataMaster before, (3) was certified in the use and operation of a BAC

DataMaster both then and now, and (4) followed the BAC DataMaster operational checklist

when conducting Orr's breath test, we find the state met its slight burden necessary to

establish Trooper Klontz was a qualified operator of the BAC DataMaster who complied with

the ODH regulations when he conducted Orr's breath test. In so holding, we reiterate that "a
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defendant may not challenge the admission of his [or her] BAC test based on specific issues

that question the testing instrument's reliability."    Dugan, 2013-Ohio-447 at ¶ 28.

Accordingly, because we find no error in the trial court's decision denying Orr's motion to

suppress, Orr's single assignment of error lacks merit and is overruled.

      {¶ 12} Judgment affirmed.


      PIPER, P.J., and HENDRICKSON, J., concur.




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