         [Cite as State v. Clemente, 2013-Ohio-5213.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :      APPEAL NO. C-120828
                                                        TRIAL NO. 12TRC-9125 A
        Plaintiff-Appellant,                      :
                                                             O P I N I O N.
  vs.                                             :

BRADLEY CLEMENTE,                                 :

    Defendant-Appellee.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 27, 2013


John P. Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Christopher
Liu, Assistant City Prosecutor, for Plaintiff-Appellant,

Robert Healey, for Defendant-Appellee.




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




D E W INE , Judge.

       {¶1}     This is an appeal by the city of Cincinnati from a trial court decision that

granted a motion to suppress the results of a breath-alcohol test. The trial court granted

the motion based upon noncompliance with Ohio Department of Health (“ODH”)

regulations. Specifically, it found a violation of an ODH regulation that required that the

“results” of breath-alcohol tests be maintained for three years. The problem was that,

because of a computer glitch, certain data from earlier tests performed on other

individuals had not been retained. The court also found that ODH had failed to

establish procedures for issuing permits for Intoxilyzer 8000 operators as required by

Ohio law. Our holdings in two prior opinions of this court, State v. McNett, 1st Dist.

Hamilton No. C-120824, 2013-Ohio-5099, and State v. McMahon, 1st Dist. Hamilton

No. C-120728, 2013-Ohio-2557, compel that we reverse the decision of the trial court.

       {¶2}     On February 21, 2012, Bradley Clemente was arrested and charged with

driving under the influence of alcohol under R.C. 4511.19(A)(1)(a), driving with a

prohibited level of alcohol in his breath under R.C. 4511.19(A)(1)(d), and speeding under

R.C. 4511.21(C). He submitted to a breathalyzer test on an Intoxilyzer 8000 machine

with the serial number 80-004096, located at the Cincinnati District 2 police station.

       {¶3}     Mr. Clemente filed a motion to suppress the result of his breath test. The

trial court consolidated his motion with those of defendants Rachel McNett, Jeffrey

Inman, and Eric Muchmore, whose breath tests were also administered on the same

machine, solely for the purpose of determining whether the city met its burden of

showing substantial compliance with the ODH regulations.             After an evidentiary

hearing, the trial court found that the city failed to meet its burden and granted the

motion to suppress. The trial court determined that the city failed to comply with Ohio




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                      OHIO FIRST DISTRICT COURT OF APPEALS



Adm.Code 3701-53-01(A), which mandates that the results of breath-alcohol tests be

retained for at least three years. The trial court also found that the ODH had not

established procedures for issuing permits for Intoxilyzer 8000 operators, as required

by R.C. 4511.19 and 3701.143. While we defer to the trial court’s factual findings, we

review whether those facts demonstrate substantial compliance under a de novo

standard. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

       {¶4}     The testimony at the hearing revealed that a breath-alcohol test on the

Intoxilyzer 8000 consists of two breath samples, the lower of which is used as the final

breath-alcohol result.    The machine successfully printed a “subject test report”

containing this information for Mr. Clemente’s breath-alcohol test. As a result of an

ODH server error, however, data from breath tests administered on the machine

between December 15, 2011, and December 22, 2011, was not uploaded to the ODH

database. By comparing its records with a logbook of test results kept at the District 2

police station, the ODH determined that Cincinnati police performed tests on ten

individuals during this time. The ODH duplicated the results of the tests from the

logbook, but additional data not included in the logbook has been irretrievably lost.

       {¶5}     In its first assignment of error, the city contends that the trial court erred

by finding that the ODH failed to establish qualifications for issuing permits for

Intoxilyzer 8000 operators as required by R.C. 4511.19 and 3701.143. We addressed this

issue in McMahon, 2013-Ohio-2557.           In McMahon, we noted that R.C. 3701.143

authorizes the director of health to issue permits to breath-alcohol machine operators,

and we found the ODH’s position that an operator access card is a type of operator

permit to be supported by the relevant code provisions. Id. at ¶ 13-14. Given our

decision in McMahon, we sustain the first assignment of error.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶6}    The city contends in its second assignment of error that the trial court

erred in suppressing the test result based on noncompliance with the record-retention

provisions. We evaluated the record-retention issue in appeals by the other defendants

consolidated for the hearing below. State v. Muchmore, 1st Dist. Hamilton No. C-

120830, 2013-Ohio-5100; McNett, 2013-Ohio-5099. In those decisions, we noted that

Ohio Adm.Code 3701-53-01(A) requires only that the results of the tests be retained, and

we held that the “result” is the lower of the two breath-alcohol measurements taken

during the test. Muchmore at ¶ 31; McNett at ¶ 31. The ODH duplicated the results of

the missing tests by consulting the District 2 logbook, and although it cannot recover all

the extrinsic data from those tests, there is no provision requiring it to do so.

        {¶7}    When a defendant challenges the admission of a breath-alcohol test

result in a motion to suppress, courts apply a burden-shifting analysis. The state must

show substantial compliance with ODH regulations, and if the state meets that burden, a

rebuttable presumption arises that the test results are admissible. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 24; State v. Booth, 1st Dist. Hamilton

No. C-070184, 2008-Ohio-1274. Then, the burden shifts back to the defendant to show

that he or she “was prejudiced by anything less than strict compliance.” Burnside at

¶ 24.   In this case, we believe that the city has demonstrated at least substantial

compliance with the requirements of Ohio Adm.Code 3701-53-01(A) because the

“results” were maintained. Furthermore, Mr. Clemente has not shown any prejudice.

His test result was not lost, the results of the ten missing tests have been ascertained,

and he has not shown how the speculative loss of any additional test results

compromises the accuracy or evidentiary value of his own breath-alcohol result. The

second assignment of error is sustained.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}    For the above reasons, we reverse the judgment of the trial court and

remand the case for further proceedings.


D INKELACKER , P.J., and F ISCHER , J., concur.


Please note:

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




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