         [Cite as Cincinnati v. Nicholson, 2013-Ohio-708.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



CITY OF CINCINNATI,                               :          APPEAL NO. C-120332
                                                             TRIAL NO. 11TRC-50824
        Plaintiff-Appellant,                      :

  vs.                                             :             O P I N I O N.

SCOTT NICHOLSON,                                  :

    Defendant-Appellee.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: March 1, 2013


John P. Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Jennifer
Bishop, Assistant City Prosecutor, for Plaintiff-Appellant,

Suhre & Associates, LLC, and Joseph Suhre IV, for Defendant-Appellee.




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



HILDEBRANDT, Presiding Judge.

       {¶1}    Plaintiff-appellant, the city of Cincinnati, appeals from the trial court’s

judgment granting defendant-appellee Scott Nicholson’s motion to suppress the

results of his Intoxilyzer 8000 breath test. For the following reasons, we reverse the

trial court’s judgment and remand this cause for further proceedings.

       {¶2}    Nicholson was arrested for operating a vehicle while under the

influence of alcohol, and submitted to an Intoxilyzer 8000 breath test. According to

the intoxilyzer results, Nicholson’s breath contained .176 of one gram by weight of

alcohol per 210 liters of his breath. Nicholson was therefore charged with driving

with a prohibited level of alcohol in his breath, in violation of R.C. 4511.19(A)(1)(h).

       {¶3}    Nicholson subsequently moved the trial court to suppress the results of

his intoxilyzer test. Following a hearing, the trial court granted Nicholson’s motion

on the grounds that the city had failed to demonstrate compliance with Ohio Admin.

Code 3701-53-04(B) concerning the “dry gas control test” requirement for the

Intoxilyzer 8000. This appeal followed.

       {¶4}    In its sole assignment of error, the city argues that the trial court’s

judgment must be reversed because it was based on an incorrect interpretation of

Ohio Admin.Code 3701-53-04(B).

       {¶5}    Appellate review of a motion to suppress presents a mixed question of

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8; State v. Taylor, 174 Ohio App.3d 477, 2007-Ohio-7066, 882 N.E.2d 945, ¶ 11

(1st Dist.). At a suppression hearing, the trial court assumes the role of trier of fact

and, as such, is in the best position to resolve questions of fact and to evaluate

witness credibility. Burnside at ¶ 8. An appellate court must accept a trial court's

factual findings so long as competent and credible evidence supports them. Id. A




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                   OHIO FIRST DISTRICT COURT OF APPEALS



reviewing court then conducts a de novo review of the trial court's application of the

law to the facts of the case. Id.

       {¶6}    The relevant facts in this case are not in dispute. The parties agree

that when Nicholson took the Intoxilyzer 8000 test, the officer conducting the test

took two breath samples from Nicholson. Prior to Nicholson giving his first breath

sample, the Intoxilyzer 8000 conducted a dry gas control test as a part of its

calibration process. The machine ran another dry gas control test after Nicholson

gave his second breath sample.        The exact procedure used in administering

Nicholson’s breath test, set forth in a document entitled “Subject Test Report,” was

as follows:
        Air Blank
        Diagnostic
        Air Blank
        Dry Gas Control
        Air Blank
        Subject Test 1
        Air Blank
        Air Blank
        Subject Test 2
        Air blank
        Dry gas control
        Air Blank
       {¶7}    The city contends that this procedure complied with Ohio Admin.Code

3701-53-04(B). That code section requires the Intoxilyzer 8000 to “automatically

perform a dry gas control test before and after every subject test * * * .” Nicholson

argues, and the trial court agreed, that a third dry gas control test was required in

between Nicholson’s “Subject Test 1” and “Subject Test 2” breath samples.

       {¶8}    Resolution of this issue requires us to interpret Ohio Admin.Code

3701-53-04(B).     Interpretation of an administrative regulation presents a question

of law that we review de novo. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163,

871 N.E.2d 1167, ¶ 8.



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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}   Ohio Admin.Code 3701-53-04(B) requires that the Intoxilyzer 8000

“automatically perform a dry gas control test before and after every subject test * * *

.” To determine what is meant by the phrase “subject test,” we first look to the plain

language of the regulation. State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78,

81, 676 N.E.2d 519 (1997); Provident Bank v. Wood, 36 Ohio St.2d 101, 105-106, 304

N.E.2d 378 (1973). If the regulation “conveys a meaning which is clear, unequivocal

and definite, at that point the interpretative effort is at an end,” and the regulation

must be applied accordingly. Provident Bank at 106.

       {¶10} Faced with the same issue and the same type of “Subject Test Report”

form, in State v. Kormos, 2012-Ohio-3128, 974 N.E.2d 725, ¶ 16, (12th Dist), the

Twelfth Appellate District determined that the plain language of Ohio Admin.Code

3701-53-04(B) required a dry gas control before “Subject Test 1” and after “Subject

Test 2,” as those terms were used on the “Subject Test Form,” but that no test was

required in between them. The Kormos court relied on the definition of “subject”

found in Webster’s dictionary, i.e., “one that is placed under the authority, dominion,

control, or influence of someone or something * * * an individual whose reactions or

responses are studied.” Id., citing Webster’s Third New International Dictionary

2275 (1993). Applying this definition to Ohio Admin.Code 3701-53-04(B), the court

determined that “a ‘subject test’ is synonymous with running the Intoxilyzer 8000 on

a single ‘subject,’ i.e., ‘individual’ under law enforcement’s control.” Id. So, the court

concluded, there is a single “subject test” that is comprised of two different breath

samples. We find this analysis to be persuasive.

       {¶11} We therefore hold that the plain language of Ohio Admin.Code 3701-

53-04(B) requires a dry gas control test before a subject’s first breath sample and

after the subject’s second breath sample, but not in between the two samples. This is




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                  OHIO FIRST DISTRICT COURT OF APPEALS



precisely what occurred in this case.      The trial court therefore erred when it

determined that the city had failed to comply with Ohio Admin.Code 3701-53-04(B).

The city’s assignment of error is sustained.

       {¶12} The judgment of the trial court granting Nicholson’s motion to

suppress is reversed, and this cause is remanded for further proceedings consistent

with law and this opinion.

                                               Judgment reversed and cause remanded.

CUNNINGHAM 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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