[Cite as State v. Butler, 2013-Ohio-4451.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                          Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2013CA00053
ALAN BUTLER                                    :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Canton Municipal
                                                   Court, Case No. 2012 TRC 8318

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            October 7, 2013




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

TASHA FORCHIONE                                    SAMANTHA LISY
Canton City Prosecutor’s Office                    Stark County Public Defender’s Office
City Hall 7th Floor                                201 Cleveland Avenue S.W., Ste. 104
Canton, OH 44702                                   Canton, OH 44702
[Cite as State v. Butler, 2013-Ohio-4451.]


Gwin, P.J.

        {¶1}     Appellant Alan Butler [“Butler”] appeals the February 13, 2013 Judgment

Entry of the Canton Municipal Court denying his motion to suppress evidence. Appellee

is the State of Ohio.

                                      Factual and Procedural Background

        {¶2}     On December 23, 2012 at approximately 12:30 a.m., Officer Laurie Mans

of the Waynesburg Police Department stopped the vehicle Butler was driving because it

had only one headlight operating. During the course of the subsequent encounter,

Butler admitted that he had been drinking. At that point, Officer Mans asked Butler to

exit his vehicle to perform standardized field sobriety tests. Officer Mans performed

some of the standardized field sobriety tests with Butler and observed his training

partner administer additional test. Upon completion of the tests, Officer Mans

determined that Mr. Butler was intoxicated. Officer Mans arrested Butler and obtained a

urine sample from him.

        {¶3}     Brad Taylor from the Stark County Crime Lab testified that he has a

bachelor's degree in chemistry from Mount Union College and he is certified by the Ohio

Department of Health for alcohol analysis using the gas chromatography method. Taylor

stated that he tested two samples of Butler's urine using headspace gas

chromatography. The results of this testing showed the ethanol content in Mr. Butler's

urine was zero point one-one three grams per deciliter (0.113% g/dl).

        {¶4}     On cross-examination, Taylor was asked if he could state a percentage of

scientific accuracy in regards to the test he performed on the urine samples. Taylor

stated, "There is no method in place to-to calculate any type of uncertainty of the
Stark County, Case No. 2013CA00053                                                         3


results." (T. at 44-45). Further, Taylor was asked if there was a manner in which the lab

could present results with a percentage of accuracy, to which Mr. Taylor responded that

there is a manner in which a "degree of uncertainty" can be determined, but is not

currently in effect at the Stark County Crime Lab. (T. at 47-48). Finally, when asked if

there was a degree of scientific certainty to which Mr. Taylor could testify that Mr.

Butler's urine was over the point one-one (.11% g/dI) limit, Taylor said "I'm very

confident in our procedures, and based on the two separate analysis, both results being

above point one-one zero, I am confident to report that the result of point one-one three

would be representative." (T. at 48).

       {¶5}   At the conclusion of the suppression hearing, the trial court read into the

record its determination of facts and conclusions of law. The trial court determined that

the urine test results were admissible.

                                   ASSIGNMENT OF ERROR

       {¶6}   Butler raises one assignment of error,

       {¶7}   “I. THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO DUE

PROCESS AND COMMITTED AN ERROR OF LAW IN OVERRULING DEFENDANT'S

MOTION TO SUPPRESS DEFENDANT'S URINALYSIS.”

                                                 I.

       {¶8}   Butler contends that because the laboratory has no known percentage of

accuracy or know potential rate of error in the testing procedures, the urine test results

are not admissible at trial and, therefore, the trial court erred in overruling his motion to

suppress.
Stark County, Case No. 2013CA00053                                                         4


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

and fact. State v. Burnside, 100 Ohio St.3d 152, 154-155, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. When ruling on a motion to suppress, the trial court assumes the role of trier of

fact and is in the best position to resolve questions of fact and to evaluate witness

credibility. See State v. Dunlap, 73 Ohio St.3d 308,314, 1995-Ohio-243, 652 N.E.2d

988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). Accordingly, a

reviewing court must defer to the trial court's factual findings if competent, credible

evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.

Long, 127 Ohio App.3d 328, 332, 713 N.E.2d 1(4th Dist.1998); State v. Medcalf, 111

Ohio App.3d 142, 675 N.E.2d 1268 (4th Dist.1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law

whether the trial court met the applicable legal standard. See Burnside, supra, citing

State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539(4th Dist 1997); See,

generally, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740(2002);

Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911(1996). That

is, the application of the law to the trial court's findings of fact is subject to a de novo

standard of review Ornelas, supra. Moreover, due weight should be given “to inferences

drawn from those facts by resident judges and local law enforcement officers.” Ornelas,

supra at 698, 116 S.Ct. at 1663.

       {¶10} In State v. French, 72 Ohio St.3d 446, 449, 1995-Ohio-32, 650 N.E.2d

887, the Ohio Supreme Court held that a defendant must use a motion to suppress in

order to contest the admissibility of blood-alcohol test results on foundational grounds

that relate to compliance with the directives of the Director of Health. Specifically, if the
Stark County, Case No. 2013CA00053                                                          5


defendant contends that the test is not admissible because: (1) the sample was not

withdrawn within two hours of the time of the alleged violation; (2) the analysis was not

conducted in accordance with methods approved by the Director of Health; or (3) the

test was not conducted by a qualified permit holder, the defendant must file a motion to

suppress. French, supra, at paragraph one of the syllabus. Failure to do so or,

alternatively, failure to succeed on the merits of the motion will result in admission of the

test results without the necessity of the State laying a foundation on these issues. Id.

       {¶11} However, French specifically states that a defendant may challenge blood-

alcohol test results at trial under the Rules of Evidence. Id. at 452, 650 N.E.2d 887.

“Evidentiary   objections    challenging    the   competency,     admissibility,   relevancy,

authenticity, and credibility of the chemical test results may still be raised at trial.” Id.;

State v. Edwards, 107 Ohio St. 3d 169, 171, 2005-Ohio-6180 at ¶ 16, 837 N.E. 2d 752,

757; State v. Luke, Franklin App. No. 05AP-371, 2006-Ohio-2306 at ¶ 26.

       {¶12} The principles thus established in French would have equal application to

the analysis of any bodily substance, including urine.

       {¶13} R.C. 4511.19(D) requires that the analysis of bodily substances be

conducted in accordance with methods approved by the Ohio Director of Health, as

prescribed in Ohio Administrative Code regulations. The Ohio Supreme Court has held

that absent a showing of prejudice by the defendant, rigid compliance with ODH

regulations is not required as such compliance is not always humanly or realistically

possible. State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902(1986); State v.

Morton, 12th Dist. Warren No. CA98-10-131, 1999 WL 296700 (May 10, 1999); State v.

Raleigh, 5th Dist. Licking No. 2007-CA-31, 2007-Ohio-5515 at ¶ 40. Rather, if the state
Stark County, Case No. 2013CA00053                                                      6


shows substantial compliance with the regulations, absent prejudice to the defendant,

alcohol tests results can be admitted in a prosecution under 4511.19. Plummer, supra at

syllabus. In determining whether the State substantially complied with ODH regulations,

the trial court is in the best position to resolve questions of fact and evaluate the

credibility of the witnesses. State v. Williams, 82 Ohio App.3d 39, 610 N.E.2d

1188(1992); State v. Raleigh, supra.

       {¶14} As a result of the implementation of R.C. 4511.19, the legislature has

given the director of the Ohio Department of Health (“ODH”), rather than the courts, the

authority to determine which tests and procedures are generally reliable and therefore

admissible in a prosecution. The Ohio General Assembly has legislatively determined

that various alcohol determinative testing apparatuses and methods for testing are

generally reliable and admissible. Section 4511.19 of the Ohio Revised Code provides,

in pertinent part:

              (D)(1) In any criminal prosecution or juvenile court proceeding for a

       violation of division (A) or (B) of this section or for an equivalent offense,

       the court may admit evidence on the concentration of alcohol, drugs of

       abuse, or a combination of them in the defendant's whole blood, blood

       serum or plasma, breath, urine, or other bodily substance at the time of

       the alleged violation as shown by chemical analysis of the substance

       withdrawn within two hours of the time of the alleged violation.

                                           ***

              The bodily substance withdrawn shall be analyzed in accordance

       with methods approved by the director of health by an individual
Stark County, Case No. 2013CA00053                                                         7


       possessing a valid permit issued by the director pursuant to section

       3701.143 [3701.14.3] of the Revised Code.

       {¶15} In the case of State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303(1984),

the Supreme Court of Ohio held that R.C. 4511.19 represents a legislative

determination that certain breath testing devices are generally reliable. This

determination, the court explained, means that the statute has replaced the common

law foundational requirements for admissibility. The court also explained that the

foregoing passage of R.C. 4511.19 means that the legislature has delegated to the

Director of the Ohio Department of Health, not the courts, the discretionary authority to

determine which tests and procedures are generally reliable and thus admissible in a

prosecution under the statute. Therefore, the Vega court held, “an accused may not

make a general attack upon the reliability and validity of the breath testing instrument [.]”

Id. at 190, 465 N.E.2d 1303.

       {¶16} Since Vega, the Supreme Court of Ohio has repeatedly and consistently

held that, “[t]he admissibility of test results to establish alcoholic concentration under

R.C. 4511.19 turns on substantial compliance with ODH regulations.” Defiance v. Kretz,

60 Ohio St.3d 1, 3, 573 N.E.2d 32(1991). See, also, State v. French, 72 Ohio St.3d 446,

451, 650 N.E.2d 887(1995); State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d

902(1986). This holding recognizes that the General Assembly has legislatively

provided for the admission into evidence of alcohol test results, including breath and

urine tests, from tests conducted upon those accused of violating R.C. 4511.19, so long

as such tests were conducted in accordance with procedures adopted by the Director of

the Ohio Department of Health.
Stark County, Case No. 2013CA00053                                                            8


       {¶17} Appellant argues the trial court should have evaluated the admissibility

under the test set forth in Daubert v. Merrill Dow Pharmaceutical, Inc. 509 U.S. 579,

589, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993). In Daubert, the trial judge must perform a

“gate keeping” role to ensure that expert testimony is sufficiently (a) relevant and (b)

reliable to justify its submission to the trier of fact. In general terms, the reliability of an

expert's opinion depends upon (1) the validity of the underlying theory, (2) the validity of

the technique used to apply that theory, and (3) the proper application of the technique

on a particular occasion. In Daubert, the United States Supreme Court identified a

series of specific reliability inquiries that apply in the context of the “hard” or quantitative

sciences. These factors include (1) whether a theory or technique can be and has been

tested, (2) known error rates, (3) peer review and publication, and (4) general

acceptance in the field.

       {¶18} In State v. Luke, the Tenth District Court of Appeals observed,

              This legislative mandate for admissibility obviates the need for trial

       courts to determine admissibility based upon reliability of the processes

       and methods underlying the use of breath testing machines. It follows,

       then, that because the Daubert inquiry involves only determinations as to

       the reliability of the principles and methods upon which a particular

       scientific test result is based, the legislative mandate recognized in Vega

       forestalls the need for any Daubert analysis in cases such as the present

       one. That is why we agree with the holding of the Fifth Appellate District

       that, pursuant to Vega, “an attack on the accuracy and credibility of breath

       test devices in general is prohibited. Therefore, there is no need to
Stark County, Case No. 2013CA00053                                                         9


       determine the reliability of the machine under a Daubert * * * standard.”

       State v. Birkhold (Apr. 22, 2002), 5th Dist. No. 01CA104, 2002-Ohio-2464,

       ¶ 19.

10th Dist. Franklin No. 05AP-371, 2006-Ohio-2306, ¶24. The principles thus established

would have equal application to the analysis of any bodily substance, including urine.

       {¶19} In the case at bar, where the record of the suppression hearing contains

no evidence of noncompliance with any applicable regulation of the Ohio Department of

Health, evidence that the accused seeks to offer for the purpose of showing that the

machine was not in good working order on the date of his urine test, or the technician

could not testify concerning a potential rate for error is irrelevant to the admissibility of

the test result.

       {¶20} While the accused may not challenge the general accuracy of a

legislatively determined testing instrument, Butler could have challenged at trial the

accuracy of his specific test result. Columbus v. Day, 24 Ohio App.3d 173, 174, 493

N.E.2d 1002 (10th Dist. 1985); State v. Wang, 5th Dist. Delaware No. 2007CA090048,

2008-Ohio-2144, ¶12. Thus, the accused may attempt to show that something went

wrong with his test and consequently, the result was at variance with what the approved

testing procedure should have produced. Id. Additionally, the accused may attack the

test results pursuant to the rules of evidence and may also use expert testimony

regarding the weight to be given to the evidence. See generally State v. French, 72

Ohio St.3d 446, 1995–Ohio–32 and State v. Vega, 12 Ohio St.3d 185 (1984).

       {¶21} In the case at bar, the record of the suppression hearing contains no

evidence of noncompliance with any applicable regulation of the Ohio Department of
Stark County, Case No. 2013CA00053                                                        10


Health. , As a result, the trial court did not err in denying appellant's motion to suppress.

Butler's sole assignment of error is overruled.

       {¶22} The judgment of the Canton Municipal Court is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur

                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. JOHN W. WISE


                                               _________________________________
                                               HON. CRAIG R. BALDWIN



WSG:clw 0930
[Cite as State v. Butler, 2013-Ohio-4451.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
ALAN BUTLER                                       :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2013CA00053




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Canton Municipal Court is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. JOHN W. WISE


                                                      _________________________________
                                                      HON. CRAIG R. BALDWIN
