[Cite as State v. Lambert, 2013-Ohio-3589.]



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



STATE OF OHIO,                                :   APPEAL NO. C-120865
                                                  TRIAL NO. 11TRC-57873-A
         Plaintiff-Appellant,                 :

   vs.                                        :       O P I N I O N.

ROGER D. LAMBERT,                             :

         Defendant-Appellee.                  :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 21, 2013



John P. Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and Marva K.
Benjamin, Senior Assistant Prosecutor, for Plaintiff-Appellant,

Suhre & Associates, LLC, and Robert Healey, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
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FISCHER, Judge.


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

judgment granting defendant-appellee Roger Lambert’s motion to suppress the

results of a breath-alcohol test pursuant to Lambert’s arrest for operating a vehicle

while under the influence of alcohol or drugs (“OVI”) in violation of R.C. 4511.19(A).

Because we determine that the trial court erred in suppressing the results, we

reverse.

                       Factual Background and Procedural Posture

       {¶2}    In November 2011, Lambert was stopped by an Ohio State Highway

patrol officer after the officer observed Lambert’s vehicle swerve left of center. As a

result of the traffic stop, Lambert was placed under arrest for OVI. The officer then

took Lambert to Cincinnati Police District One where Lambert submitted to a breath-

alcohol test using an Intoxilyzer 8000 instrument. Lambert was charged, in part,

with operating a motor vehicle while under the influence of alcohol in violation of

R.C. 4511.19(A)(1)(a), and operating a motor vehicle with a prohibited concentration

of alcohol in his breath in violation of R.C. 4511.19(A)(1)(d).

       {¶3}    Lambert filed a motion to suppress all evidence stemming from his

arrest, including the results of his breath-alcohol test. Pertinent to this appeal,

Lambert argued in his motion to suppress that his test results were inadmissible

because: (1) the dry gas control test for the Intoxilyzer 8000 instrument on which he

was tested was not performed prior to and subsequent to every subject test, and (2)

an instrument certification was not made when the instrument was placed in service.

The trial court conducted a lengthy hearing on the motion, and, in addition to the




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arresting officer’s testimony, Michael Quinn, an employee of the Ohio Department of

Health (“ODH”), and Mary Martin, a program administrator for ODH, also testified.

       {¶4}    Quinn testified that he had conducted a certification of the instrument

used on Lambert on June 21, 2011, in Columbus, and that he had installed and had

placed the instrument in service on June 23, 2011, after the instrument had passed

an additional diagnostic test at District One. Martin testified in regards to the

instrument testing procedure. She testified that the instrument begins with an air

blank, then does a diagnostic, another air blank, the first dry gas control, another air

blank, the first subject sample, two more air blanks, the second subject sample,

another air blank, the second dry gas control, and finally an air blank. She also

testified that the ODH recently changed its terminology to “subject sample” instead

of “subject test.”

       {¶5}    The trial court concluded that the officer had had probable cause to

arrest Lambert for OVI, but the trial court suppressed the results of the breath-

alcohol test for failure to comply with ODH regulations. In suppressing the results,

the trial court determined that the dry gas control test for the Intoxilyzer 8000

instrument had not been performed prior to and subsequent to each subject test as

required by Ohio Admin.Code 3701-53-04. The trial court also determined that the

instrument certification had not been done in accordance with Ohio Admin.Code

3701-53-04 because Quinn had “calibrated” the instrument in Columbus, and

because “no calibration process” had occurred at the time the instrument had been

installed at District One.

       {¶6}    The city now appeals, arguing that the trial court erred by suppressing

Lambert’s breath-alcohol test results.

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                                   Standard of Review

       {¶7}   Appellate review of a trial court’s ruling on a motion to suppress

presents a mixed question of law and fact. We must accept the trial court’s findings

of fact if they are supported by competent and credible evidence. But we review de

novo the trial court’s application of the relevant law to those facts. State v. Burnside,

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

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

filing 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 at ¶ 24; State v. Booth, 1st Dist. Hamilton No. C-070184, 2008-Ohio-1274,

¶ 7. 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.

                         Certification of the Intoxilyzer 8000

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

when it suppressed the results of Lambert’s breath test on the ground that the

certification of the Intoxilyzer 8000 instrument must be done at the time and

specific location where the instrument is installed and placed in service in

accordance with Ohio Admin.Code 3701-53-04.

       {¶10} Ohio Admin.Code 3701-53-04(D) provides that “[a]n instrument check

or certification shall be made * * * when a new evidential breath testing instrument is

placed in service or when the instrument is returned after service or repairs, before

the instrument is used to test subjects.”




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       {¶11} In State v. Logeman, 1st Dist. Hamilton No. C-070109, 2007-Ohio-

6340, this court interpreted nearly identical language in former Ohio Admin.Code

3701-53-04(B), which stated “[a]n instrument check shall be made * * * when a new

evidential breath testing instrument is placed in service * * *, before the instrument

is used to test subjects.” This court determined in Logeman that “[t]he language of

Ohio Admin.Code 3701-53-04(B) itself indicates that compliance may be

demonstrated upon a showing that the machine had been checked ‘before the

instrument is used to test subjects.’ It is therefore apparent that the requirement

regarding initial testing * * * is to ensure calibration before the machine is used for

evidentiary purposes.” Id. at ¶ 22.

       {¶12} In this case, the plain language of Ohio Admin.Code 3701-53-04(D)

does not indicate that the certification must be performed at the location and time of

the installation, as the trial court held. Moreover, similar to the code section at issue

in Logeman where compliance could be demonstrated by showing that the

instrument was checked before testing, Ohio Admin.Code 3701-53-04(D) requires

instrument certification to be performed on new, serviced, or repaired instruments

before the instruments are used for testing.

       {¶13} The instrument used to test Lambert was certified in June 2011, prior

to its use on Lambert in November 2011. Although Quinn conducted a certification

of the instrument in Columbus, when he installed and placed the instrument in

service two days later at District One, the instrument passed an additional diagnostic

test to ensure that it was working properly. No evidence was presented to indicate

that the machine was serviced or repaired prior to November 2011. Therefore, we

determine that the city has established, at a minimum, substantial compliance with

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Ohio Admin.Code 3701-53-04(D), and Lambert does not argue that he was

prejudiced by anything less than strict compliance. See Burnside, 100 Ohio St.3d

152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. Therefore, the trial court erred in

granting Lambert’s motion to suppress on this basis.

       {¶14} Consequently, we sustain the city’s first assignment of error.

                               Dry Gas Control Test

       {¶15} The city argues that the trial court erred when it suppressed Lambert’s

test results based upon the failure to conduct a dry gas control test prior to and after

each breath sample.

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

instrument must “automatically perform a dry gas control test before and after every

subject test * * *.” This court recently held in Cincinnati v. Nicholson, 1st Dist.

Hamilton No. C-120332, 2013-Ohio-708, ¶ 11, 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.” In reaching this conclusion, this court agreed with the reasoning of

the Twelfth Appellate District that “there is a single ‘subject test’ that is comprised of

two different breath samples.” Nicholson at ¶ 10, relying on State v. Kormos, 2012-

Ohio-3128, 974 N.E.2d 725, ¶ 16 (12th Dist.).

       {¶17} Lambert nevertheless argues that Nicholson is distinguishable because

the court in that case did not have the benefit of the Intoxilyzer 8000 manual

published by the ODH, which uses labels such as “subject test one,” “subject test

two,” and “second subject test.” Assuming that the Nicholson court did not have the

Intoxilyzer 8000 manual as part of its record, which is not clear from the decision

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itself, the Nicholson court nevertheless considered ODH’s use of the labels “Subject

Test 1” and “Subject Test 2” as they were used in the “Subject Test Report.”

Moreover, Martin testified that ODH now uses the label “sample” instead of “test” on

its test reports, consistent with our decision in Nicholson.        Thus, we cannot

distinguish Nicholson on this basis.

       {¶18} Lambert further argues that Nicholson is distinguishable because the

plain language of Ohio Admin.Code 3701-53-04(B) provides that the dry gas control

test must be performed before the “subject test,” and Martin testified that the

Intoxilyzer 8000 procedure begins with an air blank and a diagnostic, and not a dry

gas control test. Lambert relies on the definition of “subject test” in Nicholson where

the court determined that a “subject test” means running the Intoxilyzer 8000

instrument on a single subject. Nicholson at ¶ 10. Thus, Lambert argues that the

evidence showed that the dry gas control test was not the first step in his entire

testing procedure, or “subject test,” as required by Ohio Admin.Code 3701-53-04(B).

       {¶19} Lambert’s argument ignores that the same testing procedure was used

for the instrument in Nicholson as was used in this case. Moreover, in Nicholson,

this court determined that a “subject test” is “comprised of two different breath

samples.” Id. Lambert does not dispute that the dry gas control test was performed

before and after his two different breath samples. Thus, we cannot distinguish

Nicholson on this basis either. We determine that the city substantially complied

with Ohio Admin.Code 3701-53-04(B), and that Lambert fails to argue or show that

he was prejudiced by anything less than strict compliance. See Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. Thus, the trial court erred in

granting Lambert’s motion to suppress on this basis as well.

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       {¶20} We sustain the city’s second assignment of error.

                                     Conclusion

       {¶21} Because we sustain both of the city’s assignments of error, we reverse

the judgment of the trial court granting Lambert’s motion to suppress. The cause is

remanded for further proceedings consistent with this opinion and the law.

                                                Judgment reversed and cause remanded.


HILDEBRANDT, P.J., and DINKELACKER, J., concur.



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




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