         [Cite as State v. Richard, 2011-Ohio-6631.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-110128
                                                       TRIAL NO. 10TRC-36879B
        Plaintiff-Appellant,                       :
                                                       O P I N I O N.
  vs.                                              :

JULIE M. RICHARD,                                  :

    Defendant-Appellee.                            :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 23, 2011


John P. Curp, City Solicitor, Charles A. Rubenstein, Acting City Prosecutor, and
William T. Horsley, Assistant City Prosecutor, for Plaintiff-Appellant,

Matthew T. Ernst, for Defendant-Appellee.




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




D INKELACKER , Presiding Judge.

       {¶1}     Defendant-appellee Julie Richard was arrested for and charged with

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

prohibited breath-alcohol content under R.C. 4511.19(A)(1)(d).        The trial court

granted Richard’s motion to suppress the results of an Intoxilyzer test, and the state

has appealed under Crim.R. 12(K). We reverse the trial court’s decision granting the

motion to suppress and remand the case to the trial court for further proceedings.

       {¶2}     The record shows that Cincinnati Police Specialist Ryan Jones

stopped Richard for speeding. After having her perform field sobriety tests and take

a portable breath test, he arrested her for driving under the influence of alcohol and

took her to the police station.

       {¶3}     Specialist   Jones    observed   Richard   for   20   minutes   before

administering a breath test using the Intoxilyzer 5000 to ensure that she did not

ingest anything.    The first time he administered the breath test, the machine

reported an invalid sample.       Specialist Jones then waited three more minutes and

administered the test again. The second test produced a valid sample that showed

that Richard had a breath-alcohol level of .137 grams of alcohol per 210 liters of

breath.

       {¶4}     Richard moved to suppress the results of the breath test.         She

contended that Specialist Jones had failed to follow Ohio Department of Health

regulations. Specifically, she argued that the Intoxilyzer 5000 operator’s manual

stated that the operator should wait an additional 20 minutes after an invalid sample

to exclude the possibility of mouth alcohol contaminating the sample.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}     The trial court granted the motion to suppress. It stated that “[t]his

court finds that the machine operator did not follow the operational checklist with

regards to the ‘invalid sample’ and as such the State’s proof as to the breath test is

unreliable. For that reason such result is excluded from evidence in this case.” This

appeal followed.

       {¶6}     In its sole assignment of error, the state contends that the trial court

erred in granting Richard’s motion to suppress. The state argues that it is only

required to show substantial compliance with the pertinent Ohio Department of

Health regulations, not the operator’s manual’s recommendations. This assignment

of error is well taken.

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

law and fact. We must accept the trial court’s findings of fact as true if competent,

credible evidence supports them. But we must independently determine whether the

facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71, ¶8; State v. Kraus, 1st Dist. Nos. C-070428 and C-

070429, 2008-Ohio-3965, ¶7.

       {¶8}     The Ohio Supreme Court has held that courts should apply a burden-

shifting analysis when determining whether the results of a breath test are

admissible. First, the defendant must challenge the admission of the test by filing a

motion to suppress.       The burden then shifts to the state to show substantial

compliance with Ohio Department of Health regulations. If the state meets that

burden, a rebuttable presumption arises that the test results are admissible.

Burnside, supra, at ¶24; State v. Booth, 1st Dist. 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, supra, at ¶24.



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       {¶9}    Ohio Admin. Code 3701-53-02(A)(1) lists the Intoxilyzer 5000 as an

approved breath-testing instrument. Subsection (D) of the same regulation requires

law enforcement officials to follow a breath-testing machine’s operational checklist

when administering a breath test. Booth, supra, at ¶8.

       {¶10}   The operational checklist for the Intoxilyzer 5000 requires an officer

to observe “subject for twenty minutes prior to testing to prevent oral intake of any

material.” The purpose of this observation period is to ensure that the suspect does

not ingest any material or regurgitate material internally that may affect the results

of the test. Kraus, supra, at ¶24; Booth, supra, at ¶9. The test result should not be

the result of anything other than the suspect’s deep lung breath. Booth, supra, at ¶9.

       {¶11}   The parties do not dispute that Specialist Ryan observed Richard for

20 minutes before obtaining the first, invalid sample. The trial court found that

Specialist Ryan had not substantially complied with the requirements of Ohio

Admin. Code 3701-53-02 because he had failed to observe Richard for an additional

20 minutes before obtaining the second sample. We disagree.

       {¶12}   The operating manual for the Intoxilyzer 5000 recommends waiting

an additional 20 minutes after receiving an invalid sample.                  But this

recommendation in the manual does not rise to the level of a department of health

regulation. See State v. Massie, 2nd Dist. No. 2007 CA 24, 2008-Ohio-1312, ¶20;

State v. Hayes, 9th Dist No. 04CA0105-M, 2005-Ohio-6607, ¶16. The manual and

the operational checklist do not contain the same language.

       {¶13}   Specialist Ryan observed Richard for more than 20 minutes prior to

the administration of the first test. In that time, Richard did not orally ingest or

regurgitate anything. Nothing in the record suggests that the first test produced an

invalid sample due to the presence of mouth alcohol. Specialist Ryan testified that



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                     OHIO FIRST DISTRICT COURT OF APPEALS



the invalid sample was likely due to insufficient breath. He administered the second

test three minutes later, and during that time Richard did not ingest anything. On

the second test, the sample was valid. Under the circumstances, we hold that the

police officer substantially complied with the Ohio Department of Health

regulations. See Hayes, supra, at ¶17-18.

       {¶14}   Further, Richard did not present any evidence to show that she was

prejudiced by the lack of strict compliance. The purpose of the observation rule is to

provide evidence that the defendant did not ingest or regurgitate some material that

would produce an inaccurate test result.            Ingestion has to be more than

hypothetically possible. Testimony from law enforcement officers that a defendant

did not ingest or regurgitate anything shifts the burden to the defendant to

affirmatively show that he or she did. Booth, supra, at ¶12. Richard failed to meet

that burden.

       {¶15}   Consequently, we hold that the trial court erred in granting Richard’s

motion to suppress the results of the breath test. We sustain the state’s assignment

of error, and remand the case for further proceedings.

                                                Judgment reversed and cause remanded.


H ENDON and C UNNINGHAM , JJ., concur.


Please note:
       The court has recorded its own entry this date.




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