Opinion
No. 85-1037
Decided July 16, 1986.
Criminal law — Motor vehicles — OMVI — Intoxilyzer calibration procedure complies with Director of Health's instruction, when.
CERTIFIED by the Court of Appeals for Franklin County.
Appellant, William H. Dickerson, was arrested and charged with two counts of operating a motor vehicle while under the influence of alcohol. Appellant's first charge alleged a violation of R.C. 4511.19(A)(3), the " per se" statute. Appellant's second charge alleged a violation of R.C. 4511.19(A)(1), the "under the influence" statute. Prior to trial the latter charge was dismissed and appellant pleaded no contest to the former.
After his arrest appellant was taken to the Clinton Township Police Station for an intoxilyzer test. The arresting officer calibrated the intoxilyzer machine used to test appellant before and after appellant's test. Both calibration results were within the plus or minus .005 tolerance prescribed by the regulations of the Ohio Department of Health.
The intoxilyzer used at the Clinton Township Police Station is maintained and calibrated by the Ohio State Highway Patrol. Calibrations are routinely run at that location both before and after each intoxilyzer test. A solution used for calibrating the machine is kept at breath temperature to ensure accurate calibration results. The container of calibration solution is stored in the refrigerator and the solution requires twenty to forty-five minutes to heat to breath temperature.
As a result of the large number of calibrations performed, and the time limitations involved in processing drunken driver arrestees, the State Highway Patrol in Clinton Township uses a time-efficient procedure for calibrating its intoxilyzer machine. A gallon container of the calibration solution is kept refrigerated at all times. Five hundred cc. of solution are drawn from the gallon container and placed in a bell jar simulator which contains a propeller, two thermometers and a thermostatically controlled heating element. The simulator is plugged into an electrical outlet to activate the heating element and propeller which keep the solution at breath temperature and properly mixed at all times. In order to calibrate the intoxilyzer the simulator jar is connected to a breath hose on the intoxilyzer. Vapor from the breath temperature calibration solution is then forced through the intoxilyzer yielding a printed test result. The test result must fall within the plus or minus .005 tolerance of the calibration solution. Once the calibration is completed, the simulator jar is disconnected from the intoxilyzer, but remains plugged into the electrical outlet to keep the solution at breath temperature.
The above-described procedure was in use at the time appellant was given an intoxilyzer test. Appellant's test revealed a .18 blood alcohol level.
Appellant filed a timely motion to suppress his intoxilyzer breath test results. On October 3, 1984, the trial court overruled appellant's motion and found him guilty as charged. Appellant was sentenced to three days in the Franklin County Jail, fined $150, and his driver's license was suspended for sixty days.
Appellant appealed to the Court of Appeals for Franklin County. The court of appeals affirmed the conviction and sentence. The court of appeals subsequently found its decision to be in conflict with the decision of the Court of Appeals for Clermont County in State v. Schell (1984), 13 Ohio App.3d 313, and certified the record of the case to this court for final review and determination.
Ronald J. O'Brien, city attorney, and David E. Tingley, for appellee.
Thomas M. Tyack Assoc. Co., L.P.A., and Mark A. Serrott, for appellant.
The sole question before this court is whether the intoxilyzer calibration procedure employed by the State Highway Patrol at the Clinton Township Police Station complies with the intoxilyzer calibration procedure issued by the Director of Health pursuant to R.C. 3701.143 and Ohio Adm. Code 3701-53-02(A) and (B)(2), and 3701-53-04(A). Directive No. 6 of Instruction No. 009 issued by the Director of Health on March 16, 1983 states, in pertinent part, that "[c]alibration solutions are to be stored in their original screw-top container, under refrigeration, while not in use." The controversy over whether or not this instruction was complied with turns on the question of whether the calibration solution is "in use" when it is in the simulator and not under refrigeration. Appellant contends that the solution is "in use" only when it is connected to the intoxilyzer breath hose during an actual calibration. Appellee maintains that the portion of the calibration solution which is maintained at breath temperature in the simulator is "in use" insofar as the general testing procedure is concerned.
R.C. 3701.143 provides that, "[t]he director of health shall determine, or cause to be determined, techniques or methods for chemically analyzing a person's * * * breath * * * in order to ascertain the amount of alcohol in a person's blood." The intoxilyzer has been approved as an instrument for testing a person's breath to measure the subject's blood alcohol concentration. Ohio Adm. Code 3701-53-02(B)(2). The Director of Health is further vested with the duty of issuing instructions for analyzing breath samples. Ohio Adm. Code 3701-53-02(A). To that end, Ohio Adm. Code 3701-53-04(A) provides that "[b]reath testing instruments must be calibrated * * * using methods and techniques * * * recommended by the manufacturer of the calibration instrument or the director of health." The Director of Health has outlined such calibration methods and techniques in Instruction No. 009 issued on March 16, 1983.
The purpose of Directive No. 6, as well as all the regulations and prescribed procedures for breath testing and calibration of breath testing equipment, is to ensure the most accurate test results possible. The procedure employed by the State Highway Patrol at the Clinton Township Police Station, that is, maintaining the calibration solution at breath temperature in a simulator, allows the intoxilyzer to be calibrated before and after each test, rather than once per week as is minimally required. Because cold solution must warm up from twenty to forty-five minutes before a calibration can be performed, such thorough testing would be impossible if the solution were refrigerated after each calibration according to appellant's interpretation of the regulations.
Ohio Adm. Code 3701-53-04(A) provides in pertinent part:
"Breath testing instruments must be calibrated no less frequently than once each week * * *."
Furthermore, as noted by the Court of Appeals for Franklin County herein, citing its own case, State v. Korte (Apr. 12, 1983), No. 82 AP-994, unreported, for authority, "a failure to use fresh solutions [for intoxilyzer calibrations] may * * * [result in] low readings which would favor the defendant." Thus, appellant in this case is unable to demonstrate that he was prejudiced by the state's calibration procedures.
Therefore, based on both the purpose and actual results of the intoxilyzer calibration procedure, we conclude that a calibration solution is "in use" for the purpose of Directive No. 6 of Instruction No. 009 while it is being maintained at breath temperature in the simulator jar. Accordingly, we affirm the decision of the court of appeals below.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.