Ohio Court of Appeals, 1999

State v. Riders, Unpublished Decision (6-24-1999)

Ohio Court of Appeals · Decided June 24, 1999 · Farmer, J.

Concurring Opinion

I concur with the disposition of assignments of error I and II by the majority but I choose to write separately in regard to assignment of error I. I am writing separately so as to make it clear that I would not be concurring with the disposition of assignment of error I had it not been for the testing of the last ten bottles in Batch 97220 in December of 1997, subsequent to the solution certification by the Director of Health in September of 1997. Pursuant to Revised Code 3701.143, the Director of Health shall determine techniques or methods for chemically analyzing a person's blood, urine, breath or other bodily substance in order to ascertain the amount of alcohol therein. The Director of Health has promulgated rules to help accomplish the purpose of this statute. However, the only administrative regulation which refers to calibration solutions used to test the accuracy of breath testing instruments is O.A.C. 3701-53-04(A) which reads: "[a]pproved evidential breath testing instruments shall be checked for calibration every seven days by a senior operator using a solution of ethyl alcohol approved by the director of health and using the calibration check list for the instrument being checked, as set forth in the Appendices (A) to (G) to this rule . . ." (Emphasis added)

As Judge Don McCauliffe, the trial court Judge in this matter, stated, "[t]his regulation does not specify the manner in which the instrument check solution is to be prepared or the manner in which the solution is to be certified by the Director of Health. However, based upon due process grounds, it is still necessary that sound scientific procedures are used to certify to law enforcement the amount of [ethyl] alcohol in each batch of solution." According to the testimony of Dr. Sutheimer (Transcript at page 82) sound scientific procedures require that at least six to eight bottles of this 1,800 bottle batch of solution be randomly selected and tested to determine the target value of the batch. In originally setting the target value of the batch, the manufacturer of the batch (Steifel) had only tested three bottles. The Department of Health had only tested four bottles after the batch was received from the manufacturer. Therefore, Dr. Sutheimer concluded that "[n]either the manufacturer nor the Department of Health had analyzed enough bottles to set a true target for batch number 97220" as of the September 30, 1997, date that the Director of the Department of Health certified the solution. Transcript at Page 55. The fact that the Department of Health did not find out until November 21, 1997, that Steifel had tested only three bottles in the batch when setting the target value makes the certification of the batch on September 30, 1997, by the Director of Health all the more disconcerting. Steifel had been stonewalling the Department of Health for some time, and instead of the Department of Health independently establishing a target value for the batch and/or holding up certification procedures on the batch until cooperation from Steifel could be obtained voluntarily or involuntarily through legal process, the Director of Health blindly certified the batch. Too much was and is at stake for the Director of Health to be careless or haphazard in certifying the testing solutions for the breath testing instruments.

Opinion of the Court

OPINION On January 3, 1998, appellant, Markus Riders, was charged with operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1) and (A)(3). On February 12, 1998 and April 13, 1998, appellant filed motions to suppress his breath test based on constitutional grounds and the state's failure to comply with the rules and regulations promulgated by the Ohio Department of Health in the administration of the breath test, including failure to properly approve the calibration solution used in his test. A hearing was held on April 27, 1998. By decision and journal entry filed May 18, 1998, the trial court denied appellant's motions. On June 30, 1998, appellant pled no contest to a violation of R.C. 4511.19(A)(3). The (A)(1) charge was dismissed. By journal entry filed June 30, 1998, the trial court found appellant guilty and sentenced him to thirty days in jail, twenty-seven suspended, and imposed a $300 fine plus court costs. Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY ADMITTING INTO EVIDENCE A CALIBRATION SOLUTION CERTIFICATE ISSUED ON BATCH NUMBER 97220, WHEN THAT CERTIFICATE WAS BASED ON INSUFFICIENT TESTING BY THE MANUFACTURER AND THE OHIO DEPARTMENT OF HEALTH.

II THE TRIAL COURT ERRED IN ALLOWING DR. SUTHEIMER TO TESTIFY AS TO THE RESULTS OF THE TESTING DONE SUBSEQUENT TO THE CERTIFICATION OF BATCH NUMBER 97220 SINCE THE TESTING WAS NOT PERFORMED BY OR OBSERVED BY DR. SUTHEIMER, AND THE DATE HE RELIED UPON WAS NOT ADMITTED INTO EVIDENCE.

IAppellant claims the trial court erred in admitting the calibration solution certificate for batch number 97220 because said certificate was based on insufficient testing by the manufacturer and the Ohio Department of Health. We disagree. Dr. Craig Sutheimer, deputy director and chief of the alcohol testing program for the Ohio Department of Health, testified regarding the certification of batch solutions. Despite his concerns of establishing "target values" by the manufacturer, Dr. Sutheimer opined batch number 97220 was properly certified. T. at 68-69. This issue has been addressed by this court in State v. David B. Sebach (September 25, 1998), Knox App. No. 97CA24, unreported, and State v. Saundra M. Miracle (September 25, 1998), Knox App. No. 97CA25, unreported, wherein this court upheld the results of the datamaster tests stating as follows: The Department of Health qualifies a batch of calibration solutions by using its own procedures and affirms that the testing samples fall within the manufacturer's target concentration value. Once the Department of Health makes that quality assurance determination, it is not necessary to know the manufacturer's procedures. Further, the Department of Health's five percent deviation standard is not per se unreasonable or unconscionable.

In light of our decisions in Sebach and Miracle, we find the trial court did not err in admitting the results of appellant's breath test. Assignment of Error I is denied.

IIAppellant claims the trial court erred in permitting hearsay testimony by Dr. Sutheimer and erred in relying on said testimony in its judgment entry. We disagree. Under cross-examination by defense counsel, Dr. Sutheimer testified about subsequent tests run on batch number 97220 by the manufacturer, Stiffel Research, at his insistence: A. Um, it's my opinion that that's the target value because in the first week of December, um, Stiffel Research tested additional bottles of batch 97220. I went to Stiffel, reviewed the data, um, on the 16th of December and the concentration developed, and again, that's really what, what is measured, uh, both originally and then after these additional testing. The original, the original testing that was done on three bottles indicated that there was 1.204 milligrams per milliliter in the solution. Uh, the subsequent testing with ten bottles now indicates it's 1.205 milligrams per milliliter, one in 1,200 parts different and both of these equate to a 0.099.

* * *

Q. Okay. Doctor, just so we can get back here, um, did you personally go to Stiffel Labs to review the data of the further testing that they performed in December of 1997?

A. Yes, I did.

Q. Okay. And as a result of that visit to Stiffel Labs, Stiffel Labs, were you able to determine, uh, whether the certificate as issued by the Department of Health was correct?
A. That visit allowed me to look at further analyses which corroborated the original BAC concentration and which were now more than necessary or more than appropriate as a number to set a true target.

T. at 59 and 62, respectively.

On direct examination by defense counsel, Dr. Sutheimer established he had previously been qualified as an expert pursuant to Evid.R. 702. Under Evid.R. 703, "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted into evidence at the hearing." Dr. Sutheimer's testimony established he personally went to Stiffel Research, observed the data and was satisfied with the conclusions. T. at 59, 62-69. We find such testimony did not violate any prohibitions of the hearsay rules (Evid.R. 801, 802) or the rules on opinion and expert testimony (Evid.R. 701, 702, 703). Assignment of Error II is denied.

The judgment of the Lancaster Municipal Court of Fairfield County, Ohio is hereby affirmed.

By Farmer, J. Wise, P.J. and Edwards, J. concur.

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