[Cite as State v. McLeod,

.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : -vs- : : Case No. 2011-CA-22 MATTHEW MCLEOD : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Mount Vernon Municipal Court, Case No. 10TRC5894

JUDGMENT: Vacated and Remanded

DATE OF JUDGMENT ENTRY: April 19, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

P. ROBERT BROEREN, JR. TIMOTHY HUEY 5 North Gay Street, Ste. 222 1985 West Henderson Road, #204 Mount Vernon, OH 43050 Upper Arlington, OH 43220

SARAH M. SCHREGARDUS 492 City Park Avenue Columbus, OH 43215 [Cite as State v. McLeod,

.]

Gwin, P.J.

{¶ 1} Appellant, Matthew McLeod, appeals the April 22, 2011 judgment entry of

the Mount Vernon Municipal Court overruling his motion to suppress evidence.

{¶ 2} Appellee, the State of Ohio did not file a brief in this matter. Pursuant to

App.R. 18(C), in determining the appeal, we may accept appellant’s statement of the

facts and issues as correct, and reverse the judgment if appellant’s brief reasonably

appears to sustain such action. See State v. Rohrig, 5th Dist. No. 00 CA 39, 2001

WL336315 (Apr. 2, 2001), and Chowdhury v. Fitzgerald, 5th Dist. No. 96 CA 43,

1997WL219172 (Mar. 27, 1997). Therefore, we presume the validity of appellant’s

statement of facts and issues.

{¶ 3} At the evidentiary hearing on appellant's motion to suppress held April 12,

2011, the following facts were established.

{¶ 4} Trooper Samuel Criswell was traveling southbound on South Main Street

in Mount Vernon. He observed appellant's vehicle around 1:20 a.m. Trooper Criswell

stopped appellant’s vehicle, conducted an OVI investigation and arrested appellant.

Appellant was charged with Operating a Vehicle with a prohibited concentration of

alcohol in his breath in violation of R.C. 4511,19(A)(1)(d), as well as Operating a Vehicle

while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a). Trooper

Criswell, handcuffed appellant and placed him in the back of the cruiser at

approximately 1:31 a.m. The trooper left appellant unattended while the trooper talked

to the passenger in appellant’s car until approximately 1:34 a.m. Trooper Criswell then

transported appellant to the Knox County Sheriff's Office. Knox County, Case No. 2011-CA-22 3

{¶ 5} At the Sheriff's Office, after reviewing the BMV 2255 Form, appellant

agreed to submit to a breath test. He took the test at 1:51 a.m. and the results indicated

.120. According to Trooper Criswell, he testified that he began observing Mr. McLeod at

1:20 a.m. No testimony was presented that appellant was asked if he had placed

anything in his mouth before the initiation of the breath test.

{¶ 6} Appellant testified that after he was arrested and placed in the back of the

cruiser, he found a penny in his back pocket while the trooper was talking to the

passenger. Appellant placed the penny in his mouth by getting it out of his back pocket

with his hand that was handcuffed behind his back and placing the penny on the seat,

leaning over and picking up the penny with his mouth. He kept the penny in his mouth

until they arrived at the police station, at which time he spit the penny onto the floor of

the cruiser. The defense then submitted the BAC DataMaster Operator Guide and

rested.

{¶ 7} After the hearing, the trial court denied appellant’s motion. In its entry, the

court concluded that the penny appellant placed in his mouth would not have affected

the breath alcohol test.

{¶ 8} On October 3, 2011, appellant entered a plea of no contest to Operating a

Vehicle with a prohibited concentration of alcohol in violation of R.C. 4511.19(A)(1)(d).

The trial court found appellant guilty and imposed the following sentence: a fine of $500,

a three-year driver's license suspension to be terminated once he served a total of 180

days of the suspension, five years of community control, and he was required to

complete a 3-day Driver Intervention Program. The charge for violating R.C.

4511.19(A)(1)(a) was dismissed by the court. Knox County, Case No. 2011-CA-22 4

{¶ 9} It is from the trial court’s April 22, 2011 Journal Entry denying his motion to

suppress that appellant has appealed raising as his sole Assignment of Error,

{¶ 10} “I. WHERE, IN AN OVI PROSECUTION UNDER O.R.C. §

4511.19(A)(1)(D), THE TRIAL COURT FOUND THAT THE APPELLANT PLACED A

PENNY IN HIS MOUTH WITHIN TWENTY (20) MINUTES OF A BREATH TEST BEING

CONDUCTED, THE TRIAL COURT ERRED IN FINDING SUBSTANTIAL

COMPLIANCE WITH THE OHIO DEPARTMENT OF HEALTH REGULATIONS AND IN

NOT SUPPRESSING THE BREATH TEST RESULTS. O.R.C. § 4511.19 (D)(1)(A),

O.R.C. § 3701.143, O.A.C. 3701-53- 01, O.A.C. 3701-53-02, FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”

I.

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

and fact. State v. Burnside,

,

,

. 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,

,

,

; State v. Fanning,

,

(1982). Accordingly, a

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

evidence exists to support those findings. See

Dunlap, supra; State v.

Long,

,

(4th Dist. 1998); State v. Medcalf,

,

(4th Dist. 1996). However, once this Court has

accepted those facts as true, it must independently determine as a matter of law Knox County, Case No. 2011-CA-22 5

whether the trial court met the applicable legal standard. See

citing

State v. McNamara,

,

(4th Dist 1997); See,

generally, United States v. Arvizu,

,

,

(2002);

Ornelas v. United States,

,

,

(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

Moreover, due weight should be given “to inferences

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

,

.

{¶ 12} We therefore consider whether the facts in the instant case demonstrate

substantial compliance with the Department of Health regulations under a de novo

standard of review. State v. Burnside,

,

,

.

{¶ 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,

,

(1986); State v.

Morton, 12th Dist. No. CA98-10-131,

(May 10, 1999). Rather, if the

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

defendant, alcohol tests results can be admitted in a prosecution under 4511.19.

In

determining whether the state substantially complied with ODH regulations, the trial Knox County, Case No. 2011-CA-22 6

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

witnesses. State v. Williams,

, 610 N.E .2d 1188 (1982).

{¶ 14} In Bolivar v. Dick,

,

,

,

the Supreme Court noted,

R.C. 4511.19(D) states that any bodily substance collected for the

purpose of determining whether a person is in violation of the statute ‘shall

be analyzed in accordance with the methods approved by the director of

health * * *.’ Regulations promulgated by the Director of Health in Ohio

Adm.Code 3701-53-02(B) state in pertinent part that ‘[b]reath samples

shall be analyzed according to the operational checklist for the instrument

being used.’ Thus, the operational checklist, which is part of the BAC

Verifier Test Report Form (see Appendix A), provides the ‘methods

approved by the director of health’ for the operation of the BAC Verifier.

The first item on the operational checklist, which is part of the BAC

Verifier Test Report Form, states ‘Observe subject for twenty minutes prior

to testing to prevent oral intake of any material.” The Health regulations

require that a test subject not ingest anything for 20 minutes prior to

submitting to a Breathalyzer test. See Ohio Adm.Code 3701-53-02.

. State v. Raleigh, Licking App. No. 2007–CA–31,

,

, at ¶ 47-48.

{¶ 15} In the case at bar, the DataMaster Basic Operator Guide, admitted as

Defendant’s Exhibit A, does not limit “foreign substance” to “food, gum or tobacco”;

rather the manual states, in relevant part, Knox County, Case No. 2011-CA-22 7

a. Check mouth of subject for food, gum tobacco, or any other

foreign substance.

b. Observe subject for at least 15 minutes to be sure no food

or drink is ingested.

c. Record observation start time on Evidence Ticket if your

procedure requires same.

***

Id. at 5 (Emphasis added).

{¶ 16} This Court in State v. Karns 5th Dist. No. 97CA0002,

(July 21, 1998) previously held that the substantial compliance standard is not

applicable to the instant situation. In Karns, we held that the regulation is a bright line

rule-either the subject did or did not have something in his mouth during the twenty (20)

minute observation period. In that case, we held that because appellant had the

chewing gum in her mouth during the twenty (20) minute observation period, there had

not been compliance with the regulation. Therefore, appellant was not required to show

prejudice before the results were inadmissible. In Karns, we held that the determination

that such case scenario does not yield itself to a substantial compliance test is

buttressed by the fact that the language of the regulation itself prohibits the intake of

any material, not just material which may contain alcohol or otherwise may affect the

test results. Our holding comports with our previous decision in State v. Kirkpatrick 5th

Dist. No. 43-CA-87,

(June 1, 1988), in which we concluded “that the

twenty-minute observation period is mandatory and that there be no oral ingestion of Knox County, Case No. 2011-CA-22 8

any material during that observation period.” Id. at 8. Accord State v. Baldridge, 5th Dist.

No. 01-COA-01412,

; State v.

{¶ 17} In State v. Steele,

,

(1977), the Ohio

Supreme Court explained the reason for the twenty-minute observational period before

testing. It explained that the observational period is used to eliminate the possibility that

the test result is a product of anything other than the suspect's deep lung breath.

,

. The Court explained that since the “accuracy of the test results

can be adversely affected if the suspect either ingests material internally, by belching or

vomiting, the suspect must be observed” for twenty minutes to verify that no external or

internal material causes a false reading. State v. Douglas, 1st Dist. No. C-030897,

, citing Steele,

,

; State v.

Camden, 7th Dist. No. 04 MO 12,

. In Steele, the court

reasoned that once the trooper demonstrated it was highly improbable that the subject

ingested any item during the twenty-minute period, it was up to the defendant to

“overcome that inference” with proof that she had ingested some substance. Moreover,

ingestion has to be more than just “hypothetically possible.”

,

; see, accord, State v. Faykosh, 6th Dist. No. L-01-1244,

;

State v. Embry, 12th Dist. No. CA2003-11-110,

; State v.

Rennick, 7th Dist. No. 02 BA 19,

at ¶ 25; State v. Siegel,

,

(2000).

{¶ 18} In the case at bar, the trial court found,

that "foreign substances" as used in the DataMaster Basic

Operator's Guide means thing like "food, gum or tobacco,” i.e. things that Knox County, Case No. 2011-CA-22 9

are easily malleable or broken or cracked or crushed by the teeth, or that

dissolve in the mouth or otherwise breakdown or interact with saliva. It

does not include things like dentures, partial plates, caps crowns, gold

fillings, silver amalgam filling, coins, rocks, nails or marbles. Food can and

does breakdown into a multitude of minute particles that could interfere

with the operation of the BAC machine. Likewise, use of gum and or

tobacco increases the production of saliva which could result in a droplet

of saliva entering the BAC machine and interfering with its operation. The

Defendant has presented no expert testimony that presence of the penny

in the Defendant's mouth during the twenty-minute observation period, but

not during the time the test was being performed, had any effect on the

machine's operation.

{¶ 19} Under the facts of the case at bar, the determination of whether appellant

placed anything in his mouth during the twenty-minute observation period is a credibility

determination. We note also that prior to administering the test, there is no testimony

that appellant was asked if he had placed anything in his mouth during the twenty-

minute observational period. Appellant did testify that he had put a coin into his mouth

during this period.

{¶ 20} An appellate court's role in reviewing a trial court's ruling on a motion to

suppress is not to re-evaluate the evidence or the credibility of the witnesses, State v.

Mills,

,

(1992), but to determine

whether the trial court's application of the law to the facts, as the trial court found them

to be, is appropriate. State v. Williams,

,

, 1143- Knox County, Case No. 2011-CA-22 10

1144(1993). Here, the Court believed the testimony of appellant as the presence of the

coin in his mouth before the administration of the BAC test. Once appellant articulated

this objection to the BAC test, the burden shifted to the state to demonstrate the

presence of the coin had no effect on the test results. See State v. Siegel,

,

,

; State v. Baldridge, 5th Dist. No. 01-

COA-01412,

; Defiance v. Stafford, 3rd Dist. No. 4-88-01,

(Feb. 7, 1992), State v. Adams,

,

(1992). A

review of the record reveals that the state failed to present any evidence that the BAC

results were not prejudiced by the presence of the coin in appellant’s mouth during the

twenty-minute observation period. Based on the foregoing, we find as a matter of law

that the facts presented on appeal fail to meet the applicable legal standard and that the

trial court erred in not suppressing the BAC results. Knox County, Case No. 2011-CA-22 11

{¶ 21} Appellant’s sole assignment of error is sustained. We hereby vacate

appellant's conviction, reverse and remand this matter to the trial court for proceedings

not inconsistent with this opinion.

By Gwin, P.J., and

Hoffman, J., concur;

Farmer, J., dissents

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER

WSG:clw 0308 Knox County, Case No. 2011-CA-22 12

Farmer, J., dissents

Although I acknowledge our previous decisions in Karns and Baldridge cited

supra, I respectfully dissent from the majority's view. As noted by the majority in citing

the trial court's finding, the DataMaster Basic Operator's Guide excludes a "coin" as a

foreign substance. Because the Director of Health specifically adopts and approves the

DataMaster test, I would find such an approval specifically includes the definition of

"foreign substances" in the manual.

I would find a "coin" is not a foreign substance that would invalid the test and I

would deny the assignment of error.

________________________________

HON. SHEILA G. FARMER [Cite as State v. McLeod,

.]

IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : MATTHEW MCLEOD : : : Defendant-Appellant : CASE NO. 2011-CA-22

For the reasons stated in our accompanying Memorandum-Opinion, Appellant’s sole

assignment of error is sustained. We hereby vacate appellant's conviction, reverse and

remand this matter to the trial court for proceedings not inconsistent with this opinion.

Costs to appellee.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. SHEILA G. FARMER