[Cite as State v. Michael,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-14-11

v.

BLAINE E. MICHAEL, OPINION

DEFENDANT-APPELLANT.

Appeal from Lima Municipal Court Trial Court No. 13TRC03666A-B

Judgment Affirmed

Date of Decision: October 14, 2014

APPEARANCES:

Andrew R. Bucher for Appellant

John R. Payne for Appellee Case No. 1-14-11

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Blaine Michael (“Michael”) brings this appeal

from the judgment of the Lima Municipal Court of Allen County, Ohio, finding

him guilty of operation of a motor vehicle while under the influence (OVI). For

the reasons that follow, we affirm the trial court’s judgment.

{¶2} On April 8, 2013, Michael was charged with two counts of OVI: (1)

operation of a motor vehicle while under the influence in violation of R.C.

4511.19(A)(1)(a); and (2) operation of a motor vehicle with a prohibited

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

was also charged with failure to keep an assured clear distance ahead, in violation

of R.C. 4511.21(A). The charges resulted from an accident-related traffic stop,

arrest, and a breath alcohol content test administered by Deputy Bruce Clayton

(“Deputy Clayton”) on the Intoxilyzer 8000, which occurred on April 7, 2013.

{¶3} On June 28, 2013, Michael filed a motion to suppress, requesting

suppression of multiple items of evidence, including results of the field sobriety

tests, breath alcohol content test, observations and opinions of the police officer,

and statements taken from or made by Michael. (R. at 16.) He requested a

hearing on the motion.

{¶4} The suppression hearing took place on September 16, 2013. Defense

counsel explained that Michael was “significantly limiting” the scope of his

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motion to suppress. (Hr’g Tr. (“Tr.) at 1:10-12, Sept. 16, 2013.) Therefore,

Michael asked to suppress only the breath alcohol content test on the basis that

there exist “no testing regulations in place for the officer” in the Ohio

Administrative Code and that Deputy Clayton was not properly qualified to

operate the Intoxilyzer 8000 on the date of the test. (Id. at 2-4.) Michael waived

all other suppression issues. (Id. at 2:10-16, see id. at 6:17-19.) The trial court

denied Michael’s motion to suppress.

{¶5} Following the trial court’s denial of his motion to suppress, Michael

entered a plea of no contest and was found guilty of operation of vehicle with a

prohibited concentration of alcohol in his breath, in violation of R.C.

4511.19(A)(1)(d). The remaining charges have been dismissed and are not at

issue on appeal. The trial court sentenced Michael to five days in the Allen

County Justice Center, suspended upon conditions; a fine of $500.00; and a

suspension of his driver’s license for a period of 365 days. The sentence has been

stayed pending this appeal.

{¶6} Michael asserts one assignment of error for our review.

THE TRIAL COURT ERRED WHEN IT DETERMINED THE OFFICER HAD COMPLIED WITH THE REQUIREMNTS [sic] OF OAC 3701-53-08.

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Summary of the Argument on Appeal

{¶7} On appeal Michael alleges that his breath test results should have been

excluded due to the fact that Deputy Clayton was not qualified to perform the

test.1 He relies on Ohio Adm.Code 3701-53-08, which states, in relevant part:

Individuals desiring to function as operators who apply for or are issued an operator access card under paragraph (C) of rule 3701-53- 09 of the Administrative Code, shall be subject to a proficiency examination once per calendar year conducted at the director’s discretion.2

(Emphasis added.) Ohio Adm.Code 3701-53-08(D).

{¶8} The evidence submitted in the trial court showed that Deputy

Clayton’s then-most-recent proficiency examination was completed on February

16, 2012. (Tr., Ex. C.) Michael asserts that, because more than twelve months

had passed since that examination as of the date of his breath test on April 7, 2013,

Deputy Clayton’s operator access card was invalid. He concludes that as a result

of the expired operator access card, Deputy Clayton was not qualified to perform

the test.

{¶9} This logic is based on other sections of the Ohio Administrative Code.

In particular, Ohio Adm.Code 3701-53-07 establishes the qualifications of

personnel performing a breath alcohol content test and requires the test to be 1 Michael does not challenge the trial court’s denial of his motion to suppress for lack of “testing regulations” in the Ohio Administrative Code, which was the other issue argued in the trial court. (See Tr. at 2:9-24.) 2 Because the parties do not ask us to interpret the effect of the phrase “subject to,” we express no opinion on whether this section requires the operators to take the proficiency examination or merely be available for such an examination whenever the director exercises its discretion.

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performed by a “senior operator” or an “operator.” Section 3701-53-09(D) and

(E) requires that operators of the Intoxilyzer 8000 possess an “operator access

card” and meet qualifications established by Ohio Adm.Code 3701-53-07 and

3701-53-08. Arguing that Deputy Clayton’s failure to timely take the proficiency

examination rendered his operator access card invalid and disqualified him from

performing tests on the Intoxilyzer 8000, Michael claims that his breath test was

not performed in compliance with the required regulations and its results should

have been excluded.

{¶10} The State rejects Michael’s contention that failure to comply with the

once-per-calendar-year-proficiency-exam requirement automatically disqualifies

an operator from performing breath tests on the Intoxilyzer 8000. (App’ee Br. at

11-12 (arguing that under Ohio Adm.Code 3701-53-09(E), “[p]ermits issued under

paragraph (D) of this rule shall not expire unless revoked by the director * * * or

are voluntarily surrendered.” (Emphasis added.), and under Ohio Adm.Code

3701-53-10 “[t]he director of health may [rather than shall] deny, suspend or

revoke the permit or operator access card of any permit holder or individual: * * *

(B) Who fails to comply with any of the provisions of rules 3701-53-01 to 3701-

53-09 of the Administrative Code.” (Emphasis added.).) Because the State failed

to raise this argument in the trial court, we do not address it here. See State v.

Peagler,

,

(1996) (“A court of appeals

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cannot consider the issue for the first time without the trial court having had an

opportunity to address the issue.”).

{¶11} Therefore, the sole issue before us is whether, in denying Michael’s

motion to suppress, the trial court properly found that Deputy Clayton satisfied the

proficiency examination requirement of Ohio Adm.Code 3701-53-08(D).3

Standard of Review

{¶12} An appellate review of the trial court’s decision on a motion to

suppress involves a mixed question of law and fact. State v. Burnside,

,

,

; State v. Norman,

,

(3d Dist. 1999). We will accept the trial court’s

factual findings if they are supported by competent, credible evidence because the

“evaluation of evidence and the credibility of witnesses” at the suppression

hearing are issues for the trier of fact. State v. Mills,

,

(1992); Burnside,

, at ¶ 8; Norman,

. But we must independently determine, without deference to the trial court,

whether these factual findings satisfy the legal standard as a matter of law, because

“the application of the law to the trial court’s findings of fact is subject to a de

novo standard of review.” Norman,

; Burnside, 2003-Ohio-

5372, at ¶ 8.

3 We do not address the effect of an operator’s failure to comply with this division of Ohio Adm.Code 3701-53-08, and whether it would warrant suppression.

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{¶13} Since the facts relevant to this appeal are not in dispute, the issue

before us presents a question of law and turns on the interpretation of the phrase

“once per calendar year.” See Brennaman v. R.M.I. Co.,

,

(1994) (holding that “[c]onstruction of a statute is not a question

of fact but a question of law”); Howell v. Ohio Dept. of Job & Family Servs., 7th

Dist. Belmont No. 08 BE 25,

(exercising a de novo review

for the “interpretation and application of an administrative code section” because

it “presents a question of law”). We review this issue de novo.

Interpretation of the Term “Calendar Year”

{¶14} At the time Michael filed his motion to suppress, the relevant

sections of the Ohio Adm.Code did not define the term “calendar year.”4 When a

term in a statute or a regulation is not defined, the courts attempt to interpret the

term and “arrive at the legislative intent.” Iams v. DaimlerChrysler Corp.,

,

,

(3d Dist.), ¶ 35, citing Bailey

v. Republic Engineered Steels, Inc.,

,

(2001),

superseded by statute on other grounds. If the language is clear and unambiguous,

it must be applied as written.

But if the language is subject to multiple

interpretations, it is ambiguous and courts turn to the legislative intent to ascertain

its meaning. Id.; State v. Siferd,

,

, 783

4 We note that one of the sections of the relevant Administrative Code Chapter 3701–53: Alcohol and Drug Testing; Permits for Personnel, has been recently amended by adding the definition of “calendar year.” See Ohio Adm.Code 3701-53-04(C).

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. Michael asserts that the term “calendar year” is ambiguous, and

that it is subject to two interpretations: (1) “twelve consecutive months,” as

defined by the 1-1-1 decision of the Eighth District Court of Appeals in Muczyk v.

Cleveland State Univ.,

,

(8th

Dist. 1996), or (2) “the period from January 1 to December 31 of any given year,”

as used by the trial court, which relied on the Ohio Supreme Court’s decision in

State ex rel. Gareau v. Stillman,

,

(1969).

Michael urges us to follow the reasoning of the Eighth District Court of Appeals.

{¶15} Courts use the same rules of construction for interpreting statutes and

administrative regulations. See McFee v. Nursing Care Mgt. of Am., Inc.,

,

,

. It is a well-settled law

in Ohio that words in a statute or a regulation “should be construed in their

ordinary and natural meaning, and be given the meaning ordinarily attributed to

them unless a different intention appears in the statute.” Gareau,

; accord State ex rel. Baroni v. Colletti,

,

,

, ¶ 18, quoting Morning View Care Ctr.–Fulton v. Ohio Dept. of

Human Servs.,

,

,

(“

‘The interpretation of statutes and administrative rules should follow the principle

that neither is to be construed in any way other than as the words demand.’ ”).

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{¶16} Using these principles, the Ohio Supreme Court held that “calendar

year” means “the period of time from January 1 through December 31.” Gareau,

(rejecting a contention that “such phrase merely means the

passage of 365 days”). Other Ohio courts followed this definition. See State v.

Patel, 5th Dist. Stark No. 2012CA00190,

(analyzing a

corresponding Section of Ohio Adm.Code, which concerns checks, controls, and

certifications for alcohol and drug testing instruments, Ohio Adm.Code 3701-53-

04); Dilacqua v. Dilacqua, 9th Dist. Summit No. 18244,

, *3

(Sept. 3, 1997), citing Black’s Law Dictionary, Revised Fourth Edition; Heuer v.

Heuer, 10th Dist. Franklin No. 92AP-1512,

, *5 (June 8, 1993);

Schon v. Natl. Tea Co.,

,

(7th Dist. 1969);

see also 1996 Ohio Atty.Gen.Op. No. 2-159 (defining “calendar year” for

purposes of R.C. 519.25 as the period of time from January 1 through December

31 and distinguishing it from the general term “year,” which is “flexible in

meaning with respect to the time when [the twelve consecutive months] should

start and stop”).

{¶17} We find that the Ohio Supreme Court’s definition better fits the

legislative intent than the definition adopted in the split decision5 of the Eighth

5 The separately concurring judge McMonagle recognized that the writing judge used an “alternative definition of the term ‘calendar year’ ” instead of “its plain meaning, January 1 through December 31.” Muczyk,

(McMonagle, J., concurring separately). Judge McMonagle concurred in the reasoning and the judgment because the plain meaning of the term was not a “viable alternative” in that case, as it would produce “absurd” results.

. The dissenting judge

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District Court of Appeals in Muczyk,

. We offer several

reasons for this conclusion. First, in 1969, the Ohio Supreme Court faced with a

controversy “around the meaning of the phrase ‘calendar year’ as used in Section

3513.191, Revised Code,” noted that the word “year” is general and “susceptible

of different meanings,” while the term “calendar year” is more specific and has “a

definite and common meaning as to the beginning and ending of the 365-day

period which constitutes a year.” Gareau,

. As if agreeing

with the ambiguity in the word “year,” the legislature enacted R.C. 1.44 in 1971,

defining the term as “twelve consecutive months.” The legislature did not define

“calendar year.”

{¶18} Second, the use of the term “calendar year” throughout the Revised

Code unambiguously indicates that the term has an ordinary and natural meaning,

which is the period from January 1 to December 31 of any given year. Without

defining it specifically, the legislature follows the term “calendar year” with a

number corresponding to the 365 or 366-day period of the Gregorian calendar.

See, e.g., R.C. 5751.53 (using specific terms “calendar year 2010,” “calendar year

2011,” “calendar year 2012,” etc. in the Taxation Code); R.C. 5165.19 (using the

term “calendar year 2003” in the context of Medicaid payments); R.C. 141.011

objected to the construction of the term “calendar year” in a manner contrary to its plain meaning, reasoning that “our function as a judiciary is to interpret the law as written, not rewrite it or change it to reach a desired result.”

(O’Donnell, J., dissenting). This judge cited Gareau,

, and Black’s Law Dictionary (6 Ed. 1990) 204, which defined “calendar year” as “the period from January 1 through December 31.”

.

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(using “calendar year 2001,” “calendar years 2002 through 2006,” and “calendar

year 2007” to establish salaries of elective state officers).

{¶19} Third, the definition adopted by us is consistent with the most recent

amendment in the Ohio Administrative Code. Section 3701-53-04, which

concerns requirements for “Instrument checks, controls and certifications” of the

machines used for alcohol and drug testing, recently defined a “calendar year” as

“the period of twelve consecutive months, as indicated in section 1.44 of the

Revised Code, beginning on the first day of January, and ending on the thirty-first

day of December.” Although Michael correctly asserts that this definition was not

in place at the time of his breath test and should not be used to determine Deputy

Clayton’s compliance with the proficiency exam requirement, this recent

amendment reveals the legislative purpose behind the Ohio Administrative Code’s

requirement that certain things be done every calendar year. Therefore, even if we

do not use the recent amendment to define “calendar year” in Ohio Adm.Code

3701-53-08(D), it is further proof that the legislature intended to give the term its

ordinary and natural meaning in Sections concerning Alcohol and Drug Testing.

{¶20} Fourth, other chapters of the Ohio Administrative Code define

“calendar year” as “January first through December thirty-first of a given year.”

See Ohio Adm.Code 3747-3-01 (Background Investigations--Development,

Construction, and Operation of a Disposal Facility); Ohio Adm.Code 109:6-1-01

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(Waste Treatment and Disposal Facilities); Ohio Adm.Code 3701-36-03 (Local

Health Districts); Ohio Adm.Code 5101:2-1-01 (Children Services Definition of

Terms). This further supports the reading of the term applied by the trial court in

this case, the Ohio Supreme Court, and multiple other Ohio courts.

{¶21} We thus hold that “calendar year,” as used in Ohio Adm.Code 3701-

53-08(D), means the period of time from January 1 through December 31.

Application to the Current Case

{¶22} As a consequence of our interpretation of the term “calendar year,”

we hold that the Ohio Administrative Code’s directive that requires operators of

the Intoxilyzer 8000 to “be subject to a proficiency examination once per calendar

year” was not violated in this case. See Ohio Adm.Code 3701-53-08(D). Deputy

Clayton was subject to a proficiency examination in 2012 and, pursuant to this

section of the Ohio Administrative Code, he had until the end of 2013 to “be

subject to” the 2013 exam requirement. We therefore reject Michael’s contention

that Deputy Clayton was not qualified to perform the breath analysis test on the

Intoxilyzer 8000 on April 7, 2013, for failure to comply with Ohio Adm.Code

3701-53-08(D).

{¶23} Because no other basis for suppression was raised on appeal, this

holding is dispositive of the case and we do not reach the argument raised by the

parties over whether the April 7, 2013 valid test on Michael satisfies the

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proficiency examination requirement of Ohio Adm.Code 3701-53-08(D). This

alternative reasoning, advanced in the trial court by the State and mentioned by the

trial court in its judgment entry, is not necessary to resolve the issues in this case.

{¶24} This opinion in no way addresses validity of Division (D) of the

Ohio Administrative Code Section 3701-53-08 or the requirements for operation

of the Intoxilyzer 8000. The narrow holding here concerns the definition of the

term “calendar year” in Ohio Adm.Code 3701-53-08(D) and the finding that

Deputy Clayton satisfied the proficiency exam requirement of once per calendar

year, as is currently required by this provision.

{¶25} Assignment of error is overruled.

Conclusion

{¶26} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Lima Municipal Court of Allen County, Ohio, is

therefore affirmed.

Judgment Affirmed

SHAW, J., concurs.

ROGERS, J., concurs in Judgment Only.

/jlr

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