Opinion
No. 93-08-TRC-4140.
Decided January 14, 1994.
Steven M. Runge, City Prosecutor, for plaintiff.
Robert W. Rettich III, for defendant.
This cause came on before the court pursuant to defendant Joseph Lewis's motion to suppress the results of the BAC Data Master test conducted at the Springboro Police Department. Defendant alleges that the department has not conducted the required RFI survey in accordance with the rules and regulations promulgated by the Ohio Department of Health. Among other grounds, the defendant alleges that the machine has been moved for repairs, surveys have not been timely taken, and two hand-held radios were not utilized in performing the new surveys.
From the evidence presented, the court finds that tests were performed by senior operators possessing a permit from the state of Ohio. RFI surveys were conducted on August 20, 1993 and August 24, 1993. The surveys were conducted by Officers Delinger and Hershbach. The court further finds that the location of the machine is diagrammed, and tests are conducted using one portable radio with specific wave bands. There are eight different vectors which are diagrammed, each being thirty feet distant.
The court further finds that the Data Master was moved on two different occasions, once in 1991 to send to the manufacturer for repairs, and on a second occasion in 1993 to replace carpet. The machine was replaced in the exact location in the same room on both occasions. The court further finds there is a permanent mark on the table where the Data Master was located so that it could be exactly replaced in its prior positioning. The shelf on which the Data Master machine is located is affixed to the wall and has not been moved.
The requirements for radio frequency interference ("RFI") testing are found in Ohio Adm. Code 3701-53-02, a regulation promulgated by the Ohio Department of Health. The most recent modifications to the regulation were effective May 5, 1990. The types of machines that are subject to RFI testing are found in Ohio Adm. Code 3701-53-02(A)(1) to (A)(3) and (A)(5) to (A)(7). An RFI survey must be performed by a senior operator in accordance with specific directions found in Appendix H to the regulation.
Appendix H requires two operators and two hand-held radios to properly test a breathalyzer unit for RFI. The senior operator remains with the breathalyzer unit with one radio on, and the second operator approaches from thirty feet away on each of eight axes on a grid while keying the second radio. Any RFI is marked with an "X" on the diagram. If the radios are capable of multiple-band transmissions, each band is to be tested, using a separate form for each band. This includes mobile radios used in police vehicles if they can be parked within thirty feet of the machine. The radio frequency bands are set forth in Ohio Adm. Code 3701-53-02(C)(2)(c) as HF, VHF, and UHF.
There is a plethora of case law, both reported and unreported, on the effect of RFI on breathalyzer test results in prosecutions for DUI. All cases involve motions to suppress by defendants for alleged failures on the part of law enforcement authorities to comply with the testing procedures set forth by the Ohio Department of Health. The bottom-line standard for an RFI survey is "substantial compliance" with the Department of Health regulations. This standard was originally set forth in State v. Plummer (1986), 22 Ohio St.3d 292, 22 OBR 461, 490 N.E.2d 902, a case which involved a urine-alcohol test administered under Ohio Adm. Code 3701-53-05. The Plummer court, in discussing the Department of Health regulations, stated that "there is leeway for substantial, though not literal, compliance with such regulations." Therefore, absent a showing of prejudice to a defendant, a urine-alcohol test administered in substantial compliance with Ohio Adm. Code 3701-53-05 was admissible in a prosecution under R.C. 4511.19.
This substantial-compliance standard has since been adopted in cases involving breathalyzer testing under Ohio Adm. Code 3701-53-02. The standard is addressed in the case law in various contexts, including the initial RFI survey, whether radios were in use in the RFI-affected zone during conducting of a subject test, and after a machine has been moved or serviced, radio frequencies have been changed, or as otherwise noted under Ohio Adm. Code 3701-53-02(C)(2)(a) to (f). An analysis follows.
Initial Survey — Radios Used and Area Tested
It is clear that the state has the ultimate burden of proof or persuasion as to the facts necessary to show a breathalyzer test was done in accordance with established law. State v. McCloy (Oct. 10, 1984), Hamilton App. Nos. C-830965, C-830966 and C-830967, unreported, 1984 WL 7000. In cases involving allegations that two hand-held radios were not used to complete the RFI survey, substantial compliance has not been found. State v. Morehead (Aug. 8, 1990), Hamilton App. No. C-890534, unreported, 1990 WL 112268 (state failed to meet burden of RFI compliance; RFI survey and testimony did not reflect that two operators and two radios were used as mandated by Ohio Adm. Code 3701-53-02).
A good explanation of why two operators and two radios are required is found in the unreported Fifth District case of State v. Laivins (Apr. 25, 1989), Delaware App. No. 88-CA-35, unreported, 1989 WL 47926, in which the State Highway Patrol electronic technician admitted that he did not follow the instructions in Ohio Adm. Code 3701-53-02. He did not use two radios and did not begin thirty feet away on all axes on the grid. The trial court found such noncompliance to be "minor and inconsequential" with no prejudice to the defendant; however, this ruling was reversed on appeal.
The appellate court in Laivins found the admission that only one radio was used to test for RFI to be "critical." The court specifically rejected the state's argument that substantial compliance was demonstrated because two radios were not required, as the BAC Verifier in question had an internal RFI detector, stating as follows:
"The State should persuade the Director of Health to rewrite his regulations if this result is desired. The purpose of the RFI survey is to `confirm' the operation of the internal detector. The purpose of the second radio is to remain with the instrument being tested to receive transmissions. Without the second radio by the machine to receive signals from the first radio, there is no way to know for sure that the radio is actually transmitting. Furthermore, since the object of the test is to determine whether the BAC verifier's internal detector is functioning properly, it is anomalous to use the detector to test itself. If an RFI survey could be conducted accurately in that manner, we presume the Director would amend his regulations to say so. The fact that the machine aborts a test does not ensure that the BAC detector is working properly." Laivins at 7-8.
Laivins was later relied upon by the Tenth District Court of Appeals in State v. Asman (1989), 63 Ohio App.3d 535, 542, 579 N.E.2d 512, 516-517, the court noting that the second radio serves to test whether the first radio is active and generating radio frequency energy at the angle and direction intended, which the internal detector does not do, and that the second radio serves to test the proper operation of the internal detector itself. In Asman, only one radio was used and the distance from the machine tested was only as far as the room would allow along the eight axes, indicated in the opinion as seven to twenty-four feet instead of the required thirty feet.
The fact that a specific breathalyzer unit may have an internal detector for RFI is not sufficient to displace the RFI testing requirements under Ohio Adm. Code 3701-53-02. In State v. Witten (1990), 67 Ohio App.3d 135, 586 N.E.2d 203, the trial court determined that even though there was noncompliance with RFI testing procedures, the internal device would stop a test in the event of RFI. The appellate court held this was error and it was not the trial court's prerogative to substitute the physical features of a BAC Verifier for the RFI survey requirement. Id. at 140, 586 N.E.2d at 206. Likewise, in State v. Bennett (1990), 66 Ohio App.3d 595, 585 N.E.2d 897, the breathalyzer printout indicated "no RFI present." The appellate court found this was insufficient to fulfill the requirements promulgated by the Ohio Department of Health under Ohio Adm. Code 3701-53-02.
Other infractions in the initial RFI survey have also resulted in findings of no substantial compliance. In Laivins and Asman, for instance, the required distances were not tested along all eight axes, in addition to only one radio being used. The similar facts garnered a finding of no substantial compliance in Columbus v. Crumbley (Aug. 29, 1989), Franklin App. Nos. 89AP-171 and 89AP-172, unreported, 1989 WL 99440. In Columbus v. Gutai (Sept. 19, 1989), Franklin App. Nos. 89AP-81 and 89AP-82, unreported, 1989 WL 107568, two radios were used, but seven of eight axes were not tested from the proper distance. Id. An expert testified for the defendant that there could have been interference in the areas not tested. Therefore, the appellate court found that the trial court was justified in concluding that the area was not necessarily free of radio interference and in suppressing the test results. Id. See, also, Columbus v. Soltesz (Sept. 21, 1989), Franklin App. Nos. 89AP-83 and 89AP-84, unreported, 1989 WL 109268 (same result); State v. Ondecker (Aug. 27, 1990), Stark App. No. CA-8095, unreported, 1990 WL 125478 (no substantial compliance where no testing on all required axes and some frequencies not tested).
Substantial compliance was found, however, in State v. Harris (Jan. 19, 1993), Fayette App. No. CA92-04-010, unreported, 1993 WL 7903. The RFI survey in question was conducted using two frequencies, one used by the Washington C.H. Police Department and one used by the Fayette County Sheriff's Department. The survey was tested on eight different axes, using two hand-held radios, at the proper distances as much as possible considering the layout of the building. The defendant's motion to suppress was therefore overruled. Substantial compliance was also found in State v. Williams (1992), 82 Ohio App.3d 39, 610 N.E.2d 1188, where two radios were used for each of two bands used and the operator alternately keyed each radio while walking the axes on the grid. Conflicting expert testimony was heard as to whether this was sufficient, and the appellate court found it was within the trial court's discretion as to which testimony to rely on. Id. at 40-41, 610 N.E.2d at 1189.
Radios in Use During Testing of Defendant/Frequencies Not Tested
A separate group of cases deals with allegations that certain frequencies were not tested by a police department utilizing a breathalyzer or that radio transmitters were in use within thirty feet of the machine at the time the subject test was conducted. Appendix H requires that if multiple bands are used, each band is to be tested for RFI. See State v. Martin (1991), 61 Ohio Misc.2d 448, 579 N.E.2d 808 (substantial compliance at a minimum would require testing of each band and testing at highest wattage for any frequency in use in any particular band; substantial compliance is mandatory and is a threshold question).
Likewise, Ohio Adm. Code 3701-53-02(C)(1) requires that radio transmitters "shall not be used within any RFI-affected zone during conduct of a subject test or a calibration check. No radio transmitting antennae that have not been subjected to an RFI survey shall be used within thirty feet of the breath testing instrument during conduct of a subject test or calibration check."
In State v. McCloy, supra, it was found that radios were transmitting within the prohibited distance from the testing instrument during the defendant's test; therefore, the trial court was justified in suppressing the results of the defendant's breath test. Two similar challenges have failed in the Second District. In State v. Day (1990), 67 Ohio App.3d 325, 586 N.E.2d 1190, the defendant was taken by a State Highway Patrol officer to the Miami Township Police Department for testing. Their instrument had not been tested for frequencies used by the state police; however, the court found that the state officer had turned off both his cruiser radio and his hand-held radio until testing was completed. Likewise, in State v. Adams (1992), 73 Ohio App.3d 735, 598 N.E.2d 176, the defendant failed to show that frequencies used by the Ohio State Highway Patrol were transmitted within thirty feet of the testing instrument during the time interval within which his test was performed. The defendant also failed to introduce any evidence that radios were transmitting in violation of the regulation in State v. Brenner (July 30, 1990), Butler App. No. CA 89-09-127, unreported, 1990 WL 107319. The court does not address the other specifics of the RFI survey in the Brenner case.
Requirement of a New RFI Survey
Ohio Adm. Code 3701-53-02(C)(2) sets forth the circumstances under which a new RFI survey is required:
"(2) A new RFI survey shall be conducted when
"(a) The location of the breath testing instrument, when used for testing, is moved more than one foot in any direction;
"(b) The instrument's axis is changed;
"(c) The frequency band of the radio transmitting equipment, as defined by the chart set forth in this paragraph, is changed; [chart shows HF as 3 to 30 mH; VHF as 30 to 300 mH; and UHF as 300 to 3000 mH]
"(d) The radio transmitting equipment's rated output power is changed;
"(e) Any electronic component of the instrument is changed, other than replacement of parts with original equipment replacement parts or factory-authorized replacement parts meeting the same specifications as the original equipment parts; or
"(f) A new breath testing instrument is placed into service."
The Supreme Court of Ohio has very recently construed the meaning of Ohio Adm. Code 3701-53-02(C)(2)(a) and (e) in State v. Yoder (1993), 66 Ohio St.3d 515, 613 N.E.2d 626.
The Yoder syllabus holds that Ohio Adm. Code 3701-53-02(C) does not require a new RFI survey when the breath-testing device is moved for maintenance and repair of minor parts and then is returned to its original testing location and the replacement components meet specifications enumerated in Ohio Adm. Code 3701-53-02(C)(2)(e). The court construed the regulation by focusing on the location of the machine when used for testing. Id., 66 Ohio St.3d at 518, 613 N.E.2d at 629. In other words, mere movement of the machine is not sufficient to require a new RFI survey if the machine is placed back in the same position it was in prior to being moved. If the testing location of the machine is changed, a new survey would be required. Likewise, a new survey would be required if an electronic component, other than original replacement parts or factory authorized parts meeting the same specifications as the original equipment parts, is replaced. Id. The court specifically noted that the Department of Health must have contemplated movement for maintenance and replacement of minor parts. Id.
The court was unable to locate any Twelfth District cases subsequent to Yoder. A recent Second District case was located which interprets Yoder. State v. Breeze (1993), 89 Ohio App.3d 464, 624 N.E.2d 1092. The court found compliance with Ohio Adm. Code 3701-53-02(C)(2)(a) where the breath-testing unit was returned to its original location, with no allegation of any change in the machine's axis, after repairs had been made. However, the Second District affirmed the trial court's suppression of the breath-test results based on noncompliance with Ohio Adm. Code 3701-53-02(C)(2)(e).
The Second District utilized a strict-compliance standard with the literal requirements of this regulation and found that the state failed to authenticate or certify the work order for the repairs on the machine as a public record, nor did the state qualify the hearsay statement in the work order as an exception to the hearsay rule. The statement at issue was contained in a work order signed by the repair technician, stating in relevant part that "either factory specified original components or authorized replacement components" were used in the repair of the instrument in question. The state had a police officer read this portion of the work order into the record after having the officer acknowledge that it was part of the records of the instrument in question. No official police record or other exhibit was offered by the state for authentication or as proof of compliance with the Ohio Administrative Code regulation.
The court found that the testimony by the officer as to the statement contained in the preprinted form signed by the technician did not meet the requirement contained in the Ohio Administrative Code regulation, further stating that compliance with Ohio Administrative Code procedures "must not be presumed by the trial court" and that "a failure to comply with the literal requirements of OAC 3701-53-02(C)(2)(e) requires the suppression of breath test results." Breeze, supra.
Application to State v. Lewis
If an RFI survey was not performed with two hand-held radios prior to Lewis's being tested, a finding of no substantial compliance with the Ohio Administrative Code regulation would justify suppression of his breath-test results. The internal detector device of the machine is not a substitute for the requirement of two radios as noted above.
The defendant's allegations in his motion to suppress as to the necessity of a repeat RFI survey after movement of the machine are immaterial after the Yoder decision by the Supreme Court, so long as the instrument was placed back in its exact location with no change in the axis of the machine. The Second District has held that replacement in "substantially the same position" with no other evidence adduced as to the orientation of the instrument about its axis of rotation is insufficient and a new RFI survey is required. Fairborn v. Ellis (Oct. 26, 1992), Greene App. No. 92-CA-19, unreported, 1992 WL 311345 (pre- Yoder, but consistent with Yoder). Even if the facts of the instant case predate Yoder, the case law from the different appellate districts was in conflict as to whether a new RFI survey was required upon movement of the instrument for repairs, etc.
The defendant's allegation as to periodic surveys is without merit. There is no specific requirement for periodic surveys other than if one of the conditions in Ohio Adm. Code 3701-53-02(C)(2)(a) through (f) occurs. The changes to the room in which the instrument is located are unimportant unless the axis of the machine for testing purposes has changed, pursuant to Yoder. There is no law available on the fact that the instrument and the Coke machine share the same electrical service.
On the assumption that the initial RFI survey was in substantial compliance, a new survey would be required if one of the conditions in Ohio Adm. Code 3701-53-02(C)(2)(a) through (f) occurred. Defendant alleges there are new radios at the Springboro Police Department; this might have necessitated a new survey. With regard to the allegations as to other police departments using Springboro's instrument, there is no requirement that all of these departments' radios be tested. These radios are only relevant if they were transmitting within thirty feet of the instrument at the time the test was conducted on the defendant.
Finally, there may be an issue if a second proper RFI survey was conducted subsequent to the defendant's breath test. In the only case the court could find addressing this subject, the state argued that no prejudice inured to the defendant because a subsequent test complied with the Ohio Administrative Code regulations and showed no appreciable radio interference. The Tenth District rejected this argument, finding that the intent of the regulations is that "the machine be properly tested and verified to be in working order, free of radio interference prior to its application." State v. Pedigo (June 27, 1989), Franklin App. Nos. 89AP-120 through 89AP-127, unreported, 1989 WL 71619.
The court hereby concludes that the testing agency has complied with the regulations of the Department of Health in all respects, based upon the evidence, other than the operator's failure to utilize two hand-held radios in completing the RFI survey. Such failure, based upon the authorities heretofore analyzed, is a violation of the regulations, and the court finds there has not been substantial compliance. Accordingly, the defendant's motion to suppress is hereby sustained.
So ordered.