Summary
In Aurora, supra, 60 Ohio St.2d 73, 14 O.O.3d 273, 397 N.E.2d 400, at paragraph two of the syllabus, we held: "Where the Director of Health, pursuant to R.C. 3701.143, promulgates a rule that a Breathalyzer test administered by one holding an operator's permit is to be performed under the general direction of a senior operator, the senior operator is not required to be physically present when the test is administered."
Summary of this case from Dublin v. YoungOpinion
No. 79-7
Decided November 28, 1979.
Motor vehicles — Driving while intoxicated — Breathalyzer test — Administered, how — Results admissible, when.
1. Before the results of a Breathalyzer test given an accused are admissible in evidence against him, it is incumbent upon the state to show that the instrument was in proper working order and that its manipulator had the qualifications to conduct the test. (Paragraph six of the syllabus in Mentor v. Giordano, 9 Ohio St.2d 140, followed.)
2. Where the Director of Health, pursuant to R.C. 3701.143, promulgates a rule that a Breathalyzer test administered by one holding an operator's permit is to be performed under the general direction of a senior operator, the senior operator is not required to be physically present when the test is administered. (Ohio Adm. Code 3701-53-07 [C].)
APPEAL from the Court of Appeals for Portage County.
On May 12, 1977, at 12:16 A.M., Sergeant Raymond Wakefield of the city of Aurora Police Department observed James S. Kepley driving his automobile in an erratic manner on State Route 43 in Aurora. Sergeant Wakefield stopped the vehicle and gave Kepley some coordination tests, known as the Alcohol Influence Field Test, which Kepley had difficulty performing. As a consequence thereof, Sergeant Wakefield drove Kepley to the Aurora police station where Kepley was advised of the Ohio implied consent law and where he agreed to take a Breathalyzer test.
The Breathalyzer test was administered by Lyle Summers who held a valid "operator's permit" issued April 25, 1976, expiring April 25, 1978. The Aurora police department has two "senior operators," neither of whom was present at Kepley's testing. One of the senior operators, Chief of Police Arthur J. Robitaille, testified that he regularly calibrated and maintained the Breathalyzer equipment as required by Department of Health regulations and that the equipment had been found to be performing accurately both before and after Kepley was tested.
Over the objection of Kepley's counsel, the results of the Breathalyzer test were admitted in evidence by the Portage County Municipal Court showing a blood-alcohol content of .24 percent. Kepley was found guilty of operating a motor vehicle while under the influence of alcohol in violation of Section 333.01 of the Codified Ordinances of the city of Aurora, and judgment was entered upon the verdict.
Kepley appealed to the Court of Appeals for Portage County assigning as prejudicial error the admission of the Breathalyzer test results. Kepley alleged that under Department of Health Regulation HD-1-07, now Ohio Adm. Code 3701-53-07 (C), the test results could not be admitted because the test was not administered in the presence of a senior operator. The Court of Appeals reversed the judgment of the trial court, finding that the regulation requires the presence of a "senior operator" in the administration of the test.
The cause is now before this court upon the allowance of a motion to certify the record.
Messrs. Walter, Haverfield, Buescher Chockley and Mr. John H. Gibbon, for appellant.
Messrs. Loomis, Poland, Wilson Griffith and Mr. Harry L. Griffith, for appellee.
This court stated in Mentor v. Giordano (1967), 9 Ohio St.2d 140, in the sixth paragraph of the syllabus, as follows:
"Before the results of a Breathalyzer test given an accused are admissible in evidence against him, it is incumbent on the state to show that the instrument was in proper working order and that its manipulator had the qualifications to conduct the test."
In Cincinnati v. Sand (1975), 43 Ohio St.2d 79, this court explained Giordano, and held that the results of a Breathalyzer test could be admitted in evidence only upon an affirmative showing that the bodily substances were withdrawn within two hours of the alleged violation; that they were analyzed in accordance with Department of Health methods; and that the analysis was conducted by qualified individuals holding permits issued by the Department of Health pursuant to R.C. 3701.143. There is no contention that Lyle Summers was not a qualified operator or that the bodily substances were not withdrawn within two hours of the alleged violation. The sole issue before this court is whether the Court of Appeals was correct in ruling that in order for an operator to analyze the bodily substances in accordance with Department of Health methods, a senior operator must be present when the test is administered under Ohio Adm. Code 3701-53-07 (C).
The Department of Health has set up a system of administering Breathalyzer tests which uses two types of personnel, operators and senior operators. An operator must be trained and must demonstrate ability to properly operate the instrument for which the permit is sought. Ohio Adm. Code 3701-53-07 (E). A senior operator receives special training regarding the types of instruments for which he seeks a permit. Ohio Adm. Code 3701-53-07 (D).
Pursuant to R.C. 3701.143 and 4511.19, the Director of Health issued Ohio Adm. Code 3701-53-07 (C) which regulates the conduct of the two types of personnel. Ohio Adm. Code 3701-53-07 (C), in pertinent part provides:
"Breath tests shall be performed by a senior operator or an operator who is under the general direction of a senior operator. A senior operator shall be responsible for the care, maintenance, and calibration of the testing instruments. Senior operators shall perform or direct only those breath tests for which they have been issued a permit by the director of health under rule 3701-53-09.***"
The purpose of this Department of Health regulation under R.C. 3701.143 is to insure accuracy in the testing process. The department realized that police officers could be trained in the proper methods of operating the equipment and could obtain accurate test results from the Breathalyzer without constant supervision by or the training of a senior operator, either of which would require unnecessary expense. At the same time, the department realized that to insure accuracy, every police department using Breathalyzer equipment needed at least one person trained extensively in the use and maintenance of the equipment.
As a consequence, the Department of Health used the term "general direction" in Ohio Adm. Code 3701-53-07 (C). This term, which is quite different from "direct supervision," requires that when Breathalyzer testing is performed by operators there be at least one senior operator who will care for, maintain and calibrate the equipment and who will occasionally check the performance of the operators. If these procedures are employed by the senior operator, then the operators, using the proper methods learned in training, will get accurate results.
The Court of Appeals erred in ruling that the language employed in Ohio Adm. Code 3701-53-07 (C) requires that the senior operator be present at the time the test is conducted. Where the Director of Health, pursuant to R.C. 3701.143, promulgates a rule that a Breathalyzer test administered by one holding an operator's permit is to be performed under the general direction of a senior operator, the senior operator is not required to be physically present when the operator administers the test.
As a consequence, the judgment of the Court of Appeals is reversed.
Judgment reversed.
HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.