Summary
In State v. Clark (Mar. 19, 1998), Logan App. No. 8-97-14, unreported, the Third District Court of appeals held that a defend ant had waived his challenge to a RFI survey on the basis that only one radio was used during the test.
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CASE NO. 8-97-14.
DATE OF JUDGMENT ENTRY: March 19, 1998.
CHARACTER OF PROCEEDINGS: Criminal Appeal from Municipal Court.
JUDGMENT: Judgment affirmed.
MARK S. TRIPLETT, Reg. #0021222, For Appellant.
WILLIAM T. GOSLEE, City Prosecutor, Reg. #0041924, For Appellee.
OPINION
This appeal is brought by Dale R. Clark, Appellant, from a judgment of the Logan County Municipal Court denying his motion to suppress evidence of breathalyzer test results which were subsequently used to convict Appellant of operating a motor vehicle with a prohibited concentration of alcohol in his breath, in violation of R.C. 4511.19(A)(3).
Dale Clark was arrested on March 4, 1997 and charged with improper backing, driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1), and driving with a prohibited level of alcohol in his breath, in violation of R.C. 4511.19(A)(3). A test of Clark's breath alcohol content found .118 grams of alcohol per 210 liters of his breath. Clark entered not guilty pleas to all charges. On April 15, 1997, Clark filed a motion to suppress evidence, challenging the legality of his arrest, the admissibility of post-arrest statements, and the admissibility of the breathalyzer test results. Following a hearing on the motion, the trial court agreed to exclude post-arrest statements made by Clark but denied his other requests for suppression. On July 23, 1997, Clark entered a plea of no contest to the charge of operating a motor vehicle with a prohibited breath alcohol content, pursuant to R.C. 4511.19(A)(3), and was found guilty by the trial court. The remaining charges were dismissed.
Appellant now appeals the decision of the trial court denying his motion to suppress breathalyzer test results, asserting two assignments of error:
First Assignment of Error
The trial court erred in denying Defendant-Appellant's motion to suppress the results of the chemical test of his breath based upon the State's failure to prove that all required frequency bands were tested in the RFI survey conducted on the BAC Datamaster.Second Assignment of Error
The trial court erred in denying Defendant-Appellant's motion to suppress evidence of a chemical test of his breath based upon the State's failure to establish that the officers conducting a radio frequency interference survey of the BAC Datamaster had used two hand-held radios as required by the regulations of the Ohio Department of Health.
Both of the errors assigned by Appellant challenge the admissibility of breath alcohol test results on the basis that a radio frequency interference ("RFI") survey performed on the BAC Datamaster machine on January 28, 1997 had not been conducted in compliance with the regulations of the Ohio Department of Health. We find the facts and errors raised in this appeal identical to facts and errors assigned in State v. Robinson (Dec. 30, 1997), Logan App. No. 8-97-11, unreported. In Robinson, this court held that the January 28, 1997 RFI survey was not required under Ohio Adm. Code 3701-53-02 for the radios used at the jail in this case. Therefore, we find Appellant was not prejudiced by the way in which the January 28, 1997 RFI survey was conducted.
While we find our decision in Robinson dispositive of this appeal, we also note the following in addition to our analysis in Robinson: we find Appellant's second assignment of error which challenges the officers' failure to use two hand held radios when performing the RFI survey as violative of the Ohio Department of Health regulations, has been waived by Appellant pursuant to the law espoused in Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218.
Crim.R. 47 makes clear that a motion for a court order "shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought." The reason for requiring such specificity in motions has been explained by the Ohio Supreme Court in Xenia v. Wallace, 37 Ohio St.3d at 218:
* * * [T]he prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search.
The prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits. Therefore, the defendant must make clear the grounds upon which he challenges the submission of evidence pursuant to a warrantless search or seizure. Failure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of the issue on appeal (citations omitted).
In State v. Hensley (1992), 75 Ohio App.3d 822, 828, this court further noted that "there is a presumption of regularity of the action of law enforcement officials, and there is a need for the prosecutor and the court to be put specifically on notice as to what the defendant is challenging."
A review of Appellant's motion to suppress demonstrates that Appellant did not challenge the RFI survey on the basis that only one radio was used during the test, rather he challenged the survey solely on the claim that the officers failed to test the correct frequency bands when performing the January, 1997 survey. Since Appellant's motion to suppress did not challenge the use of one radio versus two in the performance of the RFI survey in this case, we find any claim in this regard has been waived. As it was, all parties prepared for the hearing on the motion to suppress as it related to the challenged radio frequency bands tested in January of 1997. Within this framework then, "the state had the ultimate burden of proving only the fulfillment of the prerequisites or foundation conditions to the extent that the accused took issue with the legality of the test." State v. Young (1993), 88 Ohio App.3d 486, 489 citing State v. Vermillion (May 8, 1995), Union App. No. 14-83-9, unreported. However, as we found in Robinson, supra, the facts of the case failed to demonstrate any of the occurrences enumerated in Ohio Adm. Code 3701-53-02(C)(2) which would have required the state to perform a new RFI survey in January of 1997. Consequently, any procedural errors that occurred during the performance of that survey could not have prejudiced Appellant. Furthermore, because Appellant's motion to suppress only challenged the officers' failure to test all frequency bands in the most recent (January, 1997) RFI survey, the state was not required to present evidence of proper RFI surveys taken prior to January of 1997. Young, supra.
Given the foregoing, Appellant's assignments of error are overruled.
Having found no error prejudicial to the Appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed. SHAW, J., concurs.
HADLEY, J.
I respectfully dissent from the majority opinion's finding that the decision in Robinson is dispositive of this appeal.
The majority in Robinson properly points out that Appendix H of Ohio Adm. Code 3701-53-02 sets forth the specific procedures for conducting an RFI survey and that State v. Plummer(1986), 22 Ohio St.3d 292 states that absent a showing that the defendant has been prejudiced by a deviation in procedures, the results of an alcohol test administered in substantial compliance with the applicable regulation are admissible in a prosecution under R.C. 4511.19.
However, the majority in Robinson fails to analyze the procedure invoked by the surveying officer to see if the surveys were properly conducted either on August 10, 1993 with respect to the transmitters utilized by the jailers, or on January 28, 1997 when the increased output transmitters of the Highway Patrol were surveyed.
Appendix H states that two persons are to use two hand-held radios with one person remaining with a receiver by the BAC machine while the other person transmits with the second radio from a distance of thirty feet along eight axes.
In the Robinson case the issue of the RFI surveys was submitted to the trial court based upon the testimony previously presented in this case. A review of the testimony in this case indicates that Sgt. Branstiter participated in both the 1993 and 1997 RFI surveys. (T.p. 17, 21). When explaining the survey procedure (T.p. 19) Branstiter tells how in place of the second hand-held radio receiver, he utilized the BAC's internal RFI detector to determine if the RFI detector is operating properly in the machine.
As set forth in State v. Lavins (Apr. 25, 1989), Delaware App. No. 88-CA-35, unreported, 1989 WL 47926:
"The State should persuade the Director of Health to rewrite his regulation 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."
In other words, the purpose of the second radio is not served by the BAC internal detector for two reasons. First, the second radio serves to test whether the other radio is active and generating radio frequency energy at the angle and direction intended, which the internal detector does not do. Second, the second radio serves to test the proper operation of the internal detector itself.
Sgt. Branstiter has indicated how he conducted the surveys. It is obvious that he utilized the BAC's internal detector to take the place of the second radio, a procedure which does not substantially comply with the provisions of Ohio Adm. Code 3701-53-02, Appendix H, and therefore, in accordance with the rule of Plummer, supra, is prejudicial to the defendant.
The majority also adopts the argument of the prosecution that the original motion to suppress did not specifically address the usage of just one radio but rather the motion challenged the survey solely on the claim that the officers failed to test the correct frequency bands when performing the January, 1997 survey.
The prosecution did not object to the motion to suppress nor did it ask for additional time in which to produce further evidence.
The motion pointed out that the RFI survey did not comply with the requirements of the Ohio Adm. Code section 3701-53-02(C) in that the officer testing for radio frequency interference failed to test all radios. Therefore, the motion did contain the particularity required by Crim.R. 47 and Xenia v. Wallace (1988), 37 Ohio St.3d 216, and there was thus no waiver of the claim. See State v. Hominsky (l995), 107 Ohio App.3d 787 ("[T]he state was not prejudiced by this failure [of the defendant to state with sufficient particularity the underlying legal and factual basis] as [the state] was able to present all available evidence relating to this issue.") Additionally, even if Clark's motion to suppress was defective, the state's "failure to object to an unsupported and defective motion will result in waiver of that defect." State v. Cartledge (l991), 76 Ohio App.3d 145, 148; Xenia, supra at 221.
The balance of the challenge developed as the officer testified in response to the question as to how he conducted the test. (T.p. 19). There was no surprise on the part of the prosecution as a result of a lack of particularity of the motion and no unfairness resulted as there were no other officers to testify as to how the test was conducted.
The results of the test should be suppressed.