COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60359 CITY OF SOUTH EUCLID : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION EDMUND KISS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : APRIL 16, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from South Euclid Municipal Court : Case No. 08229 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: Berneard Mossesson, GEORGE L. NYERGES Prosecutor 803 United Office Building City of South Euclid 2012 West 25th Street 1349 South Green Road Cleveland, OH 44113 South Euclid, OH 44121 - 2 - PARRINO, J.: Defendant-appellant Edmund Kiss ("appellant") appeals his convictions in South Euclid Municipal Court for driving under the influence of alcohol with a chemical test reading in excess of .10% per gram and weaving. After appellant's motion to suppress the results of the blood alcohol test was denied, he entered a plea of no contest to the two aforementioned charges and the remaining two charges of driving under the influence and driving under suspension were nolled. Appellant's motion to suppress essentially argued that the test result of .16% should have been suppressed because he was not advised to remove his false teeth prior to the test and this accounted for an inaccurate chemical reading. However, no evidence at trial was adduced that false teeth may account for an inaccurate chemical reading. The facts relevant to this appeal are as follows: On January 4, 1990 at approximately midnight, two South Euclid police officers observed a van stopped on South Green Road in the curb lane. Patrolman Scott Rendlesham testified he and his partner observed appellant walk around the front of his vehicle and enter through the driver's side with "some difficulty." (Tr. 52.) There was testimony that appellant appeared to be urinating by the passenger side door onto South Green Road. Appellant proceeded southbound and the officers followed approximately two to three hundred yards behind and observed erratic driving. (Tr. 9, 35.) The officers then pulled appel- - 3 - lant over and approached his vehicle. He was asked to produce his driver's license and was administered several sobriety tests. According to the officers' testimony, appellant failed the tests and was taken to the police station. Because of his poor English, appellant had a friend come down to the station and act as an interpreter. He voluntarily submitted to a breathalyzer test and registered a .16% blood alcohol level. The results of the test were admitted into evidence. It is from this ruling that appellant timely appeals. I. Appellant advances several arguments in support of his posi- tion. He first posits that the City did not meet its burden of establishing compliance with testing regulations. In particu- lar, he contends that the manipulator did not advise him to remove his dental plate prior to submitting to the breathalyzer; that the breathalyzer was not in proper working order; and that the manipulator was not knowledgeable because he was not com- pletely certain of the conversion from fahrenheit to centigrade. These contentions have no merit. The burden is upon the prosecution to prove that the funda- mental requirements for the admissibility of the results of a blood alcohol test were met. State v. Gasser (1980), 5 Ohio App. 3d 217. The court in Cincinnati v. Sand (1975), 43 Ohio St. 2d - 4 - 79, held that the prosecution must affirmatively establish the following conditions before breathalizer results may be admitted: 1. The bodily substance must be withdrawn within two hours of the alleged viola- tion; 2. Such bodily substance shall be analyzed in accordance with the methods approved by the Director of Health; 3. The analysis shall be conducted by qualified individuals holding permits issued by the Director of Health pursuant to R.C. 3701.143. Rigid compliance with the Director of Health's regulations concerning blood alcohol testing is not necessary in order for the test results to be admissible. State v. Steele (1977), 52 Ohio St. 2d 187. Thus, there is leeway for substantial, though not literal, compliance with said regulations. State v. Plummer (1986), 22 Ohio St. 3d 292, 294. In this case, there is no evidence that the City failed to substantially comply with the administrative regulations. First, appellant did not produce any evidence that the failure to have him remove his dental plate caused an inaccurate reading. Appel- lant's unsubstantiated and inadequate so-called "expert report" attached to his motion to suppress was merely a letter from a laboratory which stated that "the use of dentures during breath alcohol testing may cause an inaccurate elevated alcohol result ***." This "report" was not introduced into evidence nor was an expert produced. Appellant has not demonstrated any prejudice by the City's failure to request appellant to remove his denture - 5 - plate, let alone that this failure to comply resulted in any error detrimental to him. See Plummer, at 295. Moreover, appellant failed to produce any evidence that the breathalyzer was not in proper working order. The testimony adduced was that the breathalyzer was in proper working order; was properly calibrated; and that the machine was periodically checked and cleaned in accordance with administrative regulations. Last, appellant has not demonstrated that the manipulator was not knowledgeable in that he did not know the difference between fahrenheit and centigrade. The record belies his contention. The manipulator knew the approxi- mate conversion. (Tr. 92.) Accordingly, the appellant's assignment of error is over- ruled. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the South Euclid Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, P.J. KRUPANSKY, J., CONCUR. JUDGE THOMAS J. PARRINO* (*Sitting by Assignment: Judge Thomas J. Parrino, Retired, Eighth Appellate District.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .