COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67733 CITY OF LAKEWOOD : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION TIMOTHY SHAW : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 20, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE LAKEWOOD MUNICIPAL COURT CASE NO. 94 C 2206 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: TIMOTHY J. GAUNTNER (#0014066) Prosecuting Attorney SEAN F. KELLEHER (#Z00006850) Assistant Prosecuting Attorney 12650 Detroit Avenue Lakewood, Ohio 44107 For Defendant-Appellant: DAVID G. PHILLIPS (#0046827) The Truman Building, Suite 410 1030 Euclid Avenue Cleveland, Ohio 44115 - 2 - LEO M. SPELLACY, P.J.: Defendant-appellant Timothy Shaw ("appellant") appeals his conviction for driving under the influence of alcohol in violation of Lakewood Codified Ordinance Section 333.01(a). Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS BECAUSE IT LACKED JURISDIC- TION OVER THE OFFENSE CHARGED. II. THE TRIAL (SIC) ERRED IN DENYING APPELLANT'S MOTION TO ARREST JUDGMENT. III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING APPELLANT'S MOTION TO SUPPRESS THE CHEMICAL TEST USED TO DETERMINE THE CONCENTRA- TION OF ALCOHOL IN APPELLANT'S BREATH. IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO GRANT APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On March 14, 1994, appellant was arrested for driving under the influence of alcohol. At 2:36 a.m., a Lakewood Police Officer was at West 117th Street and Detroit when he observed appellant run a red light. Officer Vet pursued and made the stop at West 114th Street in Cleveland approximately five seconds later. When appellant rolled down his window, Vet noticed a strong odor of alcohol. Appellant's eyes were glassy, his speech somewhat slurred, and there was a strong odor of alcohol on his breath. When appellant could not successfully recite the alphabet, the - 3 - officer asked appellant to exit his vehicle and field sobriety tests were conducted which appellant failed. Lakewood Officer Edward Gannon assisted Vet. He gave appellant the horizontal gaze nystagmus test. Based on the test, Gannon believed appellant to be under the influence of alcohol. Appellant was transported to the Lakewood Police Station. There, appellant agreed to take an intoxilyzer test to measure his breath-alcohol concentration or BAC. The reading of the BAC was .183. Appellant was charged with violating Lakewood Codified Ordinance Section 333.01(a). He was not charged with a red light violation. Appellant filed a motion to suppress evidence based on the stop itself and on Lakewood's compliance with Ohio Department of Health Regulations in regard to the radio frequency interference (RFI) survey conducted on the Intoxilyzer 5,000 used for appel- lant's BAC test. A hearing was held on the motion which was denied. The case was assigned to an Acting Judge. Appellant was tried to the bench and found guilty of violating Lakewood Codified Ordinance Section 333.01(a). II. In his first assignment of error, appellant contends the trial court lacked subject matter jurisdiction over the offense charged. Appellant argues he was pursued out of the jurisdictional bound- aries of Lakewood but was never charged for the offense which allegedly was the basis of the pursuit. Officer Vet pursued - 4 - appellant into Cleveland because appellant ran a red light. However, appellant never was charged with that offense but with operating a vehicle under the influence of alcohol and with a concentration of ten-hundredths of one gram or more by weight of alcohol per 210 liters of his breath. Appellant bases his argument on the language of R.C. 2935.03(D)(3). R.C. 2935.03(D) governs arrests made outside the officer's jurisdiction. Under these provisions, an officer may pursue, arrest and detain a person if all of the following apply: (1) The pursuit takes place without unreasonable delay after the offense is committed. (2) The pursuit is initiated within the limits of the political subdivision, metropolitan housing authority housing project, college, or university in which the peace officer is appointed, employed, or elected. (3) The offense involved is a felony, a misde- meanor of the first degree or a substantially equivalent municipal ordinance, a misdemeanor of the second degree or a substantially equivalent municipal ordinance, or any offense for which points are chargeable pursuant to division (G) of section 4507.021 [4507.02.1] of the Revised Code. Appellant does not dispute the first two requirements were met or that a red light violation is one for which points are chargeable. Instead, appellant claims that because he was not charged with a red light violation, no points are chargeable. Because no points were charged, the third requirement of R.C. 2935.03(D) was not met, thereby depriving Lakewood of jurisdiction. - 5 - Appellant's argument focuses on the incorrect point in time. The provisions of R.C. 2935.03(D) are to be assessed based on the time of the pursuit not on what occurs later. Appellant was observed committing a red light violation. This is an offense for which points are chargeable. Therefore, the extraterritorial pursuit of appellant complied with the dictates of R.C. 2935.03(D). That appellant ultimately was not charged with this offense does not change what took place at the time of the pursuit. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant argues the trial court should have granted his motion to arrest judgment as his conviction is void because the trial court lacked jurisdiction. Appellant's arguments are the same as those advanced in his first assignment of error. It already has been determined that the trial court had jurisdiction to decide this case. The trial court did not err in denying appellant's Crim.R. 34 motion. Appellant's second assignment of error is overruled. IV. In his third assignment of error, appellant asserts the trial court erred in denying his motion to suppress the chemical test. Appellant argues that the radio frequency interference (RFI) survey did not comply with Ohio Department of Health regulations and therefore should have been suppressed. - 6 - Before the results of a breath test can be admitted into evidence, the state must show that the instrument was in proper working order at the time of the examination. Mentor v. Giordano (1967), 9 Ohio St.2d 140, paragraph six of the syllabus. Compliance with the Ohio Department of Health regulations must be substantial not literal. State v. Plummer (1986), 22 Ohio St.3d 292. See, also, Defiance v. Kretz (1991), 60 Ohio St.3d 1. RFI can affect the results produced by a breath-testing machine. The electromagnetic field produced by a nearby radio transmitter can affect the results of a test being conducted by a breath-testing machine. State v. Adams (1992), 73 Ohio App.3d 735. Ohio Adm. Code 3701-53-02(C) provides that a RFI survey be performed by the senior operator for different instruments includ- ing the Intoxilyzer 5000 used by Lakewood. The RFI survey form instructs the operator to sketch the floor plan surrounding the instrument. The senior operator stays with the machine holding a hand-held radio. A second person also holding a hand-held radio stands thirty feet from the instrument and walks towards the machine. If the Intoxilyzer 5000's internal RFI detector shows radio interference, an "x" is to be marked on the diagram at the farthest point from the instrument that interference is detected. The test is to be conducted on eight different vectors. If interference is found on any of the vectors, the "y" block is to be marked. - 7 - At the hearing on the motion to suppress, Lakewood's senior operator was questioned regarding the survey he conducted on the Intoxilyzer 5000. Q. And did you, in fact, complete the RFI survey according to the directives of the Ohio Department of Health when you did it back in November or October? A. Yes, sir. Q. Could you detail for the Court how that's done? A. Okay. The instructions indicate that you need two operators or -- myself as the senior operator plus an assisting officer with the addition of two hand held radios, one that's maintained in the on position by myself and another one that is maintained in the on position by the assisting officer. And at that time I maintain the position with the radio on standing at the intoxilyzer and looking at the intoxilyzer. The second officer who was the assisting officer is required to go into eight different vectors from the center area of the machine and as logistically possible as you can get eight even angles directly away from the machine. Obviously, due to the logistics of the layout of the physical compound, it is physically impossible to walk a straight 30 feet towards the machine so we measure off a distance of at least 30 feet and then there might be additional distance that has to be walked around the doorway. Upon my direction I place the machine into the test mode. At this point it will be maintained in that test mode and the assisting officer is instructed to start walking towards the machine with the radio -- with the radio mike on actually transmitting and approaching from those -- 30 feet away from the instrument and specifically noting as close as possible approximately every five feet until such point that as you approach the instrument if the - 8 - instrument itself which is built with an internal radio frequency interference pro- tector I have to then note if and when radio frequency interference is detected on that machine for a minium (sic) of eight vectors that the officer is approaching from. Q. Can you recall without looking at the -- without looking at your diagram if, in fact, radio frequency interference was detected on any of those eight vectors. A. Yes. Radio frequency interference was detected on one vector on each of the two channels that were tested by myself and my assistant. Q. I see. And approximately how far away was it detected? A. I estimated between seven and eight feet roughly. Q. I see. Did you, in fact, test this particular model as required to the strict adherence of the requirements of the Ohio Department of Health? A. Yes, sir. (Tr. 108-110). Appellant argues the senior operator did not follow the specific requirements of the Ohio Department of Health. He points out that only the first vector is marked with an "x". Based on this, he states that Lakewood did not test the other seven vectors. This does not comport with the testimony of the senior operator. He said that interference was detected on only one vector but that the other vectors were tested. The diagram was to be marked with an "x" when interference was detected. No "x" appears on seven of the vectors because no interference was found, not because no - 9 - testing took place. Because interference was found on one vector, the "y" block is correctly marked. Appellant also maintains the senior operator testified that he knew what the regulations are but did not testify that he performed those instructions when the surveys on the Intoxilyzer 5000 were done. A review of the testimony shows the senior operator testified twice that the directives of the Ohio Department of Health were followed when the RFI surveys were completed. He also explained in detail how the surveys were performed. Appellant next argues that only two frequencies were tested and they did not test the two bands used by the Lakewood Police Department. In State v. Adams (1992), 73 Ohio App.3d 735, the two frequencies used by the Urbana Police Department were tested. The court did not require all bands or frequencies be tested, even those used by the Ohio Highway Patrol which used the Urbana Police Department's Intoxilyzer. Similarly, in State v. Day (1990), 67 Ohio App.3d 325, the court found substantial compliance with the Ohio Department of Health regulations where only the frequencies used by those occupying the premises were tested. In the instant case, there was testimony that the two frequencies used by the Lakewood Police Department were tested. It was not necessary to test other frequencies not used by the Lakewood Police. Appellant asserts the senior operator put too much reliance on the Intoxilyzer's internal detector and based his conclusion that the machine was working properly on this internal detector. The - 10 - accuracy of a breath-testing device cannot be confirmed based on the presence of an internal detecting device alone. Substantial compliance with the testing method required by the Ohio Department of Health also is required. See State v. Witten (1990), 67 Ohio App.3d 135. Lakewood substantially complied with those regulations when the RFI surveys were performed. The accuracy of the Intoxi- lyzer was based on the RFI surveys and not on the presence of an internal detection service. The court hearing the motion did not err in denying appel- lant's motion to suppress. Appellant's third assignment of error is not well taken. V. In his fourth assignment of error, appellant contends the trial court erred by overruling his motion for acquittal. A motion for acquittal will be sustained if the evidence presented is insufficient as a matter of law to permit a conviction. Crim.R. 29(A). It will not be granted "if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. Appellant asserts that insufficient evidence was presented to show what the breath-alcohol concentration reading meant. When asked what appellant's reading was, the police officer testified it was .183. He further testified that the legal presumption was that anyone testing .10 or higher is under the influence. - 11 - In Mentor v. Giordano (1967), 9 Ohio St.2d 140, the court held that evidence relating to a breathalyzer test was incompetent and should not have been considered when there was no evidence explain- ing what an .18 per cent reading indicated. In Toledo v. Raider (1983), 14 Ohio App.3d 198, the court held that the prosecutor must elicit testimony indicating what the intoxilyzer test result means for there to be a sufficient foundation to admit the test result into evidence. In State v. Phillips (1993), 97 Ohio App.3d 1, the court held it not to be enough that a state trooper testified that the defendant's test result was .116 and that the reading was over the legal limit of .100. The court held that the testimony was meaningless and inadmissible without the test results being referred to as a percentage of alcohol concentration by weight. In State v. French (1995), 72 Ohio St.3d 446, the court held at paragraph two of the syllabus: When introducing a legally obtained breath- alyzer test result below .10 into evidence in prosecutions under R.C. 4511.19(A)(1), the state must present expert testimony to relate the numerical figure representing a percentage of alcohol by weight in the bodily substance, as shown by the results of the chemical test, to the common understanding of what it is to be under the influence of alcohol. (Newark v. Lucas [1988], 40 Ohio St.3d 100, 532 N.E.2d 130, approved.) In the instant case there was no testimony explaining the meaning of the Intoxilyzer reading. Without such testimony, the results of appellant's breath-alcohol concentration test should not have been admitted into evidence. - 12 - Appellant also argues his test result should not have been admitted because there was no testimony elicited at trial to show that Lakewood complied with the Ohio Department of Health regulations when it analyzed appellant's breath. Ohio Adm. Code Section 3701-53-07(B) requires the breath test be performed by a senior operator or an operator under the general direction of a senior operator. At trial the officer who testified regarding appellant's breath test was an operator but not a senior operator. There was no testimony he was supervised in any fashion by a senior operator. The prosecutor must present evidence that the bodily substance was withdrawn within two hours of the time of the alleged viola- tion, that the bodily substance was analyzed in accordance with methods approved by the Director of Health, and that the analysis was conducted by qualified individuals holding permits from the Director of Health. State v. Young (1993), 88 Ohio App.3d 486. Before the results of a blood-alcohol concentration test may be admitted into evidence, the prosecution must show that the instru- ment was in proper working order and that its operator had the qualifications to conduct the test. State v. Lambert (1991), 71 Ohio App.3d 590. There is nothing in the record of the trial to show that the prosecution laid a proper foundation for the admittance of the testimony regarding appellant's breath test. There was no testimony the machine was in working order. No survey was admitted - 13 - into evidence. See State v. Bennett (1990), 66 Ohio App.3d 595. Since at the time of trial, there was no testimony regarding the analysis pursuant to the requirements of the Director of Health or by qualified individuals. The test results should not have been admitted into evidence. Appellant was charged with violating Lakewood Codified Ordinance Section 333.01(a)(1) which prohibits driving under the influence of alcohol and Section 333.01(a)(3) which prohibits operating a vehicle with a concentration of ten-hundredths of one gram or more by weight of alcohol per 210 liters of his breath. The conviction under Section 333.01(a)(3) cannot be sustained without the evidence of the BAC reading being admitted into evidence. It must be determined whether there was sufficient evidence admitted at trial to support appellant's conviction for violating Section 333.01(a)(1) for driving under the influence of alcohol. At trial, Officer Vet testified that he noticed a strong odor of alcohol when appellant rolled down his window. Appellant's eyes were glassy, his speech somewhat slurred, and there was a very strong odor of alcohol on his breath. Appellant was unable to correctly recite the alphabet. When appellant exited his car to perform field sobriety tests, he had to steady himself by using the trunk of the car. Appellant continued to be unsteady throughout the various tests. Appellant swayed noticeably on the finger to - 14 - nose test and looked twice while trying to guide his finger to his nose. He touched his upper lip instead of his nose. Appellant touched his foot down on two separate occasions while attempting the one leg stand. He tried to maintain his balance by extending his arms. When asked not to extend his arms, he had to hop about in an effort to balance himself. Appellant walked normally for the heel-to-toe test and once again extended his arms for balance. Officer Gannon testified he administered the horizontal gaze nystagmus test to appellant. Gannon was unable to complete the test on appellant because appellant did not follow the instruc- tions. Based on appellant's failure to follow Gannon's instruc- tions and Gannon's observance of appellant's performance of the field sobriety tests, Gannon believed appellant to be under the influence of alcohol. Based on the testimony of Officers Vet and Gannon, there was sufficient evidence to find appellant guilty of driving under the influence of alcohol. The trial court made a general finding of guilty to appellant's violation of Lakewood Codified Ordinance Section 333.01(a). There was sufficient evidence to support that finding. Appellant's fourth assignment of error is overruled. Judgment affirmed. - 15 - 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 Lakewood Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, J. and TERRENCE J. O'DONNELL, J. CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .