COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68045 CITY OF FAIRVIEW PARK : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : STEVEN E. KOLECKI : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 10, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court, No. 94-TRC-4266ABC. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: James F. Shannon, Esq. Prosecutor, City of Fairview Park 516 Standard Building 1370 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Dennis P. Murray, Esq. 400 Terminal Tower 50 Public Square Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Steven Kolecki, defendant-appellant, appeals from the Rocky River Municipal Court's denial of his motion to suppress evidence. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On April 19, 1994 at approximately 1:35 a.m. Steven Kolecki, defendant-appellant, was stopped by the Fairview Park police after his vehicle was measured via a laser indicator traveling at 78 m.p.h. in a 55 m.p.h. zone on I-480 near the West 220th Street overpass. The police pursued defendant-appellant's vehicle for approximately one mile before defendant-appellant stopped. Fairview Park Police Officer Mark Gleba detected a "moderate odor of an alcoholic beverage" when he first spoke with defendant- appellant. Consequently Officer Gleba requested defendant- appellant perform a series of field sobriety tests which defendant- appellant allegedly failed. Defendant-appellant was then placed under arrest for operating a vehicle while under the influence of alcohol. Defendant-appellant was transported to the Fairview Park Police Station where a breathalyzer test was administered by Officer Gleba. Defendant-appellant's breath registered a result of .117 on the BAC Datamaster. Based upon Officer Gleba's field observations and defendant-appellant's test results, defendant-appellant was charged with operating a motor vehicle while under the influence of alcohol in violation of Fairview Park City Ordinance 333.03(a)(1), -3- operating a motor vehicle with a blood alcohol concentration greater than .10 in violation of Fairview Park City Ordinance 333.01(a)(3), and speeding in violation of Fairview Park City Ordinance 333.03(e)(1). On April 22, 1994, defendant-appellant was arraigned in Rocky River Municipal Court whereupon defendant-appellant entered a plea of not guilty to all charges. On May 26, 1994, defendant-appellant timely filed a motion to suppress the breathalyzer test results. Defendant-appellant's motion to suppress came on for hearing on June 15, 1994 and July 14, 1994. During the suppression hearing, defendant-appellant argued that the breathalyzer test results should be ruled inadmissable based upon the Fairview Park Police Department's failure to properly calibrate the BAC Datamaster in accordance with O.A.C. 3701-53.04(A)(1). In addition, defendant-appellant argued that the City of Fairview Park, plaintiff-appellee, did not prove compliance with O.A.C. 3701-53.04(A)(1) through the introduction of competent evidence. On August 2, 1994 the trial court denied defendant-appellant's motion to suppress and issued findings of fact and conclusions of law. On September 23, 1994, defendant-appellant entered a plea of no contest to the charge of operating a motor vehicle while under the influence of alcohol and operating a motor vehicle with a blood alcohol concentration greater than .10. The trial court granted defendant-appellant's request for stay of execution of sentence pending the outcome of this appeal on October 14, 1994. On October -4- 19, 1994, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Steven Kolecki's, defendant-appellant's, sole assignment of error states: THE TRIAL COURT ERRED BY FINDING THAT THE CITY OF FAIRVIEW PARK HAD MET ITS BURDEN OF PROVING WITH COMPETENT EVIDENCE COMPLIANCE WITH OHIO ADMINISTRATIVE CODE SECTION 3701- 53.04 AND DENYING DEFENDANT'S MOTION TO SUPPRESS BREATHALYZER TEST RESULTS. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS Defendant-appellant argues through his first and only assignment of error that the trial court erred in failing to grant his motion to suppress the results of the breathalyzer test performed by the City of Fairview Park Police. Specifically, defendant-appellant maintains that the City of Fairview Park, plaintiff-appellee, failed to meet its burden of proving through competent evidence that the BAC Datamaster had been properly calibrated pursuant to the requirements set forth in Ohio Admin. Code. 3701-53.04. It is defendant-appellant's position that once proper calibration of the breathalyzer machine has been challenged, the state has the burden of proving compliance with Ohio Admin. Code. 3701-53.04. State v. Schindler (1994), 70 Ohio St.3d 45, 58. Defendant-appellant contends that the City of Fairview Park has failed to meet its evidentiary burden. Defendant-appellant's sole assignment of error is not well taken. -5- B. STANDARD OF REVIEW Ohio Adm. Code 3701-54.04 sets forth the procedures to be followed for calibration of Ohio Department of Health approved breath testing instruments, including the BAC Datamaster. This section mandates breath testing instruments to be checked for calibration at least once every seven days using a solution approved by the Ohio Department of Health. The results of the calibration test must be recorded and the calibration solution must not be used more than three months after its first use. Calibration solutions must be stored in the container in which the solutions were placed by their manufacturer and must be kept under refrigeration after first use. In order to maintain the accuracy of the breathalzyer test, the Ohio Department of Health tests and approves a sample of the calibration solution, and certifies that the solution was tested and found to meet state criteria. Defendant-appellant relies heavily upon the case of Columbus v. Robbins (1989), 61 Ohio App.3d 324, 328 in which the Franklin County Court of Appeals, emphasizing the importance of a properly authenticated calibration solution certificate, held that the state must demonstrate precise compliance with the procedures promulgated by the Ohio Department of Health; otherwise the test results are inadmissable. However, since the issuance of Robbins, supra, the Franklin County Court of Appeals has undertaken a second review of this issue. -6- In State v. Goodman (June 9, 1994), Franklin App. No. 93- APC11-1554, unreported the court found: *** in Defiance v. Kretz (1991), 60 Ohio St.3d 1, 3 the Ohio Supreme Court, interpreting some of the same cases as this court did in Robbins, determined that "the admissibility of test results to establish alcoholic concentration under R.C. 4511.19 turns on substantial compliance with ODH regulations." Therefore, in order for breathalzyer test results to be admissible as evidence, the City of Fairview Park must have presented sufficient evidence to demonstrate that the calibration of the BAC Datamaster instrument used to test the concentration of alcohol in defendant-appellant's breath was done in substantial compliance with Ohio Department of Health regulations. The rules of evidence do not apply with full force at hearings before a judge to determine the admissibility of evidence. United States v. Matlock (1974), 415 U.S. 164, 172. Accordingly, the trial court's decision as to whether evidence should be admitted would only be reversed on appeal if the trial court abused its discretion. State v. Woodring (1989), 63 Ohio App.3d 79. Whether the appellate court would reach the same conclusion as the trial court is immaterial as long as the trial court's conclusion is reasonably supported by the evidence. State v. Goodman, supra. An abuse of discretion connotes more than an error in law or judgment, it implies that the court's attitude is -7- unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. -8- C. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS. In the case sub judice, a review of the record demonstrates substantial compliance with Ohio Adm. Code 3701-54.04. During the suppression hearing, Officer Erich Upperman, a City of Fairview Park Police officer testified as follows: Q. Now Officer, the most recent calibration of this machine before the nineteenth of April, 1994 -- which is the date Mr. Kolecki was stopped -- was which date; do you recall? A. April 13; and I performed that calibration check. Q. Would you explain to the Court -- incidentally, what is the rule regarding calibration? A. They must be done once every seven calendar days. Q. So, this was calibrated on the Thirteenth of April? A. That is correct. Q. And do you know when the next calibration was, after the Thirteenth? A. The Twentieth, I believe. Q. So, tell us about the calibration on the Thirteenth of April, regarding the sample solution which you use, what you did. * * * The solution is supposed to be, or is certified, at .105 grams of alcohol per 210 liters of breath. When you do the test, that is what the optimal result is. Q. When you say "optimal result," what do you mean? -9- A. Well, that is what -- the machine should read what the solution was certified to be at, within that tolerance of .005. Q. So, the solution, once again, should -- the optimum reading would be .105? A. Correct. Q. And this reading was .109, correct? A. I have it in front of me. Yes. At 20:54 hours on the Thirteenth of April, it was .109. Q. So, that is within .005 percent of the optimum reading, correct? A. That's correct. Q. In other words, that reading should not have been .100. It should have been .105. Is that what you are testifying to? A. Plus or minus .005; yes. Q. And .109 fell within that -- A. Yes; within the tolerance allowed by the Department of Health. (Tr. at pp. 42, 43 and 46, 47.) Accordingly, Officer Upperman's testimony clearly demonstrates that a proper calibration check was performed in accordance with Ohio Admin. Code. 3701-53.04. In addition, the record contains a copy of an approval of calibration certificate from the Ohio Department of Health for Batch or Lot No. 89-10 as well as a copy of the BAC Datamaster test report form for Batch or Lot No. 89-10 dated April 13, 1994. Batch or Lot No. 89-10 was the designation for the -10- calibration solution used during defendant-appellant's breathalyzer test. A review of both documents indicates that the City of Fairview Park substantially complied with the Ohio Administrative Code requirements for calibration of the BAC Datamaster. Neither the Ohio Revised Code nor the Ohio Administrative Code requires law enforcement officials or the Ohio Department of Health to keep, certify or present as evidence, the specific documents accompanying the bottles of calibration solution when they are shipped. State v. Goodman, supra. Therefore, the trial court did not err in finding that the City of Fairview Park had shown that the BAC Datamaster was properly calibrated so as to substantially comply with Ohio Department of Health Regulation based upon Officer Upperman's testimony and copies of the relevant documents at issue, thereby rendering the test results admissible. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -11- 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 Rocky River 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. DYKE, J. and KARPINSKI, J., CONCURS. DAVID T. MATIA 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 .