COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68257 CLEVELAND METROPARKS : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD PONSFORD : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Berea Municipal Court Case No. 94-TRC-3396-01 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DENNIS F. BUTLER, ESQ. JOHN W. HICKEY, ESQ. 900 Terminal Tower THERESA A. HICKEY, ESQ. Cleveland, Ohio 44113 3784 Pearl Road Cleveland, Ohio 44109 - 2 - DYKE, J.: Appellant was arrested and charged with driving while under the influence, R.C. 4511.19, on October 8, 1994. At the time of his arrest, an administrative license suspension was imposed by the arresting officer. Subsequent to his arrest, appellant submitted to a breathalyzer test which indicated a blood alcohol level of .15. Appellant filed two pretrial motions relevant to this appeal. A motion to suppress the evidence of the breathalyzer test was filed on October 28th. The basis of the motion was appellant's claim that the test was not administered in accordance with the Department of Health regulations. A motion to dismiss based upon constitutional double jeopardy grounds was filed on November 2, 1994. Appellant supported this motion with the argument that the administrative license suspension in addition to a sentence on the driving while under the influence charge would constitute two punishments for the same crime. After a November 9th hearing both of these motions were denied. The trial court determined that the administrative license suspension was a quasi-civil matter and did not place appellant in jeopardy. The court further found that the calibration of the breathalyzer was done with the proper solution, certified under the Department of Health seal, and the required radio frequency interference ("RFI") survey was properly performed on the machine. - 3 - On November 9th the court vacated appellant's administrative license suspension. After accepting appellant's no contest plea, the court sentenced appellant to a $500.00 fine plus thirty days incarceration, all but three days suspended. Appellant was also sentenced to a six month suspension of his driver's license, a year of probation and attendance at drunk driving school during the three days in lieu of incarceration. Appellant filed a timely notice of appeal from the denial of his motions to suppress and dismiss. He asserts four assignments of error. I THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE RELATING TO THE BREATH ALCOHOL TEST AS THE STATE FAILED TO ESTABLISH THE NECESSARY FOUNDATION FOR ADMISSION OF SAME, SPECIFICALLY THE STATE FAILED TO PROVE THAT THE TEST WAS PERFORMED IN ACCORDANCE WITH THE METHODS APPROVED BY THE DIRECTOR OF HEALTH RELATING TO "CALIBRATION" UNDER OHIO ADM. CODE 3701-53-04. II THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE STATE'S EXHIBIT 5, AN UNCERTIFIED "COPY" OF A PUBLIC RECORD CONTRARY TO EVID.R. 902, 1005, CRIM.R. 27, AND CIV.R. 44. Appellant argues the first and second assignments together, therefor we will review the merit of these arguments together. Appellant asserts that the results of his breath alcohol test were improperly admitted because the prosecution failed to lay a sufficient foundation to admit the evidence of calibration of the breathalyzer machine. Specifically, appellant argues that the affidavit which supports the validity of the solution used to - 4 - calibrate the breathalyzer was not authenticated. Appellant's argument is not well taken. The affidavit is necessary to lay a foundation proving that the breath alcohol results were analyzed in accordance with methods approved by the Director of Health, pursuant to R.C. 4511.19(D)(1). We find that there was sufficient evidence to authenticate and admit the affidavit validating the solution. Testimony was elicited at the pre-trial hearing on appellant's motion to suppress from Patrolman Dale Hallman to support admission of the solution affidavit. Hallman testified that the certificate was the same document he received when he purchased the batch of solution from the supplier. The municipal court judge found that the document had a seal and signatures from the Department of Health on it, and was therefor authenticated. After a thorough review of the case law, we acknowledge an apparent conflict between the jurisdictions in Ohio on the issue of what constitutes proper authentication of the affidavits accompanying bottles of breathalyzer calibration solution. Following a prior case in that jurisdiction, the Ross County Court of Appeals held that the "provisions of Evid.R. 901(A) require only that a proponent of a document produce `evidence sufficient to support a finding that the matter in question' is what the proponent claims it to be." State v. Easter (1991), 75 Ohio App.3d 22, 25, quoting from State v. Pariscoff (Mar. 13, 1990), Ross App. No. 1513, unreported. In Easter, the court - 5 - affirmed the admissibility of a batch and bottle affidavit, such as the one at issue in the present case, finding that the testimony of the record keeper at the highway patrol that he had personal knowledge of the receipt of the document and its filing with the highway patrol records supported the authenticity of the certificate. The appellate court in State v. Moss (March 15, 1996), Ross App. No. 95 CA 2089, unreported, held that authentication of the document was based upon the certification on the back of the document, bearing the signature of the director of alcohol testing for the Ohio Department of Health. See also State v. Lewis (Sept. 30, 1992), Portage App. No. 92-P-0013, unreported. The Franklin County Court of Appeals held that an uncertified document from the Department of Health, maintained in official police files was insufficient evidence to provide a foundation to admit the results of the blood alcohol test, pursuant to Evid.R. 902(4) and 1005. Columbus v. Robbins (1989), 61 Ohio App.3d 324. The court did not refer to a seal on the document nor to any signatures by Department of Health officials, however. Following Columbus the Clermont County Court of Appeals held that the certificate was not properly authenticated because the officer who had calibrated the breathalyzer had not compared his copy of the certificate with the original from the laboratory. State v. Brown (April 13, 1992), Clermont App. No. CA91-07-043, unreported. See also, Village of Kirkersville v. Burt (Nov. 25, 1994), Licking App. No. 94-CA-56, unreported. - 6 - We are persuaded by the analysis of this issue as set forth by the Ross County Court of Appeals in State v. Easter. We do not find that the rules of evidence require a prosecutor to bring someone from the Department of Health to authenticate the certificate which accompanies the bottles of calibrating solution. The document contains signatures and a seal from the State of Ohio, which we find sufficient to certify it. Furthermore, the testimony of an officer who procures the solution from the police equipment supplier and maintains the files at the station where the certificates are kept is sufficient evidence to allow a reasonable finder of fact to determine that the certificate is indeed what it purports to be. Ohio law is clear that it is within the sound discretion of the trial court to admit or exclude evidence. State v. Combs (1991), 62 Ohio St.3d 278. We find no abuse of discretion in the acceptance of the affidavit as a foundation for the admission of appellant's breath alcohol results based on the testimony of Patrolman Hallman and the seal on the document. Appellant's first and second assignments of error are overruled. III THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE RELATING TO THE BREATH ALCOHOL TEST AS THE STATE FAILED TO ESTABLISH THE NECESSARY FOUNDATION FOR ADMISSION OF SAME, SPECIFICALLY THE STATE FAILED TO PROVE THE TEST WAS PERFORMED IN ACCORDANCE WITH THE METHODS APPROVED BY THE DIRECTOR OF HEALTH RELATING TO "RFI" TESTING UNDER OHIO ADM. CODE 3701-53-02. - 7 - Appellant argues that the results of his breath alcohol test should have been suppressed because the prosecution failed to submit sufficient evidence to prove that the radio frequency interference ("RFI") test had been performed in accordance with the methods approved by the Director of Health. Appellant's argument is not well taken. The method prescribed by the Department of Health for testing the breathalyzer machine for radio frequency interference was followed according to the testimony elicited from Patrolman Hallman, with one small exception. Instead of beginning the RFI test from thirty feet from the machine and testing progressively closer to the machine in five foot intervals, the officers tested the machine from a distance of five feet and moved out to thirty feet, testing as they moved away from the machine in five feet increments. The trial court found this procedure to have been more than substantial compliance with the prescribed method. In fact, where substantial compliance is the requisite standard, the trial court judge found that "almost strict compliance" with the testing methods had been performed. (TR. 137). Appellant has failed to show any prejudice arising from the alteration in direction used by the officers testing the breathalyzer. Absent a showing of prejudice to the defendant, the results of an alcohol test administered in substantial compliance with the Ohio Administrative Code are admissible for a prosecution of driving under the influence of alcohol. - 8 - Elyria v. Conley (1994), 99 Ohio App.3d 40, 42. See also State v. Plummer (1986), 22 Ohio St.3d 292. We find no abuse of discretion in admitting the results of appellant's breath alcohol test in light of evidence of substantial compliance in administering the test. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO DISMISS, AND THEREBY VIOLATED APPELLANT'S RIGHT NOT TO BE TWICE PLACED IN JEOPARDY AS GUARANTEED BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. Appellant argues that his motion to dismiss should have been granted because the administrative suspension of his license coupled with the sentence he received for driving while under the influence constitutes a violation of his right against double jeopardy. Appellant's argument is without merit. The Ohio Supreme Court recently determined this issue in the case of State v. Gustafson (1996), 76 Ohio St.3d 425. The Supreme Court held that: The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution do not preclude criminal prosecution and trial of motorists for driving in violation of R.C. 4511.19 based upon, and subsequent to, the imposition of an administrative license suspension pursuant to R.C. 4511.191. State v. Gustafson (1996), 76 Ohio St.3d 425, at paragraph one of the syllabus. The Supreme Court found that the administrative - 9 - suspension could "fairly be characterized as remedial" and therefor was not a "punishment," which would preclude the further imposition of a criminal sentence. The Supreme Court also found that at the time the criminal penalty is imposed, the administrative license suspension should be vacated. The Court held: Accordingly, a sentencing court has judicial power pursuant to Sections 1 and 4, Article IV of the Ohio Constitution to order the "termination" of an administrative license suspension at the time of sentencing, as continuation of the ALS would result in unconstitutional application of R.C. 4511.191 to the criminal offender. To be "fairly characterized as remedial" rather than a punishment for double jeopardy purposes, an ALS must terminate upon sentencing for violation of R.C. 4511.191, if the ALS has not already expired by operation of law. State v. Gustafson, supra at 442. The trial court in the instant case vacated the administrative license suspension just prior to accepting appellant's no contest plea and sentencing him for driving while under the influence. Thus, no violation of appellant's constitutional right against double jeopardy occurred in the trial court proceedings. Appellant's fourth assignment of error is overruled. The trial court's denial of appellant's motion to suppress and motion to dismiss is affirmed. - 10 - 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 Berea 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. JAMES D. SWEENEY, P.J., AND McMONAGLE, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .