COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68962 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION THOMAS TAYLOR : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 23, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. CR-95 TRC 000007A JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: CAROLYN W. ALLEN Chief Prosecuting Attorney CAROL M. SKUTNIK, Assistant Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOHN W. HICKEY Attorney at Law 3794 Pearl Road Cleveland, Ohio 44109-2799 TIMOTHY E. McMONAGLE, J.: This is an appeal from a judgment of the Cleveland Municipal Court in which the appellant, following a plea of no contest, was found guilty of driving under the influence of alcohol in viola- tion of Cleveland Municipal Ordinance Section 433.01(A)(3). Section 433.01(A)(3) prohibits the operation of a motor vehicle within the city if the person has a concentration of ten one- hundredths (0.10) of one gram or more by weight of alcohol per two hundred ten-liters of his breath. The record discloses that on December 31, 1994, plaintiff- appellant was involved in a motor vehicle accident. Patrolman William Holby of the Cleveland Police Department was dispatched to the scene of the accident. Upon arrival at the scene, Holby approached the plaintiff, who was seated in the driver's seat of his automobile. While inquiring concerning plaintiff's well- being, Holby observed that plaintiff's eyes were red and glassy and that he smelled of alcohol. After plaintiff failed two field sobriety tests, he was placed under arrest for driving under the influence of alcohol. He was then transported to the Second District Police Station, where he submitted to a breath test on a "BAC DataMaster" breath testing instrument. Plaintiff's breath was - 3 - found to contain 0.214 grams of alcohol per two hundred ten-liters of breath, over twice the legal limit of Section 433.01(A)(3). Plaintiff filed a motion to suppress all evidence, including the results of the breath test. The trial court overruled plain- tiff's motion to suppress. Plaintiff-appellant now appeals, assigning five errors for review, each of which urges that the trial court erred in admit- ting into evidence at the suppression hearing, over his objec- tions, certain documents necessary to establishing a foundation for 1 the admission of the results of his breathalyzer test at trial. In reviewing the trial court's ruling on appellant's motion to suppress, we are duty bound to review the record and to inde- pendently determine whether, as a matter of law, the trial court erred in applying the substantive law to the facts of this case. State v. Klein (1991), 73 Ohio App.3d 486, 488; State v. Gordon (1994), 95 Ohio App.3d 334. Additionally, we note that the decision to admit or exclude evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. Xie (1992), 62 Ohio St.3d 521. When applying the abuse of discretion standard, a reviewing court is not free to merely 1 See Appendix A for Assignments of Error. - 4 - substitute its judgment for that of the trial court. See In re Jane Doe 1 (1991), 57 Ohio St.3d 135, citing Berk v. Matthews (1990), 53 Ohio St.3d 161. In the case sub judice, the facts are not the center of con- troversy on appeal. Rather, appellant asserts the trial court erred when construing the requirements of Ohio Admin. Code 3701- 53-04, which sets forth department of health regulations which impose certain requirements for the admission in evidence of alcohol tests. The burden is upon the state to show that the breath test was properly administered in substantial compliance with the Ohio Administrative Code and department of health regula- tions before the test results can be admitted at trial. R.C. 4511.19(D); see State v. Plummer (1986), 22 Ohio St.3d 292; State v. Steele (1977), 52 Ohio St.2d 187; Cincinnati v. Sand (1975), 43 Ohio St.2d 79; Aurora v. Kepley (1979), 60 Ohio St.2d 73. In his first assignment of error, appellant asserts that the trial court's admission of State's Exhibit One, which consists of the calibration checklist and, attached to that, the BAC Data- Master evidence ticket, was improper. The issue is of consequence to the appellant inasmuch as such calibration checklists lay a foundation for showing that a person's breath was analyzed in accordance with methods approved by the director of health, thereby allowing the admission of breath test results into evidence at trial. See, generally, Cincinnati v. Sand, supra, at paragraph two of the syllabus. Appellant argues that the prosecution failed to - 5 - show that the BAC DataMaster had been properly calibrated within the seven days prior to the test of appellant since the result of the calibration check was not recorded by the senior operator on the calibration checklist as required by Ohio Admin. Code 3701- 53-04(A)(1). Section 3701-53-04(A)(1) provides as follows: (A) Approved evidential breath testing in- struments shall be checked for calibration no less frequently than once every seven days by a senior operator using a solution of ethyl alcohol approved by the director of health and using the calibration checklist for the instrument being checked, as set forth in appendices A to G to this rule. (1) A calibration check of a breath testing instrument is valid when the result of the calibration check is at target value plus or minus five one- thousandths (0.005) grams per two hun- dredth ten liters. The results of a calibration check shall be recorded on a calibration checklist *** (Emphasis added.) Section 3701-53-04(A)(1) only requires that the results of a calibration check be "recorded" on a calibration checklist. In this regard, the senior operator who performed the calibration check, Officer Paul Bledsoe, testified that the BAC DataMaster evidence ticket, which is affixed to the calibration checklist, is the print-out of the calibration check results. The affixment of the results of the calibration check to the calibration checklist constitutes substantial compliance with the requirements of 3701-53-04. State v. Plummer, supra. We are not - 6 - persuaded, as argued by appellant, that the fact that Bledsoe did not transpose the result of the calibration check from the evidence ticket to the calibration checklist constitutes a failure to substantially comply with the requirements of Ohio Admin. Code 3701-53-04(A)(1). The first assignment of error is overruled. In his second assignment of error, the appellant asserts that the trial court erred in admitting the test report form which contained the results of his breath test for the reason that the permit number issued by the Ohio Department of Health to the senior operator who performed the breath test did not appear on the test results form, which appellant insists is a requirement of Ohio Admin. Code 3701-53-09. Although the issue was not raised by the prosecutor, we ini- tially question whether appellant can now raise as error the ad- mission of State's Exhibit Nine, for the reason stated above, since appellant expressly waived consideration of the issue of whether the operator possessed the requisite permit and qualifications at the trial level. Given this, we fail to see how the failure of the operator to place his correct permit number on the test results form could prejudice appellant. In any event, in the interests of justice, we will further address appellant's second assignment of error. Ohio Admin. Code 3701-53-09 provides, in part, as follows: - 7 - Permits (A) Persons desiring to function as labora- tory directors, laboratory technicians, senior operators, and operators shall apply to the director of health for individual permits on forms prescribed and provided by the director. A separate application shall be filed for each breath testing instrument or laboratory technique or method for which a permit is sought. (B) The director shall issue appropriate permits to perform tests to determine the amount of alcohol in a person's blood, breath, urine, or other bodily substance to persons who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code or under paragraph (D) of this rule. Individuals holding permits issued under this rule shall use only those laboratory technique or methods or evidential breath testing instruments for which they have been issued permits. (C) Permits issued under paragraph (B) of this rule shall expire two years from the date issued, unless revoked prior to the expiration date. A person holding a permit may seek issuance of a new permit by the director of health under paragraph (B) of this rule by filing an application with the director in accordance with paragraph (A) of this rule no sooner than six months before the expiration date of the current permit. The director shall not issue a new permit if the permit holder is in proceedings for revocation of his or her current permit under rule 3701-53-10 of the Administrative Code. This section of the Administrative Code does not require the operator to place his permit number on the test results form. This section merely requires that a person desirous of functioning as an operator or senior operator obtain a permit to do so from the director of the department of health. Accordingly, the second assignment of error is overruled. - 8 - In his third assignment of error, appellant argues that the trial court's admission of the Calibration Solution Certificate was improper because the prosecution did not lay a proper foundation for the exhibit's authenticity. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Evid.R. 901. Evid.R. 901(B) provides illustrations of means to authenti- cate a document. Relevant to the facts herein are the illustra- tions in Evid.R. 901(B)(7) and (9), which state: (7) Public Records or Reports. Evidence that **** a purported public record, report, statement or data compilation, in any form, is from the public office where items of this nature are kept. * * * (9) Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. The ultimate issue facing a trial court is whether the authentication testimony is sufficiently complete that it con- vinces the court of the improbability of the original item having been exchanged with another or otherwise tampered with. State v. Easter (1991), 75 Ohio App.3d 22. Once a trial court has answered that question, the court's ruling will be reversed only upon a showing of an abuse of discretion. Id. - 9 - At the hearing, there was testimony from Officer Adams which attempted to authenticate the Calibration Solution Certificate, which specifies the alcohol concentration contained in the bottle of solution used in the BAC DataMaster to check for calibration. Officer Adams testified that the calibration solution and accom- panying certificate, which were used to calibrate the BAC Data- Master prior to appellant's test, were supplied by his administra- tive sergeant. He obtained the certificate from the Second Dis- trict Police Station, where such documents are kept. Officer Adams further testified that the solution batch number specified on the certificate was the same number contained on the BAC DataMaster evidence ticket and that the results of the calibration check he performed comported with the alcohol concentration contained in the bottle of solution as stated on the Calibration Solution Certificate. Based upon a review of the testimony and State's Exhibit Seven, we find there was sufficient evidence to support the trial court's finding that the Calibration Solution Certificate was properly authenticated. The third assignment of error is overruled. In his fourth assignment of error, appellant argues that the trial court erred in admitting into evidence the radio frequency interference (RFI) survey. Although not entirely clear, appellant seems to argue that the RFI survey was not conducted by a senior - 10 - operator and, therefore, it does not comply with the requirements of Ohio Admin. Code 3701-53-02(C) and should have been suppressed. An RFI survey is a test used to determine the amount of interference, if any, created by radios transmitting within the environment of the breath machine. State v. Cheeseboro (Mar. 6, 1996), Highland App. No. 95CA871, unreported. The electromagnetic field produced by a nearby radio transmitter can affect the re- sults of a test being conducted by a breath-testing machine. State v. Adams (1992), 73 Ohio App.3d 735. Ohio Admin. Code 3701-53-02(C) provides that an RFI survey be performed by a senior operator. The operator does not, how-ever, have to produce a copy of his certification at a hearing on a motion to suppress. He need only offer positive evidence that he was qualified by the department of health to administer the test at the time he did so. State v. Adams, supra, at 746. Officer Adams's testimony substantiates that fact, and appellant offered no contrary evidence. The fourth assignment of error is overruled. In his fifth assignment of error, appellant argues that the trial court erred by admitting into evidence the results of his breathalyzer test because there was no expert testimony presented by the prosecution at the suppression hearing to explain what the .214 breath alcohol concentration reading meant. Despite appellant's argument to the contrary, expert testi- mony is not required at a suppression hearing where no determina- - 11 - tion of guilt is to be made. State v. French (1995), 72 Ohio St.3d 446; Newark v. Lucas (1988), 40 Ohio St.3d 100. The fifth assignment of error is overruled. The judgment of the trial court is hereby affirmed. - 12 - 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 Cleveland 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. DAVID T. MATIA, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - i - APPENDIX A ASSIGNMENT OF ERROR NO. I THE COURT ERRED IN ADMITTING EXHIBIT #1, WHICH PURPORTS TO BE A CALIBRATION FOR THE BAC DATAMASTER ON DECEMBER 24, 1994, BECAUSE THE TEST RESULT IS NOT SHOWN ON THE EXHIBIT AND THEREFORE THE CITY FAILED TO SHOW THAT THE TEST WAS CONDUCTED IN COMPLIANCE WITH THE OHIO ADMINISTRATIVE CODE SECTION 3701-53-04. ASSIGNMENT OF ERROR NO. II THE COURT ERRED INTO ALLOWING INTO EVIDENCE THE STATES [SIC.] EXHIBIT #1 FOR THE REASON THE TESTIMONY REGARDING THE ADMISSION DID NOT PROPERLY LAY THE NECESSARY FOUNDATION AND SUBSTANTIALLY FAILED TO COMPLY WITH THE RE- QUIREMENTS OF THE OHIO ADMINISTRATIVE CODE. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT, [SIC.] BY ADMITTING INTO EVIDENCE STATES [SIC.] EXHIBIT #7, AN UNCERTIFIED "COPY" OF A PUBLIC RECORD CONTRARY TO EVID.R. 902, CRIM.R. 27 AND CIV.R. 44. ASSIGNMENT OF ERROR NO. IV THE COURT ERRED IN ALLOWING INTO EVIDENCE THE STATES [SIC.] EXHIBIT NO. 3, THE RFI SURVEY DATED JULY 14, 1994, FOR THE REASON THE STATE FAILED TO SHOW THE TEST WAS CONDUCTED BY A SENIOR OPERATOR IN COMPLIANCE WITH OAC 3701- 53-02(C). ASSIGNMENT OF ERROR NO. V THE TRIAL COURT ERRED BY ADMITTING INTO EVI- DENCE, [SIC.] TEST RESULTS AS EVIDENCED BY STATES [SIC.] EXHIBIT N. [SIC.] 9 BECAUSE THERE WAS NO EVIDENCE OR EXPERT TESTIMONY WHICH .