COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69376 CITY OF MIDDLEBURG HEIGHTS : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RICHARD A. TENAGLIA : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 16, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Berea Municipal Court Case No. 95 TRC 1413-01-02 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: PETER H. HULL 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: KAREN M. MORELL The Bevelin House 2913 Clinton Avenue Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Richard Tenaglia appeals from the Berea Municipal Court's denial of his motion to suppress results of a breathalyser test in which he alleged the test operator failed to observe him for twenty minutes prior to administration of the test as required by law. On April 10, 1995, Middleburg Heights police officer Raymond Bulka, who had observed Tenaglia's vehicle speeding and weaving as it traveled southbound on I-71, stopped the vehicle, administered field sobriety tests to Tenaglia, the driver, and then arrested Tenaglia at 1:55 a.m. for speeding, weaving, and driving under the influence of alcohol. Bulka then arranged for a vehicle tow and transported Tenaglia to the police station arriving around 2:13 a.m. At 2:28, officer Duane Funk, who had assisted Bulka at the scene of the arrest, administered the BAC Verifier test to Tenaglia which revealed .215 grams of alcohol per 210 liters of breath. The police then issued an additional citation for excessive blood alcohol content. Tenaglia then moved the court to dismiss the BAC charge asserting that pursuant to Ohio's Administrative License Suspension Law, the police had already seized his Ohio driver's license and to proceed with additional charges would twice place him in jeopardy for the same offense. On July 10, 1995, the court granted the motion and dismissed the BAC charge. - 3 - Thereafter, Tenaglia moved to suppress the results of the BAC Verifier test asserting that the testing officer, Duane Funk had not observed him for twenty minutes prior to the test. The court overruled the motion noting that the "combined continuous observation of Defendant by the two officers was from 1:55 A.M. to 2:28 A.M." and concluding, "the 20 minute waiting period was satisfied." Tenaglia then plead no contest to driving under the influence of alcohol, the court found him guilty, imposed sentence and stayed execution pending appeal. On appeal, the following assignment of error is presented for our review. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE B.A.C. VERIFIER TEST RESULTS WHEN THE CERTIFIED OPERATOR FAILED TO OBSERVE THE DEFENDANT FOR 20 MINUTES PRIOR TO THE ADMINISTRATION OF THE TEST, PURSUANT TO THE RULES PROMULGATED BY THE OHIO DEPARTMENT OF HEALTH. Tenaglia argues the trial court erred in denying the motion to suppress the BAC Verifier test results because the state failed to provide evidence that the test operator observed him for twenty minutes prior to the breath test. The City of Middleburg Heights contends that the trial court correctly overruled the motion to suppress because the police officers' actions constituted either substantial or full compliance with proper testing procedures. The issue then presented for review on this appeal is whether the officer who administers the BAC Verifier Test and who - 4 - fills out the BAC Data Master information sheet must also be the individual who observes the test subject for twenty minutes prior to test administration, or, as here, whether two officers who have conducted the observation for a combined total of twenty minutes fulfill requirements of the testing procedure. The regulations setting forth approved testing methods and procedures for measuring breath/alcohol concentrations are issued by the Ohio Department of Health and are contained in O.A.C. 3701-53-02(B) which states in relevant part: * * * Breath samples shall be analyzed according to the operational checklist for the instrument being used, as set forth in appendices A to G to this rule. * * * Appendix D of the rule contains the test report form for the BAC Data Master, the instrument used in this case. The first directive on the operational checklist states, "Observe subject for twenty minutes prior to prevent oral intake of any material." While this rule requires a minimum observation period of twenty minutes, it does not specifically mandate that the observation be exclusively conducted by the testing officer. In State v. Steele (1977), 52 Ohio St.2d 187, the Ohio Supreme Court addressed the twenty-minute observation directive. In that case, an Ohio State Highway Patrol officer stopped the defendant, administered field sobriety tests, arrested the defendant for driving while intoxicated, and returned to the patrol post for a breathalyzer test. The arresting officer admitted that he had not maintained continuous visual contact - 5 - with the defendant while he got out of his vehicle and walked around it before removing the defendant from the vehicle and entering the patrol post. The Ohio Supreme Court discussed the reason for the time period in its opinion and concluded that the test had been administered in accordance with the requirement that the defendant be observed for twenty minutes before the test, and held that rigid compliance with test procedures is not a prerequisite to the admissibility of breath-alcohol test results. Since that decision, various courts of appeals in this state have reached different conclusions on compliance with O.A.C. 3701-53-02. Specifically, courts differ when the testing officer did not personally observe the subject for twenty minutes prior to administering the test, and when the twenty-minute observation period consists of the individual observation times of two or 1 more officers. Given the divergence of opinion among appellate districts on the issue of whether combining observation time complies with the procedural test requirements, we also consider the purpose behind 1 See Elyria v. Conley (1994), 99 Ohio App.3d 40; State v. Boyd (Oct. 18, 1993), Brown App. No. CA93-04-002, unreported; State v. Parks (May 8, 1991), Hamilton App. Nos. C-900291, C- 900337, unreported; Village of Boliver v. Dick (December 27, 1994), Tuscarawas App. No. 94AP040025, unreported; State v. Morrow (Dec. 11, 1991), Guernsey App. No. 91-05, unreported, holding that the number of officers who conduct the observation does not matter. But, see, State v. Fraley (1991), 77 Ohio App.3d 104; State v. Strock (August 30, 1993), Columbiana App. No. 92-C-35, unreported, holding that the testing officer must personally conduct the observation. - 6 - the twenty-minute observation period. As stated in the form itself, the observation period is required to prevent the oral intake of any material which, if ingested, might produce an inaccurate test result, and the burden is upon appellant to prove ingestion during the pre-test time period. State v. Adams, (1992), 73 Ohio App.3d 735. Furthermore, a careful reading of the facts in Steele, supra, leads to an inference that the officers may have combined their observation time in that case. The facts there show that the arresting officer stopped the defendant at 2:30 a.m., administered sobriety tests, and drove eight minutes back to the patrol post. Once there, a senior breathalyzer operator assisted the arresting officer in setting up the machine, and the test was administered at 2:57 a.m., only twenty-seven minutes after the initial stop and less than twenty minutes after arriving at the patrol post. Based on this factual scenario, the senior breathalyzer operator could not have observed the defendant for twenty minutes because the defendant was not physically in his presence for twenty minutes before the test, and had he done so, the testimony about what the arresting officer had done would not be so significant in determining the outcome of the case. In this case, the arresting officer, Bulka, stopped the defendant at approximately 1:55 a.m., returned to the station with him, and observed him until Officer Funk administered the BAC test at 2:28 a.m. Although, as the trial court found, - 7 - Officer Funk only observed Tenaglia for eleven minutes prior to administering the test, Tenaglia had been observed by officers Bulka and Funk for a combined total of more than twenty minutes prior to the test. This combined observation time complies with the requirements of the testing procedure because nothing prevents several officers from conducting the required observation. Furthermore, Tenaglia did not present evidence that he ingested any material prior to the test which may have affected the test result. We conclude, therefore, that the police officers in this case complied with required testing procedures by observing the appellant for twenty minutes prior to administration of the BAC Verifier test. Accordingly, the trial court properly overruled the motion to suppress we affirm that decision. There being no other error assigned, the judgment of the trial court is affirmed and the stay of execution of sentence has expired. Judgment affirmed. Sentence ordered into execution. - 8 - 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. MATIA, P.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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, .