COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69475 : CITY OF LYNDHURST : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DAVID ROSS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 5, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Lyndhurst Municipal Court Case No. 95 TRC 02630 B JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: IRL D. RUBIN, ESQ. MICHAEL S. LEAR, ESQ. 1468 W. 9th Street Zukerman & Associates Cleveland, Ohio 44113 160 Signature Square I 25201 Chagrin Blvd. Cleveland, Ohio 44122 -2- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant, David Ross, appeals his conviction for driving while under the influence within the meaning of Lyndhurst Codified Ordinance 434.01(a)(3) and assigns the following errors for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTION TO SUPPRESS BREATH-ALCOHOL ANALYSIS RESULT. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO SUPPRESS APPELLANT'S PRE-MIRANDA STATEMENT THAT HE HAD DRIVEN A JEEP TO THE LYNDHURST POLICE DEPARTMENT AND/OR BY FAILING TO SUPPRESS ALL OF APPELLANT'S POST- MIRANDA STATEMENTS IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS AGAINST SELF-INCRIMINATION AND TO THE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTION TO SUPPRESS FOR WANT OF PROBABLE CAUSE TO ARREST FOR D.U.I. IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTION TO DISMISS (DOUBLE JEOPARDY) IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO BE FREE FROM DOUBLE JEOPARDY, GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the decision of the trial court. The apposite facts follow. On Wednesday, March 1, 1995 at approximately 5:31 p.m., David Ross was driving a red Jeep Cherokee and was involved in an -3- accident on Irene Road, near the intersection of Irene and Richmond Road in the city of Lyndhurst. Ross left the scene of the accident and subsequently went to the Lyndhurst Police Station to report the accident. When he arrived at the police station, Officer Michael Muzychenko asked him why he left the scene of the accident. Ross indicated he was afraid because he had been drinking. Muzychenko observed that Ross was "swaying," and "a little unsteady, a little unsure of himself." Muzychenko then asked Ross if he brought the jeep. Ross indicated that he drove it. After these initial questions, Ross was placed under arrest, read his Miranda rights, booked, and required to take a blood alcohol content test. On the BAC Verifier, he registered a blood alcohol content of .241. Ross was issued five citations under the Lyndhurst Codified Ordinances, for driving under the influence, 434.01(a)(1) and 434.01(a)(3), driving under suspension, 436.07, leaving the scene of an accident (hit-skip), 436.14, and failure to maintain an assured clear distance, 434.03. Ross moved to suppress his pre-Miranda statements at the police station and to suppress the results of his blood alcohol content test by challenging the validity of the Radio Frequency Interference (RFI) survey. The trial court conducted a hearing on the motions and two police officers testified, Muzychenko and John F. Nicholl. Muzychenko testified to the circumstances of the arrest and Nicholl testified to his performance of the RFI survey. -4- After the hearing, the motion to suppress was denied, and the case was scheduled for trial. On the day of trial, Ross entered pleas of no contest to hit- skip and driving under the influence (with a prohibitive blood alcohol content). The remaining charges were dismissed. For hit- skip, Ross was fined $250.00, sentenced to three days of incarcer- ation and his license was suspended for 90 days; the three days were suspended and he was placed on one year probation. For driving under the influence, Ross was fined $550.00, sentenced to three days of incarceration, and his license was suspended for 180 days. The sentence was suspended pending appeal, and Ross now appeals from the conviction for driving under the influence only. In his first assignment of error, Ross argues the trial court erred as a matter of law in denying his motion to suppress the results of the blood alcohol content test because the RFI survey was not properly performed. "In any criminal prosecution for a violation of this section, the court may admit evidence on the concentration of alcohol, drugs of abuse, or alcohol and drugs of abuse, in the defendant's blood, breath, or urine, or other bodily substance, at the time of the alleged violation as withdrawn within two hours of the time of such alleged violation. *** Such bodily substance shall be analyzed in accordance with methods approved by the Ohio Director of Health by an individual possessing a valid permit issued by the Director pursuant to Ohio R.C. 3701.143." Lyndhurst Codified Ordinance 434.01(e); R.C. 4511.19(B). -5- The guidelines for breath test instruments are set forth in Ohio Administrative Code 3701-53-02. In pertinent part, it provides: "(C) A radio frequency interference (RFI) survey shall be performed by a senior operator for each breath testing instrument***," including the BAC Verifier. "RFI surveys performed on and after the effective date of this amendment shall be performed in accordance with the instructions on the form set forth in appendix H to this rule." Appendix H provides: "Using the diagram, sketch the floor plan surrounding the instrument. If radios are capable of multiple band transmission, each band is to be tested, using a separate form for each band. When the instrument has reached operating temperature, two persons and two hand-held radios are needed for testing. Senior operator should remain with instrument while other person transmits by keying radio. Person assisting starts at 30 feet from instrument on line 1 proceeding to instrument as physically possible. *** "Repeat above detailed tests for lines 2 through 8" (as indicated in the diagram on the form). The admissibility of chemical analysis test results to establish blood alcohol content under R.C. 4511.19 or any comparable city ordinance requires the test be performed in substantial compliance with Ohio Department Health regulations as set forth in the Ohio Administrative Code. State v. Plummer (1986), 22 Ohio St.3d 292. An RFI survey of a BAC Verifier breath test instrument was not in substantial compliance with Ohio Adm. Code 3701-53-02, Appendix H, when conducted by a person using only -6- one radio from a test perimeter of between 7 and 24 feet on each of the eight axis points instead of 30 feet as required. State v. Asman (1989), 63 Ohio App.3d 535. See, also, State v. Pedigo (June 27, 1989), Franklin App.Nos. 89AP-120, 121, 124-127, unreported. The failure to begin testing from a perimeter of thirty feet on all axis points was not in substantial compliance. State v. Taylor (Apr. 3, 1991), Medina App.No. 1936. The failure to sketch the floor plan, use two people both with hand-held radios, and to test each band was not in substantial compliance. Cleveland v. Greissing (June 6, 1991), Cuyahoga App.No. 60666, unreported. The failure to use two people with two radios in an RFI survey was not in substantial compliance. Cleveland v. Patalon (Dec. 10, 1992), Cuyahoga App.No. 61401, unreported. In this case, two surveys were conducted by Officer Nicholl, one on December 9, 1993 and one in August of 1994. In the first test, he recorded the results on an old 1986 form from Ohio Adm. Code 3701-53-02, Appendix G, which was replaced by a new form in 1990 after the code section was modified. Although he used the old form during the first, the instructions on that form required a sketch of floor plan, two persons using two hand-held radios, and testing from thirty feet. The second test was not recorded, although Nicholl indicates the procedures used and the results were the same as in the first. Nicholl was a senior operator, and performed the survey on all six radio frequencies used by the police department and filled out a separate survey form for each frequency. Nonetheless, there were -7- several aspects of his survey which fell short of the requirements set forth in Ohio Adm. Code 3701-53-02. Nicholl began the survey from the following distances on the eight axes around the BAC Verifier: First axis 28 feet Second axis 15 to 20 feet Third axis 15 to 18 feet Fourth axis 4 to 5 feet Fifth axis 4 to 5 feet Sixth axis 3 to 5 feet Seventh axis 4 feet Eighth axis 7 to 8 feet In conducting the survey, he limited himself to the parameters of the room in which the BAC Verifier was being used and failed to sketch the floor plan of the room. Nicholl came close (28 feet) to beginning from thirty feet away on only one axis; the test on the other seven axes points fell far short (4 to 20 feet) of the required parameters. Compare with Asman, supra (held not in substantial compliance where tests limited to parameters of the room and ranged from 7 to 24 feet). In taking the limited survey, Nicholl's used two radios, but conducted the survey by himself, by placing one radio on top of the BAC Verifier and approaching the instrument from within the parameters of the room. Although Nicholl limited himself to the parameters of the room, on cross-examination, he admitted that it -8- was possible to begin at 30 feet on each of the parameters but it would have required a second person to perform the survey. The results of the surveys indicated radio frequency inter- ference was only detected less than one foot from the machine. Nonetheless, the fact that radio frequency interference was only detected at a distance of less than one foot is not an assurance it was not present at some further point on the thirty foot axes. See Taylor citing Columbus v. Soltesz (Sept. 21, 1989), Franklin App.No. 89AP83-84, unreported. The area within thirty feet, but outside Nicholl's limited survey could have been the source of radio interference. There are several problems with the RFI surveys conducted by Nicholl. The most recent test was not even documented and, in the test before that one, the floor plan of the room was not sketched. The surveys were performed with one person and, more than any problem, the survey was not performed from thirty feet on all of the eight axes. In evaluating all aspects of the surveys in this case, we find they were not conducted in substantial compliance with Ohio Adm. Code 3701-53-02. Accordingly, the blood alcohol content test of David Ross' breath was inadmissible and should have been suppressed. The suppression of the blood alcohol content test in this case eliminates evidence essential to a conviction under Lyndhurst Codified Ordinance 434.01(a). The ordinance provides: "No person shall operate any vehicle within the Municipality if any of the following applies: *** (3) The person has a concentration of ten- -9- hundredths of one gram or more by weight of alcohol per 210 liters of his or her breadth ***. Lyndhurst Codified Ordinance 434.01(a); R.C. 4511.19(A)(3). The hit-skip conviction still stands because Ross only appealed this one driving under the influence offense. Having found the blood alcohol content tests should have been suppressed, the conviction in this case can only be reversed. Because we reverse the conviction in the disposition of the first assignment of error, the other assignments of error are moot. Judgment reversed. -10- This cause is reversed. It is, therefore, considered that said Appellant recover of said Appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. NAHRA, J., CONCUR. O'DONNELL, J., CONCURS IN JUDGMENT ONLY PATRICIA ANN BLACKMON PRESIDING 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 .