COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69679 CITY OF LYNDHURST : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WAYNE PHELPS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Lyndhurst Municipal Court, No. 95-TRC-2971A. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Irl D. Rubin, Esq. 35401 Euclid Avenue Suite 101 Willoughby, OH 44094 For Defendant-Appellant: Michael S. Lear, Esq. Zukerman & Associates 2000 E. 9 Street Suite 700 Cleveland, OH 44115 -2- DAVID T. MATIA, J.: Wayne Phelps, defendant-appellant, appeals from his conviction of driving under the influence of alcohol and operating a motor vehicle with a prohibited breath-alcohol content. Defendant- appellant raises four assignments of error. This court, finding error, reverses and remands defendant-appellant's conviction. I. STATEMENT OF FACTS On March 11, 1995, Wayne Phelps, defendant-appellant, was stopped by Officer Robert Sedlack of the City of Lyndhurst Police Department for speeding. Officer Sedlack smelled a strong order of alcohol coming from defendant-appellant. Accordingly, Officer Sedlack asked defendant-appellant to perform a number of field sobriety tests. As defendant-appellant was unable to perform these sobriety tests to the officer's satisfaction, defendant- appellant was arrested and taken to the City of Lyndhurst Police Station. While at the station, agents of the City of Lyndhurst requested, and defendant-appellant consented to, the taking of a breath alcohol test ("BAC"). The result was .187 grams of alcohol per 210 liters of breath. Defendant-appellant was charged with operating a vehicle while under the influence of alcohol, operating a motor vehicle with a prohibited breath- alcohol content and speeding. On May 4, 1995, defendant-appellant, by and through counsel, filed a motion to suppress the BAC results. On August 23, 1995, the parties stipulated to the transcript and exhibits from a suppression hearing in a case captioned City of Lyndhurst v. -3- David Ross, Lyndhurst Court Case No. 95TRC02630, for purposes of their May 4th motion to suppress which contained similar issues of fact and law. A hearing was held and the motion was denied on September 15, 1995. On September 28, 1995, defendant-appellant's license was suspended for 180 days pursuant to R.C. 4511.191 (with 90 days credited). Prior to trial, the City of Lyndhurst filed a motion in limine and/or motion to quash relative to questioning relating to the radio frequency interference ("RFI") survey which was the subject of the motion to suppress. Said motions were granted on September 27, 1995. Prior to trial, defendant-appellant pled no contest to the speeding charge. During the jury trial, defendant-appellant discovered that a police videotape of his field sobriety tests was created but subsequently destroyed. Defendant-appellant motioned to dismiss. The motion was denied and defendant-appellant was convicted of both driving under the influence of alcohol and operating a motor vehicle with a prohibited breath-alcohol content. This timely appeal follows. II. FIRST ASSIGNMENT OF ERROR Wayne Phelps, defendant-appellant, states as his first assignment of error: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTION TO SUPPRESS BREATH-ALCOHOL ANALYSIS RESULTS. -4- A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING HIS MOTION TO SUPPRESS. Defendant-appellant argues the trial court abused its discretion in denying his motion to suppress. Specifically, defendant-appellant argues the RFI survey performed by an officer did not meet the specifications as set forth in O.A.C. 3701-53- 02. Defendant-appellant's first assignment of error is well taken. B. STANDARD OF REVIEW: MOTION TO SUPPRESS. A trial court's decisions as to whether evidence should be admitted could only be reversed on appeal if the trial court abused its discretion. State v. Wilson (1993), 91 Ohio App.3d 611; State v. Williams (1992), 82 Ohio App.3d 39. The Ohio Supreme Court has stated that the term "abuse of discretion" connotes more than an error in judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151. C. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS. Wayne Phelps, defendant-appellant, argues the state did not meet its burden in establishing the police substantially complied with RFI testing procedures set forth in O.A.C. 3701-53-02 (appendix) which provides in pertinent part: Using the diagram (page 2), 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 -5- testing. Senior operator should remain with the 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. To determine RFI affected zones, refer to instructions below for instrument being tested: INTOXILYZER 5000/BAC VERIFIER/BAC DATAMASTER: These instruments are protected from interfering radio frequencies by an internal RFI detector. Confirm operation of the detector by placing the instrument in subject test mode, and transmit while approaching the instrument. When instrument detects radio interference, mark diagram with an 'X' at farthest point from instrument that interference is noted. The purpose of the RFI survey is to determine whether the environment in which the BAC Verifier operates contains electromagnetic or radio interference that may affect operation of the breath-testing instruments. State v. Adams (1992), 73 Ohio App.3d 735; City of Highland Heights v. Page (February 17, 1994), Cuyahoga App. No. 64381, unreported. For this reason, the admissibility of test results to establish alcohol concentration under R.C. 4511.19 turns on substantial compliance with ODH regulations. Defiance v. Kretz (1991), 60 Ohio St.3d 1; State v. Plummer (1986), 22 Ohio St.3d 292. In the case sub judice, the parties stipulated to the facts and exhibits adduced at the proceedings in the case captioned City of Lyndhurst v. David Ross for purposes of this appeal. In that case, the RFI testing/survey was conducted by the same Officer Nicholl who testified that since he was the only officer conducting the RFI survey, he put one radio on the BAC verifier -6- and walked around the room with another radio transmitting a radio frequency until he could see whether the BAC verifier picked up the transmission. However, since the officer was the only individual performing the survey, he was unable to test the machine from thirty feet on any of the eight axes surrounding the machine as it would have taken him outside the confines of the room rendering him unable to see whether or not the radio on the BAC verifier had detected RFI. Finally, the officer testified that he did not record the results of the RFI survey in the diagram as required by O.A.C. 3701-53-02. See City of Cleveland v. Greissing (June 6, 1991), Cuyahoga App. No. 60666, unreported. It is well established that failure to use two individuals and two radios when testing a BAC machine has been found to fall short of substantial compliance with the requirements of O.A.C. 3701-53-02(C), Appendix. See State v. Asman (1989), 63 Ohio App.3d 535; City of Cleveland v. Patalon (Dec. 10, 1992), Cuyahoga App. No. 61401, unreported. However, we hold that the fact two individuals were not used in the RFI survey is not fatal to the state's claim of substantial compliance as the two radios were used in their intended manner. What does not constitute substantial compliance of O.A.C. 3701-53-02, however, is the officer's inability to test the entire thirty-foot axis surrounding the machine. The state's failure to fully test all eight axes to a distance of thirty feet makes it possible that RFI could indicate a higher level of alcohol in a person's blood actually exists. The trial court -7- abused its discretion in failing to suppress the results of defendant-appellant's breath test. See State v. Taylor (April 3, 1991), Cuyahoga App. No. 1936, unreported; State v. Pedgio (June 27, 1987), Franklin App. No. 89AP-120 through 127, unreported; State v. Allen (May 8, 1995), Clinton App. No. CA94-10-028, unreported. Defendant-appellant's first assignment of error is well taken. III. SECOND ASSIGNMENT OF ERROR Wayne Phelps, defendant-appellant, states as his second assignment of error: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING THE CITY'S MOTION IN LIMINE AND MOTION TO QUASH SUBPOENA AND BY DENYING APPELLANT THE OPPORTUNITY TO FULLY CROSS-EXAMINE CITY WITNESSES WITH RESPECT TO D.U.I. FIELD TESTING TRAINING AND RFI PROCEDURES IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW, AND TRIAL BY JURY. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT-APPELLANT THE OPPORTUNITY TO CROSS-EXAMINE THE ARRESTING OFFICER REGARDING THE FIELD SOBRIETY TEST. Initially we note that the first assignment of error has rendered defendant-appellant's second argument as it pertains to the RFI testing moot and will therefore not be addressed. See App.R. 12(A)(1)(c). In the remainder of defendant-appellant's assigned error he argues the trial court abused its discretion in granting the state's motion in limine and oral motion to quash subpoenas relative to the cross-examination of the arresting officer as it pertains to his training and the sobriety field testing procedures. -8- Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: ABUSE OF DISCRETION The Sixth Amendment of the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." (Emphasis added). Section 10, Article I of the Ohio Constitution provides in pertinent part: "*** In any trial, in any court, the party accused shall be allowed to appear and defend in person with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf ***." (Emphasis added). The right of confrontation "means more than being allowed to confront the witness physically." Davis v. Alaska (1974), 415 U.S. 308, 315. Indeed, "[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Id. at 315-316. Evid.R. 611(B) states: (B) Scope of cross-examination. Cross- examination shall be permitted on all -9- relevant matters and matters affecting credibility. It has been well established that the scope of cross- examination lies within the sound discretion of the trial court and will only be reversed upon a showing that the trial court's actions were unreasonable, arbitrary or unconscionable. Calderon v. Sharkey (1982), 70 Ohio St.2d 218; State v. Ferguson (1983), 5 Ohio St.3d 160. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN LIMITING THE SCOPE OF CROSS-EXAMINATION. Defendant-appellant argues that the trial court abused its discretion in denying him the opportunity to examine the officer on the procedures he utilized as opposed to those set forth in manuals issued by the Ohio Department of Transportation and the National Highway Traffic Administration. However, after a review of the record, we find that defendant- appellant did in fact cross-examine Officer Sedlack as to his training in administering the field sobriety tests, what tests were performed pursuant to the Ohio State Highway Patrol manual and what the tests actually consisted of. It was the trial court's decision that these facts, as opposed to the comparison in the Ohio State Highway Patrol manual with the manuals proffered by defendant-appellant, were relevant. We cannot say the trial court's decision connotes an attitude that is unreasonable, arbitrary and/or capricious. Defendant-appellant's second assignment of error is not well taken. -10- -11- IV. THIRD ASSIGNMENT OF ERROR Wayne Phelps, defendant-appellant, states as his third assignment of error: III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S ORAL MOTION TO DISMISS DUE TO THE DESTRUCTION OF EVIDENCE BY THE CITY IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW. A. ISSUE RAISED: WHETHER DEFENDANT-APPELLANT'S RIGHT TO DUE PROCESS HAD BEEN VIOLATED. Defendant-appellant argues the trial court erred to the prejudice of defendant-appellant when it denied his motion to dismiss. Specifically, defendant-appellant argues the videotape captured an essential element of defendant-appellant's charge, i.e., the field sobriety tests. Therefore it can only be construed as bad faith when the tape is destroyed thereby violating defendant-appellant's rights under the Due Process Clause. B. DUE PROCESS CLAUSE The Fifth Amendment of the United States Constitution states in part: No person *** shall be *** deprived of life, liberty, or property, without due process of law. In Brady v. Maryland (1963), 373 U.S. 83, 87, the Unites States Supreme Court held "*** that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to -12- guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." However, the Court has since held in Arizona v. Youngblood (1988), 488 U.S. 51, 58, that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." C. DEFENDANT-APPELLANT WAS NOT DENIED DUE PROCESS OF LAW. In the case sub judice, the record reflects that Officer Sedlack inadvertently left the videotape inside his patrol car where it was taped over. As there is no evidence other than the testimony of Officer Sedlack that defendant-appellant had failed the field sobriety tests, there can be no evidence of bad faith. Moreover, in light of the fact that the officer in question was examined and cross-examined extensively regarding the events which would have been captured on the videotape, defendant- appellant has failed to demonstrate any prejudice. See State v. Sailors (October 7, 1992), Wayne App. No. 2723, unreported; State v. Burke (December 28, 1993), Franklin App. No. 90AP-1344, unreported. Defendant-appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR Wayne Phelps, defendant-appellant, states as his fourth assignment of error: -13- 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. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS BASED UPON THE VIOLATION OF HIS RIGHT AGAINST DOUBLE JEOPARDY. Defendant-appellant argues his constitutional right to be free from double jeopardy had been violated. Specifically, defendant- appellant argues he has been "punished" twice for the same alleged conduct in separate proceedings: 1) the administrative license suspension; and 2) his conviction for driving under the influence of alcohol and operating a motor vehicle with a prohibited breath-alcohol content. Defendant-appellant's fourth assignment of error is not well taken. B. DOUBLE JEOPARDY ANALYSIS. The Fifth Amendment of the United States Constitution states in pertinent part: *** nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ***. Similarly, Article I, Section 10 of the Ohio Constitution states, in pertinent part: No person shall be twice put in jeopardy for the same offense. -14- The double jeopardy clause of the United States Constitution and Ohio Constitution bars: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711; United States v. Halper (1989), 490 U.S. 435. In Montana Dept. of Revenue v. Kurth Ranch (1994) 511 U.S. ____, 114 S.Ct. 1937, 128 L.Ed.2d 767, the United States Supreme Court set forth a three-part test to determine whether the Double Jeopardy Clause bars the state from prosecuting a criminal defendant after civil penalties have been imposed: 1) whether the sanctions are imposed for the same alleged conduct; 2) whether the civil and criminal sanctions are imposed in separate proceedings; and 3) whether the separate civil sanction constitutes "punishment" for double jeopardy purposes. See, also, State v. Ackrouche (April 5, 1995), Franklin County Municipal Court, No. M-9410TFC-145054, unreported. C. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S MOTION TO DISMISS. The Ohio State Supreme Court recently pronounced the following: 1. 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. 4511.191 based upon, and subsequent to, the imposition of an administrative license suspension pursuant to R.C. 4511.191. -15- State v. Gustafson (1996), 76 Ohio St.3d 425, paragraph one of the syllabus. Accordingly, the trial court did not err in denying defendant-appellant's motion to dismiss based upon the perceived violation of his right against double jeopardy. Judgment reversed and remanded. -16- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee 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. KARPINSKI, J., CONCURS; HARPER, P.J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA 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 .