COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70606 CITY OF CLEVELAND : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION EDWARD SMIALEK : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 95-TRC-032776 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: CAROL M. SKUTNIK, ESQ. ROBERT G. WALTON, ESQ. ASST. CITY PROSECUTOR 13111 Shaker Square, Suite 211 Justice Center - 8th Floor Cleveland, Ohio 44120 Cleveland, Ohio 44113 - 2 - DYKE, J.: The City of Cleveland appeals from the trial court's suppression of breathalyzer test results obtained in connection with its prosecution of defendant Edward Smialek. For the reasons set forth below, we reverse and remand for further proceedings. On July 12, 1995, defendant was issued a citation for impeding the flow of traffic in violation of R.C. 4511.22. He was also cited for driving under the influence of alcohol, in violation of Section 433.01(A)(1), then later consented to a breath alcohol test. The breath alcohol test in turn indicated a breath alcohol level of .194 per two hundred ten liters of breath, or almost double the statutory limit, and defendant was additionally charged with driving with a prohibited breath alcohol level. The Cleveland Police Department then administratively suspended defendant's driver's license pursuant to R.C. 4511.191(D). The record further demonstrates that on March 1, 1996, defendant moved to suppress the results of breathalyzer test and asserted that a memo prepared within the office of the Ohio Department of Health indicated that the "target values" of the calibration solution for the breath testing instruments were erroneous. Defendant further maintained that using "corrected" target values for the calibration solution, the calibration checks for the breathalyzer were outside of the permitted range of results set forth in Ohio Adm. Code 3701-53-04. Thus, defendant asserted that the city failed to substantially comply with the regulations - 3 - of the Ohio Department of Health. Defendant's motion acknowledged, however, that the Department of Health issued a subsequent memo disavowing the internal memo which claimed that the target values for the calibration solution were erroneous, and upon which his argument was based. A hearing was held on this matter on March 28, 1996. At this time defense counsel made the following opening remarks: [Leonard Porter, a chemist with the Department of Health] issues this on January 29, 1996, *** it wasn't on Department of Health letterhead. He issued a memo as a chemist. And he, basically, he showed in 17 pages with respect to all of the batches that had been used from '94 to '96, that the target values and the range, the tolerance range that the Department of Health came up with in their testing, was different than the manu- facturer's range and target value which they approved without ever doing their own cross checks before *** he got Porter's memo which set forth 17 pages of test results, he went ballistic and he wrote his own memo on February 22nd of this year, as [thereafter, the] director of the Department of Health. *** [issued a subsequent] memo and issued a press release. And he said, "We disavow the unauthorized memo of Leonard Porter. We disavow its contents. We have not adopted the new target value of ranges as set in Mr. Porter's memo", that's attached to my Motion, too. The only problem is, why did he do this and on what basis? I think he knows why he did it. Who wants 10,000 challenges to the integrity of breath tests that were conducted in the past? That's just my guess. * * * Another interesting thing, Judge, that brings us up to the point where -- now, I've got these documents. But, I don't have anybody here today from the Department of Health. Ms. Jaite has some officers here from the Second District. I don't have a problem, although I'm going to challenge anything that's put into evidence unless there's an expert to testify as to what it means. - 4 - (Tr. 15-19). The prosecution then argued that because the memo relied upon by the defense was disavowed by the Department of Health, there was no demonstration that the calibration conducted in this instance was erroneous or out of compliance with department standards. The prosecution also maintained that it could demonstrate substantial compliance with the Department of Health through the testimony of the arresting officer as well as a certified copy of the calibration solution certificate. In response, defense counsel argued that the city could not rely upon the certificate of calibration approval for this batch of calibration solution in order to establish substantial compliance, due to the varying target values which had been calculated for this solution. Thereafter, the court stated that the "state has not used the proper procedure. There are flaws as it has been presented." (Tr. 38). It then granted defendant's motion to suppress upon the basis of the introductory remarks of counsel and without allowing the prosecution to present any evidence. The city now appeals pursuant to Crim. R. 12(J) and assigns the following error for our review: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING THE CITY OF CLEVELAND THE OPPORTUNITY TO PRESENT EVIDENCE AT THE SUPPRESSION HEARING AND GRANTING THE MOTION TO SUPPRESS BASED SOLELY UPON THE OPENING STATEMENTS OF COUNSEL. With regard to procedure, we note that a motion to suppress is a proper pretrial procedure for challenging breathalyzer test - 5 - results when the defendant is charged with a driving with a prohibited breath alcohol concentration. Defiance v. Kretz (1991), 60 Ohio St.3d 1, syllabus. In general, when a defendant moves to suppress evidence, the prosecution bears the burden of going forward and the burden of production. Xenia v. Wallace (1988), 37 Ohio St.3d 216, paragraph two of the syllabus. Further, where a motion to suppress is set for hearing and the prosecution is prepared to meet his burden of going forward with evidence as to the subject of the motion to suppress, but the trial court does not permit it to do so, the court commits reversible error. State v. Hooker (1989), 64 Ohio App.3d 631, 643. More specifically, on a pretrial motion to suppress the results of a blood alcohol test, the state has the ultimate burden of proof or persuasion as to the facts necessary to show that the test was done in substantial compliance with Ohio Department of Health regulations, to the extent that the defendant takes issue with the legality of the test. Defiance v. Kretz, supra, at 3; R.C 4511.19(D); State v. Gasser (1980), 5 Ohio App.3d 217, 219. The prosection's burden is to demonstrate that the test was conducted in substantial compliance with the law. State v. Bennett (1990), 66 Ohio App.3d 595, 597. With regard to the substantive law relevant to such burden, we note that Ohio Adm. Code 3701-53-04 provides in relevant part: (A) Approved evidential breath testing instruments 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 - 6 - 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 installment is valid when the result of the calibration check is at target value plus or minus five one-thousandths (0.005) grams per two hundred ten liters. *** (Emphasis added). See also State v. Farris (1989), 62 Ohio App.3d 189, 192-193. Thus, as is relevant to this matter, Ohio Adm. Code 3701-53- 04 only requires that a solution of ethyl alcohol approved by the director of health be used in calibrating the machine. State v. Lewis (September 30, 1992), Portage App. No. 92-P-0013, unreported. The Lewis Court explained: Approval of the solution by the director of health for use in calibration is what is mandated in the regulation, not certification of the document for evidentiary purposes. Id., at 4. As to the related evidentiary considerations, we note that in Cleveland Metroparks v. Ponsford (October 10, 1996), Cuyahoga App. No. 68257, unreported, this court held that a police officer's testimony that he received the calibration solution certificate, with seal and signatures from the director of health, when he purchased the batch solution from a supplier, was sufficient to authenticate the calibration solution certificate. The Ponsford rejected the contention an employee of the office of the Department of Health had to personally authenticate the certificate which accompanies the bottles of calibrating solution. Accord State v. Easter (1991), 75 Ohio App.3d 22, 25. Finally, the court must consider the question of whether any - 7 - deviation from the requirements of the Department of Health was in fact prejudicial. See, e.g., Coshocton v. Philabaum (November 15, 1991), Coshocton App. No. 91-CA-13, unreported ("*** Leonard Porter, a toxicologist employed by the Ohio Department of Health, *** opined that the City's failure to comply with the RFI Health Regulations was inconsequential and had "no impact" on appellant's breath test."); State v. Owens (November 17, 1993), Medina App. No. 2236-M, unreported (defendant will not be prejudiced where the results of the test underestimate his breath alcohol level). Applying the foregoing, it is clear the prosecution's opening statement clearly indicated that it was prepared to present evidence that defendant's breath test was analyzed in accordance with methods approved by the Department of Health, and that the breath testing instrument was checked for calibration using a solution approved by the director of health. Moreover, the prosecution was not required to demonstrate substantial compliance with the requirements of the director of health by calling an employee of that office to authenticate the calibration solution certificate. By his opening statement, the defense counsel intended to refute such showing of substantial compliance by offering the memo which challenged the reliability of the calibration solution, presumably with proper authentication, but he acknowledged that this memo had been "disavowed" by the director of health. Thus, his opening remarks could not demonstrate as a matter of law that the test results should be suppressed for lack - 8 - of substantial compliance with the requirements of the director of health, as the memo relied upon by the defense, and in fact disavowed by the Department of Health was insufficient to preclude the prosecution from presenting its case in chief. There was therefore no indication from the opening statements of counsel that the sample was not analyzed contrary to the methods approved by the director of health. We therefore conclude that the trial court committed reversible error in granting defendant's motion to suppress on the basis of the opening statements. Reversed and remanded for further proceedings consistent with this opinion. - 9 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its 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. DAVID T. MATIA, P.J., AND O'DONNELL, 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 .