COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71386 CITY OF CLEVELAND, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION KEVIN MERRIMAN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JULY 3, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. 96-TRC-017364 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Maura O'Neill Jaite Assistant City Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Anthony J. Amato 330 Standard Building Cleveland, Ohio 44113-1701 -2- NAHRA, J.: Appellant, Kevin Merriman, was charged with a violation of Cleveland Codified Ordinance 433.01(A)(3) which prohibits the operation of a motor vehicle by a person with a concentration of ten-hundredths (.10) of one gram or more by weight of alcohol per two hundred and ten liters of breath. Appellant's breath alcohol content was tested at the First District Police Station following his involvement in a single vehicle accident on Interstate 90. The test indicated that he had a concentration of .172 grams of alcohol per two hundred and ten liters of breath. Appellant appeals the Cleveland Municipal Court's decision to deny his motion to suppress the evidence of the test conducted on a BAC Datamaster Breathalyzer. For the reasons that follow, we affirm the judgment of the trial court. Appellant's sole assignment of error reads: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT IN OVERRULING HIS MOTION TO SUPPRESS EVIDENCE WHERE THE STATE (SIC) FAILED TO SHOW THAT THE RADIO FREQUENCY INTERFERENCE TEST WAS PERFORMED IN COMPLIANCE WITH OHIO ADMINISTRATIVE CODE SECTIONS 3701- 53-01 THROUGH 3701-53-10. Appellant alleged at the suppression hearing that the testing was not conducted in accordance with the Ohio Administrative Code because the Cleveland Police did not properly conduct a Radio Frequency Interference (RFI) survey on the mobile radio antennae located in police vehicles or the base radio antenna at the First District Police Station. -3- The Ohio Administrative Code requires that an RFI survey be conducted around BAC verifier machines. See, Ohio Adm. Code 3701- 53-01 - 3701-53-10. When conducting an RFI survey, mobile radio transmitter antennae and base transmitter antennae must be tested if they are located within 30 feet of the BAC verifying machine. In order for the results of alcohol testing to be admissible, the city has the burden of showing that it substantially complied with the Ohio Administrative Code. State v. Plummer (1986), 22 Ohio St.3d 292, 490 N.E.2d 902; City of Cleveland v. Patalon (Dec. 10, 1992), Cuyahoga App. No. 61401, unreported. At the suppression hearing, Cleveland Police Officer Burton testified that an RFI survey was not conducted on the district's base antenna or the police vehicles mobile antennae because they were not, to the patrolman's belief, within the prohibited 30-foot radius of the BAC verifier machine. Additionally, Officer Burton testified that the internal mechanism within the machine did not indicate that radio interference occurred at the time of the test. Appellant argues that because Officer Burton did not physically measure the distance of the transmitting antennae from the BAC verifier machine, the city did not meet its burden that the machine was maintained in compliance with the Ohio Administrative Code. We disagree. The city offered ample evidence that it substantially complied with the regulations at issue by producing Officer Burton's testimony. The city met its burden to show that it substantially complied with the regulations, thus shifting the burden to -4- defendant to produce evidence that it did not. See, State v. Adams (1992), 73 Ohio App.3d 735, 598 N.E.2d 176; cf. State v. Boller (June 22, 1993), Franklin App. No. 92AP-1261, unreported (Officer's testimony that he didn't perform RFI survey on antennae because he believed them to be outside thirty foot radius contradicted by physical measurement supplied by defendant.). In this case, appellant offered no evidence to contradict Officer Burton's testimony. Moreover, appellant offered no evidence that any radio transmissions in fact interfered with his BAC test. See, Adams, 73 Ohio App.3d at 745, 598 N.E.2d at 182 (Failure to substantially comply with regulations regarding RFI is not enough to establish inadmissibility of test results, evidence necessary to show antennae in use with interfering frequencies is also required.) For these reasons the trial court properly denied appellant's motion to suppress evidence. Appellant's assignment of error is overruled and the judgment of the Cleveland Municipal Court is affirmed. -5- 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. MATIA, DAVID T., P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA 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 .