COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72932 CITY OF FAIRVIEW PARK, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : DANIEL WARD, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 15, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Rocky River Municipal Court : Case No. 96-TRC-12590 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: James F. Shannon, Prosecutor 516 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Jack W. Bradley R. J. Budway BRADLEY & GIARDINI CO., L.P.A. 520 Broadway 3rd Floor, South Suite 200 Lorain, Ohio 44052 -2- NAHRA, P.J.: Appellant, Daniel J. Ward, challenges his conviction of D.U.I., and the denial of his Motion to Suppress the blood alcohol content reading. On December 30, 1996, appellant was arrested and charged with driving while under the influence and failure to stop at a red light. Approximately one-half hour after his arrest, Ward voluntarily submitted to a breathalyzer test at the Fairview Park Police Station. The test indicated a blood alcohol level of .195. Ward entered pleas of not guilty to the charges of driving under the influence, excessive breath alcohol content, and failure to stop at a red light. After several pretrials, appellant filed a Motion to Suppress the evidence of the breathalyzer test. The basis of the motion was appellant's claim that the test was not administered in accordance with the Department of Health regulations. After a hearing, appellant's motion was denied. Thereafter, he entered a plea of no contest, and was found guilty. The trial court stayed the execution of his sentence pending this appeal. Appellant's sole assignment of error states: THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS BY ERRONEOUSLY FINDING THAT THE STATE HAD COMPLIED WITH THE OHIO DEPARTMENT OF HEALTH REGULATIONS. Appellant maintains that the Fairview Park Police Department administered a faulty breathalyzer test because they had not properly complied with the regulations of the Department of Health. Specifically,it is appellant's contention that the certificate of -3- calibration of solution issued by the Ohio Department of Health for batch number 96901 on file at the Fairview Park Police Department was invalid on its face because it states [t]his calibration solution contains 1.21 +/- 2% mg/mL ethyl alcohol in distilled water. Appellant contends that this is facially invalid because the Department of Health certified this solution using the range provided by the manufacturer RepCo, and did not independently test the solution to conform with the Ohio Administrative Code. This independent test, per Ohio Administration Code S3701-53-04(A)(1), provides that the calibration check of a breath testing device is valid only when the result of the calibration check is at a target value of plus or minus five one thousandths (.005) grams per 210 liters. Appellant maintains that mathematically, when calculating a range for a solution that is plus or minus 2%, the result is outside the acceptable .005 range, yielding results of .093 to .108. Appellant further argues that the results of the breath alcohol test should also have been suppressed because the Fairview Park Police Department did not properly conduct the radio frequency interference test ( RFI ) in accordance with the methods approved by the Director of Health. Specifically, appellant argues that the patrolmen who performed the test did not test on all the required frequencies and failed to fill out the testing form properly. A decision by the trial court on the admissibility of evidence will be disturbed only upon a finding of an abuse of discretion. An abuse of discretion connotes more than an error of law or of -4- judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149. See, also, State v. Montgomery (1991), 61 Ohio St.3d 410, 413, 575 N.E.2d 167, 170-171. The admissibility of the results of a breath test depends on whether there has been substantial compliance with the regulations promulgated by the Department of Health. Ohio Admin. Code S3701- 53-04. See, also, State v. Workman (1996), 79 Ohio Misc.2d 26, 670 N.E.2d 315, State v. Smoot (1991), 75 Ohio App.3d 702, 600 N.E.2d 772. Once the state introduces evidence of substantial compliance, the burden then shifts to the defendant to show anything less than complete technical compliance. Ohio Admin. Code S3701-53-04. See, also, State v. Plummer (1986), 22 Ohio St.3d 292, 490 N.E.2d 902. The Ohio Department of Health issued two certificates of approval of calibration solution for batch number 96901. The first certificate was dated February 16, 1996, and stated [t]his calibration solution contains 1.21 +/- 2% mg/mL ethyl alcohol in distilled water. When used according to calibration checklists, it will produce a reading of .100 g/210L +/- .005 in the approved breath testing instrument, .... This, as stated at trial, is incorrect and facially invalid. However, on February 29, 1996, the Director of Health corrected this error and reissued the certificate containing this statement: [t]his calibration solution contains 1.21 mg/mL ethyl alcohol in distilled water. When used according to calibration checklists, it will produce a reading of -5- .100 g/210L +/- .005 in the approved testing instrument, .... This minor change, the omission of +/- 2% following 1.21 made the certificate valid and placed the state within substantial compliance with the regulations provided by the Department of Health. Further, the courts in State v. Monsour (December 5, 1997), Portage App. No. 96-P-0274, unreported, and State v. Koski (February 28, 1997), Athens App. No. 96 CA 1758, unreported, addressed the very same batch number, 96901, and determined that the first certificate, although invalid on its face, was a clerical error which was subsequently corrected, and had no bearing on the target value or the end result of the test. As a result, appellant's arguments concerning the validity of batch number 96901 are unfounded. Appellant's arguments concerning the radio frequency interference tests are misplaced as well. The state clearly proved that the Fairview Park Police Department was in substantial compliance with the regulations provided for testing by the Department of Health and Ohio Admin. Code S3701-53-02(C). The purpose of an RFI survey is to determine the amount of interference from radios transmitting within thirty feet of the breath-testing equipment. State v. Owen (1996), 114 Ohio App.3d 226, 683 N.E.2d 37. Once substantial compliance by the state is proved, the burden then shifts to the accused to come forward with evidence that a radio was broadcast within the thirty-foot radius around the instrument during the accused tests. Id. See, also, -6- State v. Adams (1992), 73 Ohio App.3d 735, 744, 598 N.E.2d 176, 182. At trial, the state presented evidence, through the testimony of Officer Eric Upperman of the Fairview Park Police Department, the senior breathalyzer operator, that the tests performed substantially complied with the applicable guidelines. Officer Upperman stated that when he tested the machine for RFI he tested only those bands that were in use at the department, and those that could possibly interfere with the functions of the machine. Specifically, Upperman stated that the Fairview Park Police Department operated only three of the available five band frequencies and only two of the frequencies had the capability to interfere with the breathalyzer machine. The third frequency was used only for transmissions from car to car and, as a result, could never be operated within the applicable thirty-foot radius. In testing the other two frequencies, the patrolman stated that they were careful to follow the directions on the RFI survey form, provided by the Department of Health, for their particular machine. In examining the form and the applicable instructions, it is clear that Officer Upperman substantially complied with its terms. There was no need to test for frequencies that are not used or do not have the capability of interfering with the proper functioning of the breathalyzer. Further, the appellant has provided no evidence that a radio was broadcast during his test causing interference. -7- Accordingly, the trial court did not err in dismissing appellant's motion to dismiss and this assignment of error is overruled. Judgment affirmed. -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 Rocky River 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. JOSEPH J. NAHRA PRESIDING JUDGE KARPINSKI, J., and MICHAEL J. CORRIGAN, J., CONCUR. 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 .