COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73290 CITY OF BROADVIEW HEIGHTS : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION GARY GRUBER : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 1, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court, No. 97-TRC-3270-4. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Kevin P. Weiler, Esq. Prosecutor, Broadview Heights 8920 Brecksville Road Brecksville, OH 44141 For Defendant-Appellant: Kenneth R. Hurley, Esq. 6060 Royalton Road North Royalton, OH 44133 -2- TIMOTHY E. McMONAGLE, J.: Defendant-appellant Gary Gruber ( appellant ) appeals the judgment of the Parma Municipal Court which accepted his plea of no contest and convicted him of Driving While under the Influence in violation of R.C. 433.01(A)(3). Appellant contends that the trial court erred in denying his motion to suppress the results of his breath-alcohol test, asserting that the state failed to substantially comply with the Ohio Department of Health requirements as put forth in Ohio Adm. Code 3701-53. For the reasons stated below, the judgment of the trial court is affirmed. The record reflects that on March 5, 1997, appellant was arrested by the Broadview Heights police for: 1) driving under the influence of alcohol in violation of both R.C. 4511.19(A)(1) and (A)(3); 2) driving under suspension of license in violation of R.C. 4507.02; and 3) weaving in violation of R.C. 4511.33. At the Broadview Heights Police Station appellant submitted to a breath- alcohol test on a BAC Datamaster testing instrument. His breath was found to contain .114 grams of alcohol per 210 liters of breath, above the legal limit. Appellant entered a plea of not guilty to the charges against him and subsequently filed a motion and an amended motion to suppress the evidence against him including the results of the breathalyzer test. Appellant argued that the city failed to conform to the requirements of the Ohio Administrative Code Section 3701-53 thereby rendering his breath test results inadmissible as evidence against him. On July 29, 1997, hearing was held on -3- appellant's motion to suppress at which testimony was taken on the limited issue of appellant's assertion that the Radio Frequency Interference ( RFI ) Survey failed to comply with the provisions of Ohio Administrative Code Section 3701-53-02 and Appendix H of the code. The prosecution presented the testimony of Sgt. Gregory Skolarski of the Broadview Heights Police Department who conducted the Radio Frequency Interference test on June 5, 1996. Sgt. Skolarski described the procedure used in conducting the test and recording the test results. Appellant presented the testimony of Kenneth Stachowski, an expert in the field of breath-testing analysis, who had reviewed the records of the tests run on appellant. Stachowski concluded that the RFI Survey by the Broadview Heights Police Department performed on June 5, 1996 did not comply with Ohio Administrative Code Section 3701.53-02 which requires the survey to be conducted in accordance with the instructions as provided in Appendix H. Specifically, appellant's expert maintained that the BAC Datamaster's alleged compliance was not properly documented. The trial court, finding that the prosecution demonstrated to the satisfaction of the court that the accuracy of the machine had been satisfied and the tests were properly conducted, denied appellant's motion to suppress the results of his breathalyzer test. On September 2, 1997, appellant withdrew his plea of not guilty and entered a plea of no contest to the charge of driving under the influence of alcohol, R.C. 4511.19(A)(3). The prosecutor entered a nolle prosequi to the remaining charges against him. -4- Appellant was found guilty of the charge and sentenced. Imposition of appellant's jail term and fine were stayed pending this appeal. Appellant advances a single assignment of error for our review. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED A PREJUDICIAL ERROR OF LAW IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS THE RESULTS OF THE APPELLANT'S BREATH TEST. (TRANS. P. 41 ET SEQ.) In his sole assignment of error, appellant challenges the trial court's denial of his motion to suppress his breath test results and argues that the results should have been suppressed because the Broadview Heights Police Department failed to comply with Ohio Administrative Code 3701-53-02 and Appendix H in its performance of the Radio Frequency Interference ( RFI ) test. Specifically, this failure to comply occurred when the administrator of the test modified the form by deletion of the instructions;failed to chart the eight vectors on the grid on the substituted form; and deleted the RFI source check-off box. The prosecution, however, submits that the modified form used during the test substantially complied with the requirements. A motion to suppress is a proper pretrial procedure for challenging breathalyzer test results when the defendant is charged with a violation of 4511.19(A)(3). A plea of no contest does not waive a defendant's appeal from an adverse ruling on the motion. Defiance v. Kretz (1991), 60 Ohio St.3d 1, paragraph one of the syllabus. The admissibility of test results to establish breath/alcohol concentration turns on substantial compliance with the Ohio Department of Health regulations. Id. at 3; State v. -5- Plummer(1986), 22 Ohio St.3d 292, 294. Rigid compliance with the Department of Health regulations is not necessary in order for test results to be admissible. State v. Plummer, supra. In order to admit breathalyzer test results, the prosecution has the burden to demonstrate that the test was properly conducted. Mentor v. Giordano (1967), 9 Ohio St.2d 140, paragraph six of the syllabus. Absent a showing of prejudice to the defendant, the results of an alcohol test administered in substantial compliance with the Ohio Administrative Code are admissible for a prosecution of driving under the influence of alcohol. Elyria v. Conley (1994), 99 Ohio App.3d 40,42. The trial court assumes the role of trier of fact during proceedings on a motion to suppress. State v. Mills (1992), 62 Ohio St.3d 357, 366; State v. Tobert (1996), 116 Ohio App.3d 86, 90. In review of a trial court's ruling on a motion to suppress, this court must accept the trial court's factual findings if they are supported by competent credible evidence. State v. Weaver (1993), 86 Ohio App.3d 427, 429. Moreover, we are duty bound to review the record and to independently determine whether, as a matter of law, the trial court erred in applying the substantive law to the facts of this case. State v. Gordon (1994), 95 Ohio App.3d 334; State v. Klein (1991), 73 Ohio App.3d 486, 488. With these standards in mind, we are asked to determine whether the prosecution demonstrated that the test was properly conducted, whether the Broadview Heights police substantially complied with the Ohio Administrative Code, and whether appellant has demonstrated that he -6- suffered prejudice resulting from the complained of deficiencies in recording the test results. The record reveals that two witnesses testified at the hearing on the motion to suppress the results of the breathalyzer test. Sgt. Skolarski, who performed the challenged RFI Survey, testified on behalf of the city as to the procedure employed in the testing and the recording of the results. First, he and two other department employees tested all the base radios on all the frequencies; then, they tested the mobile radios in the police cars both by pulling the cars into the garage-port area and by driving the cars around the parking lot even beyond the thirty-foot requirement. They detected no radio interference from either the base radios or from the mobile radios. Finally, although it was physically impossible due to the configuration of the walls to follow each of the eight vectors as designated on the form, they tested the hand-held radios one at a time and on each different frequency from all directions by walking them through each of the rooms in the station and outside the building. No radio interference was detected on the hand-held radios until the radios were approximately one foot from the machine. During the testing as radio interference was detected, Sgt. Stolarski marked the actual test results on the architect's floor plan by indicating with an X the exact location and distance from the machine where the interference occurred. Kenneth Stachowski, an expert in breath testing, testified for the defense stating that his opinion that the Broadview Heights -7- police failed to comply with the regulations was based upon his review of the records at the Broadview Heights Police Department and his meeting with Sgt. Skolarski. Stachowski concluded that the police department modified the form so that it no longer conformed to the original by: (1) failing to sketch the floor plan onto the form; (2) using a form with the instructions removed; and (3) using a form without check marks to indicate whether or not RFI interference was present. On cross-examination, Stachowski conceded that the instructions do not require that the one who is conducting the test make markings on the form indicating the path followed in the testing and acknowledge that the tester is only required to mark the point where radio frequency interference is encountered. Moreover, Stachowski admitted that he was unable to conclude that the test was improperly conducted from the record, but he could only conclude that the test was possibly not documented properly. At the close of the evidence presented, the trial court found the actions of the Broadview Heights Police went beyond the requirements put forth in the Ohio Administrative Code in conducting the RFI test, finding that the police tested all angles as shown by the vectors as marked on the form without detecting radio frequency interference. Moreover, the court found nothing in the rules which required that the particular form be used or prohibiting modification of the form. Finally, the trial court concluded that the Broadview Heights police used a form more accurate than the form supplied in Appendix H. Appellant's motion -8- to suppress the results of the breathalyzer based upon his contention that the trial court failed to substantially comply with the Administrative Code requirements was denied. At a suppression hearing, the evaluation of the evidence and the credibility of the witnesses are issues for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. We find the factual findings of the trial court are supported by competent and credible testimony of Sgt. Stolarski and, as such, we are bound to accept the court's conclusion that sufficient testing was done to assure the accuracy of the breathalyzer machine used. Further, based upon this conclusion of the trial court, we find that the Broadview Heights Police Department substantially complied with the requirements when it substituted the actual architect's floor plan to indicate the location where the Radio Frequency Interference was detected and then properly marked the location of radio frequency interference. Finally, appellant failed to demonstrate prejudice to him stemming from the police department's use of the modified form. Accordingly, we find no error in the trial court's denial of appellant's motion to suppress the results of his breathalyzer test. Judgment affirmed. -9- 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 Parma 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. TIMOTHY E. McMONAGLE JUDGE BLACKMON, A.J. and PORTER, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .