COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73648 CITY OF BROOK PARK : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL R. SEIDNER : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM BEREA MUNICIPAL COURT CASE NO. 97 TRC 02579-01 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: NEAL M. JAMISON (#0005911) Assistant Law Director, City of Brook Park 6161 Engle Road Brook Park, Ohio 44142 For Defendant-Appellant: DAVID G. PHILLIPS (#0046827) The Truman Building, Suite 410 1030 Euclid Avenue Cleveland, Ohio 44115 SPELLACY, J.: Defendant-appellant Michael R. Seidner ( appellant ) appeals from his conviction for operating a motor vehicle with a prohibited -2- breath-alcohol concentration. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION FOR SUPPRESSION OF THE EVIDENCE ON THE GROUNDS THAT THE ARRESTING OFFICER VIOLATED APPELLANT'S FOURTH AMENDMENT RIGHTS BY ENTERING APPELLANT'S RESIDENTIAL PROPERTY WITHOUT A WARRANT AND REFUSING TO LEAVE. II. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS APPELLANT'S ARREST BECAUSE APPELLEE FAILED TO MEET ITS BURDEN SHOWING THAT IT HAD PROBABLE CAUSE TO ARREST APPELLANT. III. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE SAMPLE OF APPELLANT'S BREATH BECAUSE THE TEST SOLUTION THAT WAS USED TO CALIBRATE THE BREATH TESTING INSTRUMENT WAS ADMITTEDLY UNREFRIGERATED WHEN NOT IN USE. IV. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE SAMPLE OF APPELLANT'S BREATH BECAUSE THE STATE FAILED TO SHOW THAT THE INSTRUMENT OR SOLUTION USED TO TAKE A SAMPLE OF APPELLANT'S BREATH WAS PROPERLY CALIBRATED. V. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS EVIDENCE OF THE SAMPLE OF APPELLANT'S BREATH BECAUSE THE STATE FAILED TO MEET ITS BURDEN TO SHOW THAT APPELLANT WAS OBSERVED FOR TWENTY, UNINTERRUPTED MINUTES BEFORE SUBMITTING TO A TEST OF HIS BREATH. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On July 21, 1997, appellant was issued three citations. The first citation charged appellant with operating a motor vehicle with a prohibited breath-alcohol concentration in violation of R.C. -3- 4511.19(A)(3). The second citation charged appellant with operating a vehicle on private property in willful or wanton disregard of the safety of persons or property in violation of R.C. 4511.201. Appellant was also charged with driving while under the influence of alcohol in violation of R.C. 4511.19(A)(1). At his arraignment, on July 22, 1997, appellant pleaded not guilty to the charges against him. On August 22, 1997, appellant filed a motion to suppress the prosecution'sevidence. Appellant filed a supplemental memorandum in support of his motion to suppress on September 12, 1997, and a brief in support of the suppression of evidence on October 2, 1997. On September 29, 1997, the trial court conducted the suppression hearing. Lorraine Lascko was the first witness to testify at the suppression hearing. Ms. Lascko testified that she observed appellant driving erratically on July 21, 1997. Initially, Ms. Lascko noted that appellant's vehicle was stopped near the intersection of West 150th Street and Brook Park Road. Because appellant's vehicle was not moving, traffic traveling in the same direction had to go around his vehicle. According to Ms. Lascko, appellant's vehicle then jerked forward twice and once again came to a complete stop. Appellant's vehicle then suddenly accelerated, sped through the intersection, and nearly collided with a bridge abutment. Ms. Lascko testified that she followed appellant to a residential street, where she saw appellant back his car into the -4- side of a neighbor's house. Appellant then pulled into the next driveway, parked his car in the garage, and entered his residence. Ms. Lascko called the police to report this incident. Officer Michael Dulin of the Brook Park Police Department also testified at the suppression hearing. Officer Dulin arrived at the scene shortly after Ms. Lascko's telephone call to the police. After interviewing Ms. Lascko, Officer Dulin approached appellant's mother and brother, Gail and Everett Seidner, who were standing outside their house. According to Officer Dulin, the Seidners informed him that appellant was the driver of the car, that appellant was inside the house, that appellant had hit their neighbor's house, and that the car was in their garage. Officer Dulin testified that he requested permission to enter the garage, which was closed, to view appellant's vehicle. When asked by Mrs. Seidner if he needed a warrant to enter the garage, Officer Dulin replied that he could obtain a search warrant if that was her request. However, Mrs. Seidner replied that a warrant would not be necessary, instructed her son Everett to open the garage, and allowed Officer Dulin to inspect appellant's car. During his inspection of the vehicle, Officer Dulin noted that the car had sustained some moderate damage. After examining the car, Officer Dulin observed appellant at the side door of his house. Officer Dulin testified that appellant then voluntarily exited the house. Officer Dulin noted various indications that appellant had been drinking alcohol. Therefore, Officer Dulin arrested appellant and transported him to the police -5- station. Once at the police station, appellant was given a breathalyzer test. Officer Lee Renton and Sergeant James Brenders, both employed by the Brook Park Police Department, also testified at the suppression hearing. In addition, Gail Seidner and Everett Seidner testified on behalf of the appellant. On October 6, 1997, the trial court overruled appellant's motion to suppress. Subsequently, appellant entered a plea of no contest to the charge of operating a motor vehicle with a prohibited breath-alcohol concentration. As part of a plea agreement, the other charges against appellant were dismissed. Appellant was thereby found guilty of the charge of operating a motor vehicle with a prohibited breath-alcohol concentration. On December 3, 1997, appellant was sentenced. Appellant filed a timely notice of appeal and now raises the within assignments of error. II. In his first assignment of error, appellant argues that the trial court erred in denying his motion to suppress. Specifically, appellant argues that the arresting officer violated his Fourth Amendment rights by entering his property and refusing to leave without a warrant or consent. At a suppression hearing, the trial court serves as the trier of fact and must judge the credibility of the witnesses and the weight of the evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 20. A trial court's decision denying a motion to suppress will not -6- be dis , leturbed on appeal where it is supported by substantialcredib eviden App. No. 71728, unreported. The Fourth Amendment, as made applicable to the states by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to conduct a search or arrest a suspect. See Payton v. New York (1980), 445 U.S. 573; Johnson v. United States (1948), 333 U.S. 10, 13-15. It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. United States v. United States District Court (1972), 407 U.S. 297, 313 (emphasis added). The Fourth Amendment has drawn a firm line at the entrance to a suspect's house and that absent exigent circumstances, that threshold may not be crossed without a warrant. See Elyria v. Tress (1991), 73 Ohio App.3d 5; Middleburg Hts. v. Theiss (1985), 28 Ohio App.3d 1. In this case, however, there was no entry into the defendant's home. Officer Dulin testified at the suppression hearing that appellant's mother, Gail Seidner, gave him consent to enter her garage to inspect appellant's car.1 According to Officer Dulin, 1 We note that appellant's mother and brother offered a different version of events at the suppression hearing. The Seidners testified that Officer Dulin was asked to leave their property and was asked if he had a warrant. Mrs. Seidner also testified that Officer Dulin threatened to have appellant's car towed if they did not open the garage to allow him to inspect the subject vehicle. We find that the trial court had ample reasons to question the credibility and obvious bias of appellant's mother and brother as witnesses. -7- appellant then voluntarily exited his home and was arrested outside. Based upon the foregoing, we find that Officer Dulin did not need a warrant or consent to arrest appellant outside his home. See State v. Norris (M.C. 1996), 81 Ohio Misc.2d 38, 40-41. Accordingly, appellant's first assignment of error is overruled. III. In his second assignment of error, appellant contends that the trial court erred in denying his motion to suppress because there was not probable cause to arrest appellant for driving while under the influence of alcohol. Cumulative facts and circumstances sufficient to justify a prudent person's belief that an offense has been committed will support a finding of probable cause for an arrest. State v. Pavao (1987), 38 Ohio App.3d 178, 178, citing Beck v. Ohio (1964), 379 U.S. 89, 91. This includes the totality of facts and circumstances surrounding the arrest. See State v. Finch (1985), 24 Ohio App.3d 38, 40. The record indicates that appellant was arrested based upon the following observations by Officer Dulin: (1) appellant's vehicle had sustained moderate body damage; (2) appellant had glassy and bloodshot eyes; (3) appellant was not walking in a steady manner and was swaying as he walked; (4) appellant had slurred speech; and (5) appellant performed poorly on a balance test and a walking test. -8- In addition, probable cause was supported by the information provided by Ms. Lascko, the motorist who had reported appellant's erratic driving to the police. We find that the totality of the facts and circumstances provided Officer Dulin with probable cause to arrest appellant for driving while under the influence of alcohol. Accordingly, appellant's second assignment of error is without merit and is overruled. IV. In his third assignment of error, appellant claims that his breathalyzer results were inadmissible because the breathalyzer's calibration solution was not refrigerated when it was transported with the machine for calibration in Massillon, Ohio. The Ohio Department of Health regulations require that calibration solution be refrigerated when not in use. In State v. Schell (1984), 13 Ohio App.3d 313, the Twelfth District Court of Appeals held that the failure to refrigerate calibration solution renders breathalyzer test results inadmissible. However, in Schell, the calibration solution was never refrigerated. In the instant case, the evidence establishes that the solution was unrefrigerated for several hours on July 11, 1997, while it was being transported with the breathalyzer for calibration in Massillon, Ohio. As the court held in State v. Ginocchio (May 22, 1985), Hamilton App. No. C-840529, unreported: Thus, the case sub judice may be factually distinguishedfrom Schell, supra, by observing -9- that in the instant case the calibration solution was out of refrigeration for approximatelysix or seven hours as opposed to a span of days as in Schell. The calibration solution in the case here on review was out of refrigeration only for such time as was reasonably necessary to calibrate the instrument including, obviously, the time needed to transport the solution to the calibration site. In the instant case, like the situation in Ginocchio, the calibration solution was out of refrigeration for several hours. The solution was unrefrigerated only for such time as was reasonably necessary to calibrate the breathalyzer, including the time needed to transport the machine and the solution to Massillon, Ohio. In State v. Plummer (1986), 22 Ohio St.3d 292, syllabus, the Supreme Court of Ohio held that, absent a showing of prejudice to a defendant, a showing of "substantial compliance" with the Department of Health's regulations governing alcohol testing is sufficient to render the results of such tests admissible. In the instant case, the prosecution made a showing of substantial compliance with the regulation regarding the refrigeration of calibration solution. Accordingly, appellant's third assignment of error is overruled. V. In his fourth assignment of error, appellant argues that the trial court erred in denying his motion to suppress the breath test results because the prosecution failed to prove that the breathalyzer and the test solution were properly calibrated. Before the results of a breathalyzer test are admissible, it -10- is incumbent on the prosecution to show that the instrument was in proper working order. Mentor v. Giordano (1967), 9 Ohio St.2d 140, paragraph six of the syllabus. Appellant, citing Columbus v. Robbins(1989), 61 Ohio App.3d 324, argues that certified copies of calibration certificates are required to prove that a breath test machine and calibration solution are in proper working order. We are not persuaded by appellant's argument or the Robbins decision. As the court in State v. Easter (1991), 75 Ohio App.3d 22 stated: * * * We decline to adopt the holding in Robbins because of what appear to be several weak spots in the court's reasoning. * * * Moreover, we are not entirely persuaded by that court's conclusion that Ohio Adm.Code 3701-53-04 requires the state to produce a certified document at trial showing that the calibration solution was correct. * * * Quite obviously, this regulation affects only the method of testing the equipment and does not impose any new evidentiary standards for showing that such tests have been complied with. That is a matter for determination under general evidence principles and, therefore, we do not agree that this regulation mandates that a certified batch and bottle affidavit with original signature must be submitted. Easter, 75 Ohio App.3d at 27-28. We agree with the logic and reasoning of Easter, and hold that the administrative regulations do not require the prosecution to produce certified documents that the breathalyzer and test solution are properly calibrated. Instead, we find that general evidence principles apply to this issue. Evid.R. 1003 governs admissibility of duplicates and provides -11- as follows: A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. In Natl. City Bank v. Fleming (1981), 2 Ohio App.3d 50, 57, this court held that [a] party seeking to exclude a `duplicate' from the evidence pursuant to Evid.R. 1003 has the burden of demonstrating that the duplicate should not be admitted. The determination as to whether a duplicate should be admitted is within the sound discretion of the trial court, and unless it is apparent from the record that the decision of the court is arbitrary or unreasonable, its decision will not be disturbed on appeal. See State v. Brown (1995), 108 Ohio App.3d 489, 496-497. We find no abuse of discretion in this case. During the suppression hearing, Sergeant James Brenders testified that the breathalyzer was sent to Midwest Instruments to be calibrated on July 11, 1997. The machine was returned the same day with a certificate of calibration, an uncertified copy of which was produced during the suppression hearing. An uncertified copy of a certificate from the Ohio Department of Health approving of the calibration solution was also presented during the hearing. In addition, Sergeant Brenders also testified that the breathalyzer was tested with the calibration solution on July 11, 1997, and again on July 14, 1997. According to Sergeant Brenders, the machine and solution tested within the permissible range on both occasions. We find that the evidence presented during the -12- suppression hearing was sufficient to show that the machine and solution were calibrated and in proper working order. Accordingly, appellant's fourth assignment of error is overruled. VI. As to his fifth assignment of error, appellant contends that he was not observed for a full twenty minutes prior to the administration of his breath test; therefore, appellant argues that the test results were inadmissible. Ohio courts have held that substantial compliance with the requirement to observe a suspect for twenty minutes prior to administering a breath test is sufficient. In re Eric W., Alleged Delinquent Child (1996), 113 Ohio App.3d 367, 372, citing, State v. Adams(1992), 73 Ohio App.3d 735, 740. In Adams, the court stated: The purpose of the observation rule is to require positive evidence that during the twenty minutes prior to the test the accused did not ingest some material which might produce an inaccurate test result. [Citation omitted.] A witness who testifies to that foundational fact is not required to show that the subject was constantly in his gaze, but only that during the relevant period the subject was kept in such a location or condition or under such circumstances that one may reasonably infer that his ingestion of any material without the knowledge of the witness is unlikely or improbable. To overcome that inference, the accused must show that he or she did, in fact, ingest some material during the twenty-minute period. The mere assertion that ingestion was hypothetically possible ought not to vitiate the observation period foundational fact so as to render the breathalyzer test results inadmissible. * * * -13- Adams, 73 Ohio App.3d at 740 (emphasis added). The testimony from Officer Dulin indicates that appellant was in custody and under observation for approximately twenty-eight minutes prior to the breath test. According to Officer Dulin, he placed appellant in custody at 7:04 p.m. Officer Dulin testified that he then proceeded to take photographs of appellant's vehicle, for a couple of minutes, while appellant was detained in the back of the police car. Thereafter, appellant was transferred to the police station, and remained in the presence of either Officer Dulin or Officer Lee Renton until the breath test was administered at 7:32 p.m. Appellant argues that Officer Dulin could not have had appellant under observation while appellant was in the rear seat of the police vehicle and Officer Dulin was taking photographs. Although appellant was not constantly in Officer Dulin's gaze during this time, the trial court could conclude from the circumstances that it was unlikely or improbable that appellant ingested anything while in custody, in the back of the police car, and with Officer Dulin in the vicinity. We find that the testimony in this case shows substantial compliance with the Department of Health regulations for administering a breath test. Accordingly, appellant's fifth assignment of error is not well taken. Judgment affirmed. -14- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant`s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Berea Municipal 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. TIMOTHY E. McMONAGLE,P.. AND JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 -15- .