Opinion
No. 90 TRC 5081 A, B C.
Decided May 2, 1991.
Ralph A. Bauer, Assistant City Prosecutor, for plaintiff.
Richard H. Wallace, for defendant.
This matter came before the court on defendant's motion to suppress and motion in limine. Several hearings were held and thereafter both parties submitted memorandums.
The defendant, Phillip A. Martin, was stopped for operating a motor vehicle while under the influence of alcohol on November 2, 1990 in Sidney, Ohio. He was subsequently given a breath test on the Intoxilyzer 5000 machine in the Sidney Police Department. This was a new machine and it was installed just prior to the radio frequency interference ("RFI") survey completed on May 24, 1990.
The survey was performed by two Sidney police officers, both equipped with radio transmitters, who measured a thirty-foot perimeter and utilized eight axes. Six frequencies were checked and all these frequencies were within the VHF band and/or the UHF band. No frequencies were checked within the HF band, to wit, 3 to 30 megahertz. Evidence was presented that the Ohio State Highway Patrol, whose members from time to time frequent the Sidney Police Department, uses 27 megahertz on the citizens band in its cruisers. Further, the testimony revealed that the highest wattage was not tested. For example, the Ohio State Highway Patrol uses frequencies 154.935 and 44.860 megahertz at 100 watts. The highest wattage tested in the survey was 40 watts for any frequency.
Strict compliance with the administrative regulations is not required as that standard would ignore the fact that it is not always realistically or humanly possible to strictly comply with administrative regulations. The standard is that of substantial compliance. State v. Plummer (1986), 22 Ohio St.3d 292, 22 OBR 461, 490 N.E.2d 902.
The issue is whether the RFI survey performed on May 24, 1990 was conducted in substantial compliance with the Ohio Department of Health regulations. Since the question is whether the state violated the Department of Health regulations, the issue is not framed as a violation of a constitutional right. As such, the court finds that the exclusionary rule would not be applicable. Therefore, this matter is viewed as a preliminary determination of the admissibility of the Intoxilyzer 5000 results and will be treated as a motion in limine and not as a motion to suppress. State v. Pedigo (June 27, 1989), Franklin App. Nos. 89AP-120, 89AP-121, 89AP-124, 89AP-125, 89AP-126 and 89AP-127, unreported, at 3-5, 1989 WL 71619.
The General Assembly, in R.C. 4511.19, has provided that the analysis of bodily substances shall be made in accordance with the methods approved by the Ohio Director of Health. The applicable section is Ohio Adm. Code 3701-53-02. The state has the ultimate burden of persuasion on the question of the admissibility of evidence and must demonstrate that the test was conducted in accordance with the applicable law. The defendant's expert witness, Harry Shamansky, testified that the survey as conducted did not substantially comply with the regulations. He stated that, as a minimum, a frequency in each band at the highest wattage in use should be tested. He further indicated that it would be preferable, if possible, to test any and all frequencies. The uncontroverted testimony was that no frequency in the HF band was tested and that the survey failed to test the highest wattage, to wit, any frequency at 100 watts. It should also be noted that the only expert testimony presented was by the defendant.
Ohio Adm. Code 3701-53-02(C)(2)(f) states that a new RFI survey shall be conducted when a new breath testing instrument is placed into service. The court finds that the Intoxilyzer 5000 in question was just recently placed in service and that, therefore, a new RFI survey must be conducted. Further, Ohio Adm. Code 3701-53-02(C)(2)(c) lists the different frequency bands, to wit, HF, VHF and UHF. That subsection further provides that a new RFI survey should be conducted when any frequency band is changed. It should be noted that the regulation itself is deficient in outlining exactly how the survey should be performed. The court would note in passing that many of these difficulties could be avoided if the regulations were more explicit.
Leonard J. Porter, the chief toxicologist for the state of Ohio, who is the author of the RFI survey requirements, did not testify in the present case. However, he did testify in the case of State v. Ray (Nov. 27, 1990), Clark App. No. 2657, unreported, at 8, 1990 WL 187610, and indicated in pertinent part as follows:
"* * * When asked about the testing of all the frequencies or bands Porter replied that they should all be tested and by not doing so, interference could take place and go undetected and therefore cause the results to be inaccurate. * * *"
Without ruling on this particular point, the court would comment that testing each and every frequency would appear to be requiring strict compliance with the regulations, as opposed to substantial compliance. Given the state of the expert testimony in the present case, the court concludes that substantial compliance with the regulations, at a minimum, would require the testing of each band (including HF) and testing at the highest wattage for any frequency in use in any particular band. Given the uncertainty in this area of the law, and the changing regulations, as well as possible future judicial interpretations, the court cannot, and will not, address the particular point of whether each and every frequency that might possibly be in use must be tested in order to achieve substantial compliance with the regulations. This question must be addressed at a later date and preferably with the help of the testimony of an expert witness such as Dr. Porter. Merely by way of suggestion, it would seem appropriate that any new survey conducted should be performed in conjunction with the advice of the Ohio Department of Health. The ambiguity that resides in the regulations must be addressed by that organization.
Finally, the court notes that the prosecution attempted to present the proposition that no other radios were in use around the Intoxilyzer 5000 on this particular night and, therefore, even if the survey was deficient, the defendant was not prejudiced. However, the court finds that substantial compliance with the regulations is mandatory and that this is a threshold question. Only after this determination is made can the court look at any possible prejudice to the defendant. As such, the court finds that this proposition is without merit. See State v. Fley (Dec. 14, 1988), Hamilton App. No. C-870811, unreported, 1988 WL 133000.
The court finds that the RFI survey was not conducted in substantial compliance with the Ohio Department of Health regulations and defendant's motion in limine is granted.
Reporter's Note: Defendant was initially charged with violating R.C. 4511.19(A)(1) and 4511.19(A)(3) and Section 331.12 of the Sidney Municipal Code. Following the ruling in issue, defendant pled no contest to violating R.C. 4511.19(A)(1) and was found guilty. The other charges were dismissed. There was no appeal.