State v. Brown3/1/1996
HARSHA, Judge.
This is an appeal by the state of Ohio of an order by the Hocking County Municipal Court granting a motion to suppress breath-alcohol test results in the prosecution of Glen Brown for driving under the influence in violation of R.C. 4511.19(:A)(3). Appellant assigns two errors:
Assignment of Error No. I
"The trial court erred in that its decision is in conflict with cases which approve of two digits being sufficient for calibration and the BAC test."
Assignment of Error No. II
"The trial court's decision is against the manifest weight of the evidence where the evidence showed that the two digit target value was a typographical error."
On September 29, 1994, at 11:54 p.m., Trooper Fellure, of the Ohio State Highway Patrol, observed appellee drive left of center three times. When Trooper Fellure stopped appellee, he noticed a strong odor of alcohol emanating from inside appellee's car. Upon questioning, appellee admitted to drinking earlier that evening. Trooper Fellure then administered field sobriety tests, which appellee failed. Appellee consented to a BAC (breath-alcohol content) test, which showed a BAC level of .114.
The BAC machine used to test appellee had been calibrated on September 26. 1994, using testing fluid from bottle 83, with a result of .095. Bottle 83 was taken from testing fluid batch 94130. The Department of Health certificate for testing fluid batch 94130 indicates that, when used according to calibration checklists, the fluid will produce a target value of "0.10 g/210L" plus or minus .005.
Appellee filed a motion to suppress the BAC test results, asserting that because the Department of Health certificate indicated that the target value of the testing fluid was quantified by two digits (i.e., .10), the test results from the machine could not be shown to quantified to three digits (plus or minus .005), as is required by Ohio Adm.Code 3701-53-04(A)(1). At the hearing on the motion, appellee presented extensive expert testimony in support of his position. The state failed to introduce any expert testimony on its behalf. After the hearing, the trial court issued a judgment entry finding, among other things, that .10 does not equal .100 for purposes of Ohio Adm.Code 3701-53-04(A)(1). Thus, the court reasoned that the test results could not be shown to be quantified to three digits. Accordingly, the court granted the motion to suppress the BAC results. Pursuant to R.C. 2945.67 and Crim.R. 12(J), the state timely appealed.
The state's assignments of error both address the trial court's decision on the motion to suppress. Consequently, we consider them together. In a hearing on a motion to suppress, the trial court assumes the role of trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137; State v. Clelland (1992), 83 Ohio App.3d 474, 480, 615 N.E.2d 276, 280-281. Accordingly, in our review, we are bound to accept the trial court's findings of fact and determinations regarding credibility if they are supported by competent, credible evidence. State v. Dreher (July 28, 1992), Highland App. No. 786, unreported, 1992 WL 188501; see, also, State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. Accepting these facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the appropriate legal standard. State v. Shelpman (May 23, 1991), RossApp. No. 1632, unreported, 1991 WL 87312; State v. Simmons (Aug. 30, 1990), Washington App. N
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