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State v. MacCracken9/12/1990
CACIOPPO, Judge.
Defendant-appellant William MacCracken was charged with driving under the influence of alcohol in violation of R.C. 4511.19(A)(1), operating a motor vehicle with a prohibited breath-alcohol content in violation of R.C. 4511.19(A)(3), and failure to drive within the lanes in violation of R.C. 4511.33(A). MacCracken filed a motion to suppress the use of the results of his breath test or his field sobriety tests. MacCracken also argued that there was no probable cause for his arrest and that he was not given Miranda warnings.
A hearing was held on the motion to suppress. The trial court denied the motion on the grounds that the arresting officer had probable cause to stop MacCracken, that Miranda warnings were given and that the BAC Verifier was calibrated in compliance with Ohio Department of Health Regulations. At the suppression hearing, evidence was presented that the BAC had been tested within seven days of MacCracken's test and that the result of the calibration check was at target value plus or minus .005 grams per two hundred ten liters using the calibration solution in Bottle 685. Using the ethyl alcohol-calibration solution in Bottle 685, the calibration tests were properly performed and recorded on October 2, 1989, October 9, 1989, and October 16, 1989. On October 10, 1989, two days before MacCracken's arrest, a representative from the Department of Health subjected one of the officers to the proficiency test using the same BAC machine as used by MacCracken. The proficiency tests are used to evaluate the accuracy of the analysis performed by persons who have been issued a permit to perform the BAC. Ohio Adm.Code 3701-53-08. There was testimony that a different calibration solution was used to perform the proficiency test. The result of the calibration check performed as part of the officer's proficiency test showed a target value greater than .005 grams per two hundred ten liters.
The trial court granted the state's motion in limine to exclude any evidence of the proficiency test and field sobriety tests. MacCracken entered a plea of no contest to driving with a prohibited breath-alcohol content in violation osR.C. 4511.19(A)(3). The trial court dismissed the other charges and found MacCracken guilty on the BAC charge.
MacCracken argues one error in this appeal.
"The court erred in failing to suppress the results of the breath test when the evidence propounded clearly indicated that proficiency tests conducted did not conform to Ohio Administrative Code Section 3701-53-04(A)(3), or in the alternative, erred in failing to allow the evidence to be presented to a jury to weigh the evidence."
MacCracken contends that the trial court erred in failing to suppress the BAC results because the results of the proficiency test performed after the calibration test deviated from the target value by more than the permissible .005 grams per two hundred ten liters. MacCracken also argues that the trial court's reliance on this court's ruling in State v. Dvorak (1989), 65 Ohio App.3d 44, 582 N.E.2d 1027, precluded him from introducing evidence of the proficiency tests. He contends that the jury should have been the trier of fact and weighed the credibility of the BAC results when viewed in light of the proficiency tests.
For MacCracken's first argument to have any merit whatsoever there must have been evidence that the same calibration solution was used in both the proficiency and calibration tests. This is not the case. There was testimony that the Department of Health provides its own calibration solution.
The argument fails for a second reason. Ohio Adm.Cod
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