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State v. Lake1/24/2003
JUDGMENT: Reversed, Conviction Vacated and Remanded.
. This timely appeal comes for consideration upon the record in the trial court and the parties' briefs. Defendant-appellant, Paul E. Lake, appeals from the decision of the Noble County Court of Common Pleas denying his motion to suppress the results of his breath test, which established that his blood alcohol content ("BAC") was .170. We are asked to decide whether the state proved substantial compliance with the Ohio Department of Health's regulations concerning the calibration of the BAC testing device. We find that the state failed to prove substantial compliance with the regulations as the copies of the calibration solution certificates used to demonstrate substantial compliance were inadmissible pursuant to Evid.R. 1005. Thus, the trial court's decision is reversed, appellant's conviction is vacated and this case is remanded for further proceedings.
. State Highway Patrol Trooper Timothy Scott was driving southbound on State Route 339 in Noble County, Ohio, when he passed a vehicle with a loud exhaust moving in the opposite direction. He turned his vehicle around and proceeded to stop the other vehicle. After Trooper Scott approached the vehicle, he noticed that the driver, Lake, had red, glassy eyes and his speech was slow and quiet. Trooper Scott also smelled a strong odor of alcohol about Lake. He ordered Lake out of the vehicle, patted him down, and ordered Lake to perform the three accepted field sobriety tests, horizontal gaze nystagmus, walk-and-turn, and one-leg stand. Based on the results of those tests and his previous observations, Trooper Scott arrested Lake for driving under the influence of alcohol. Trooper Scott brought Lake to the local police department where he administered a breath test. Lake registered a .170.
. Subsequently, the Noble County Grand Jury issued an indictment charging Lake with DUI. The indictment contained a specification that Lake had been convicted of three other DUI offenses in the previous six years at the time of the offense, making this offense a felony of the fourth degree. Lake pled not guilty to the charges.
. After Lake was appointed counsel, he filed a motion to suppress, claiming that his breath test should be suppressed because the state could not prove that the machine used to conduct the test was properly calibrated in accordance with the Ohio Administrative Code. The trial court heard the motion to suppress. At the conclusion of the hearing, the state moved to admit its exhibits, including copies of two certificates which certified the solution used to calibrate the machines. The trial court allowed those documents into evidence over Lake's objections. After allowing the parties to file post-hearing briefs, the trial court denied Lake's motion to suppress.
. Subsequently, Lake entered a plea of no contest. The trial court found Lake guilty, sentenced him to six months in the Noble County jail, and fined him $800. The trial court also placed Lake on five years of community control, ordered the vehicle he used while committing the offense seized, and ordered his license suspended for five years.
. We reverse the trial court's decision which denied Lake's motion to suppress because the state failed to prove substantial compliance with the applicable regulations governing the calibration of the breath test machine. The state presented copies of the calibration solution certificates, but did not demonstrate their admissibility pursuant to Evid.R. 1005. Without these certificates, the state could not prove substantial compliance with the regulations. Thus, the results of the breath test should have been suppressed.
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