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Columbus v. Robbins2/28/1989
files. While the document in question was attested by Sergeant K.R. Bell as the keeper of the calibration log book for that particular machine, it was not certified by ODH, as mandated by Evid.R. 1005 and 902. The fact that the uncertified document was sent to another agency who could certify that it was part of its official file does not eliminate the deficiency. Hence, the document does not comply with the requirements of Ohio Adm.Code 3701-53-04.
Without a properly authenticated calibration solution certificate, the results of appellant's BAC Verifier test cannot be admitted. See State v. Ward (1984), 15 Ohio St.3d 355, 15 OBR 477, 474 N.E.2d 300. In order for a breath analysis to be admitted, it must be shown that the procedures proscribed by the Director of Health, pursuant to R.C. 3701.143, have been precisely followed. Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 72 O.O.2d 44, 330 N.E.2d 908. One such procedure is that the machine is properly calibrated. Ohio Adm.Code 3701-53-04. Without evidence of calibration, the BAC Verifier results must be excluded.
There was evidence that appellant was observed for twenty minutes prior to administration of the test. There is no requirement that the BAC Verifier operator personally observe the appellant. The personal observation of the arresting officer may be found to be sufficient.
Appellant's second assignment of error is sustained because of the lack of certification of ODH.
Appellant's third assignment of error states that the trial court's finding of guilt on the impaired driving offense was against the manifest weight of the evidence. An appellate court will not reverse the decision of the trial court on the grounds of manifest weight of the evidence when some competent, credible evidence going to all the essential elements of the case supports the trial court's judgment.
Included in evidence before the lower court was testimony that appellant's breath had a strong odor of alcohol, his eyes were bloodshot, and his vehicle was weaving within his lane of travel. Additionally, the appellant scored poorly on all but one phase of the field sobriety test. While the appellant did attempt to discredit this evidence on cross-examination, he offered no evidence to rebut it. As such, the record does reveal credible evidence going to the essential elements of the violation charged, and this court cannot say that the trial court's decision was against the manifest weight of the evidence.
Appellant's third assignment of error is overruled.
Appellant's second assignment of error is sustained, and appellant's first and third assignments of error are overruled. The judgment of the trial court, finding appellant guilty of operating a motor vehicle under the influence of alcohol, is affirmed. (Case No. 88AP-935.) The judgment finding appellant guilty of operating a motor vehicle while having a blood-alcohol count above .10 is reversed. (CASE No. 88AP-936.) The case is remanded to the trial court with instructions to delete the guilty finding and sentence for case No. 88AP-936 and to enter a not guilty finding on that charge. The sentence for case No. 88AP-935 shall be enforced.
Judgment in case No. 88AP-935 is affirmed; judgment in case No. 88AP-936 is reversed and remanded with instructions.
BOWMAN and YOUNG, JJ., concur.
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