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State v. Anderson9/30/2005
romulgated rules that govern permits for those individuals who perform BAC testing. Relevant to this action, Ohio Adm.Code 3701-53-09 provides, in pertinent part:
(A) Individuals desiring to function as laboratory directors or laboratory technicians shall apply to the director of health for permits on forms prescribed and provided by the director. A separate application shall be filed for a permit to perform tests to determine the amount of alcohol in a person's blood, urine or other bodily substance, and a separate permit application shall be filed to perform tests to determine the amount of drugs of abuse in a person's blood, urine or other bodily substance. A laboratory director's and laboratory technician's permit is only valid for the laboratory indicated on the permit.
(B) Individuals desiring to function as senior operators or operators shall apply to the director of health for permits on forms prescribed and provided by the director of health. A separate application shall be filed for each type of evidential breath testing instrument for which the permit is sought.
The director of health shall issue appropriate permits to perform tests to determine the amount of alcohol in a person's breath to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code. Individuals holding permits issued under this rule shall use only those evidential breath testing instruments for which they have been issued permits.
(C) Permits issued under paragraphs (A) and (B) of this rule shall expire one year from the date issued, unless revoked prior to the expiration date. An individual holding a permit may seek renewal of an issued permit by the director under paragraphs (A) and (B) of this rule by filing an application with the director no sooner than six months before the expiration date of the current permit. The director shall not renew the permit if the permit holder is in proceedings for revocation of his or her current permit under rule 3701-53-10 of the Administrative code.
{ } The above stated rule became effective on September 30, 2002. Prior to this date, rules effective September 7, 1997, governed, and Ohio Adm.Code 3701-53-09 read, in part, " ermits issued under paragraph (A) of this rule shall expire two years from the date issued, unless revoked. " (Emphasis added.)
{ } The only witness to testify at the suppression hearing was Mr. Ward, Bureau Chief of the Bureau of Alcohol and Drug Testing under the Ohio Department of Health ("Ward"). Ward was involved in drafting the changes to Ohio Adm.Code 3701-53-09 that became effective on September 30, 2002. Ward testified that to obtain a permit, an individual must apply, go through a basic two-day class, and successfully complete an examination. Once an individual has a valid permit, he or she is notified by the Department of Health ("department") within six months of the permit's expiration so that he or she may be re-examined and re-issued a permit. A permit holder may renew the permit at any time prior to its expiration.
{ } Each renewal permit has printed on its face both an issue date, which is the anniversary date of the original issue date, and an expiration date, which is one or two years after the issue date. According to Ward, any renewal application received prior to September 30, 2002, was processed as a two-year permit and any application received after that date was processed as a one-year permit. Thus, it is possible that a two-year permit have an issue date after September 30, 2002, because a permit holder could have applied before the rule change, as is the scenario with Officers Adkins and Beeba.
{ } It is undis
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