State v. Edgell6/24/2005
R.C. 4511.19 turns on substantial compliance with ODH regulations." Defiance v. Kretz (1991), 60 Ohio St.3d 1, 3. "'Once the state demonstrates substantial compliance, the burden shifts to the defendant to show he was prejudiced by the state's failure to strictly comply with the regulations.'" State v. Perreault, 11th Dist. No. 2001-P-0061, 2002-Ohio-7449, at , quoting State v. Starkey (Sept. 28, 1998), 11th Dist. No. 97-P-0098, 1998 Ohio App. LEXIS 4530, at 6.
{ } Again, appellant failed to provide a transcript from the suppression hearing for our review. However, based on the transcript from the jury trial,Sergeant Heverly testified that he was a senior operator, trained in administering BAC tests pursuant to ODH regulations, and explained the procedure used to calibrate the test. Sergeant Heverly identified Exhibit B, the permit at issue, as a certified copy of his original certificate from the ODH, which was issued on May 20, 2001, and valid for two years. Sergeant Heverly explained that senior operators are permitted to re-test up to six months before the expiration of their current certification, and that his permit arrived early to ensure no lapse in his certification.
{ } Also, the permit contains an embossed state seal and was certified on the back by Sergeant Duerr on May 12, 2001. Specifically, the back of the permit, which is signed by Sergeant Duerr and a notary public/deputy clerk, contains the following language: "I, Sergeant Terrance A. Duerr, being first duly sworn according to law, hereby state that I am custodian of the records of the Ohio State Highway Patrol, and that this is a true and accurate copy of the original record which is in my custody."
{ } As such, Sergeant Duerr, as a custodian of records for the Ohio State Highway Patrol, is a "'person authorized to make a certification'" pursuant to Evid.R. 902(4). State v. McCardel (Sept. 28, 2001), 11th Dist. No. 2000-P-0092, 2001 Ohio App. LEXIS 4432, at 14. Thus, the permit was properly certified and self-authenticated under Evid.R. 902(4). Id. at 13. Therefore, the trial court did not abuse its discretion in admitting the permit as a certified copy of a public record pursuant to Evid.R. 902(4).
{ } Here, the state established substantial, if not strict, compliance with the ODH regulations. However, appellant fails to demonstrate prejudice from any lack of strict compliance. Based on Schlee, supra, there is substantial evidence upon which the jury could reasonably conclude beyond a reasonable doubt that all of the elements of the offense have been proven.
{ } For the foregoing reasons, appellant's sole assignment of error is not well-taken. The judgment of the Portage County Municipal Court, Ravenna Division, is affirmed.
DIANE V. GRENDELL, J., COLLEEN M. O'TOOLE, J., concur.
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