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State v. Hyde8/31/2000
JUDGMENT: Vacated; final judgment entered
Appellant Mark A. Hyde appeals a judgment of the Lancaster Municipal Court convicting him of driving under the influence of alcohol (R.C.4511.19(A)(3)), upon a plea of no contest:
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN OVERRULING THE PORTION OF APPELLANT'S MOTION TO SUPPRESS/MOTION IN LIMINE WHICH ALLEGED THAT THE B.A.C. VERIFIER WAS NOT PROPERLY CALIBRATED BEFORE AND/OR AFTER THE APPELLANT'S TEST PER O.A.C. 3701-53-04, SAID ERROR BEING PREJUDICIAL TO THE APPELLANT.
II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO DISMISS OF NOVEMBER 29, 1999, SAID ERROR BEING PREJUDICIAL TO THIS APPELLANT.
On December 11, 1998, at approximately 9: 00 p.m., Trooper Tito Duran stopped a vehicle, driven by appellant, for speeding. After conducting field sobriety tests, the trooper placed appellant under arrest for driving under the influence in violation of R.C. 4511.19(A)(1). Appellant agreed to submit to a breath-alcohol test. He tested .144 grams of alcohol per 210 liters of breath. Appellant was cited for violation of R.C. 4511.19 (A)(3). At his arraignment on December 16, 1998, appellant entered a plea of not guilty, and filed a time waiver. On January 20, 1999, appellant filed a motion to suppress. Following a hearing, the court overruled appellant's motion to suppress the results of the breath alcohol test, and set a trial date of December 9, 1999. On December 9, appellant pled no-contest to a violation of R.C. 4511.19. The State dismissed the charges of driving under the influence pursuant to R.C. 4511.19 (A)(1), and speeding. Appellant was convicted and sentenced.
I.
Appellant first argues that the court erred in overruling his motion to suppress the results of the BAC verifier test, as the State did not establish the machine was calibrated by a senior operator, as required by Ohio Administrative Code, § 3701-53-04(A). The court found that appellant stipulated to facts concerning the calibration records, and therefore waived any claim that the State failed to demonstrate the calibration was conducted by a senior operator. Appellant made the following stipulation concerning the calibration records: Atty Snider: Your Honor, I'm willing to stipulate that the, to speed this up a little bit, I'm willing to stipulate based upon some testimony I heard in another hearing on Monday and my discussions with Sergeant, Sergeant Lee, I'm willing to stipulate that the records, the appropriate calibration records and the test records are kept for the appropriate three year time and they're kept in the proximity to the machine according to rule.
Pros. Trimmer: Okay. Do you want me to get into the specific calibrations with regard to this defendant's test?
Atty. Snider: Uh, yes, that's still an issue.
This stipulation covered only the three-year time period, and the fact that the records were kept in proximity to the machine. Appellant did not stipulate that the calibration was conducted by a senior operator. At the suppression hearing, the State called Trooper Dennis Lee to testify concerning his position as custodian of the records of BAC verifier, and to verify the fact that he calibrated the machine immediately prior to appellant's test. However, the State failed to establish that Sergeant Lee met the qualifications of being a senior operator, as of December 6, 1998, the date of the calibration. State's Exhibit "Three," the calibration report, has Trooper Lee's signature labeled "senior operator's signature". It further states that he holds permit number 5641-5-6, with an expiration date of March 10, 2001. However, Ohio Department
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