Bolivar v. Dick - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Village of Bolivar, Appellee, v. Dick, Appellant.
[Cite as Bolivar v. Dick (1996), ______ Ohio St.3d ______.]
Motor vehicles -- Driving while intoxicated -- Observation requirement
of BAC Verifier operational checklist satisfied, when.

(No. 95-372 -- Submitted at the New Philadelphia Session April 17,
1996 -- Decided July 31, 1996.)
When two or more officers, one of whom is a certified operator of the BAC
Verifier, observe a defendant continuously for twenty minutes or more
prior to the administration of a breath-alcohol test, the observation
requirement of the BAC Verifier operational checklist has been satisfied.

CERTIFIED by the Court of Appeals for Tuscarawas County, No.
94AP040025.

On January 10, 1993, Patrolman James Goodall of the Bolivar Police
Department arrested appellant, Jessica Dick, for driving under the influence of
alcohol. Goodall transported Dick to the Ohio State Highway Patrol post in
New Philadelphia, where a BAC Verifier test was administered by Trooper
Andrew Slezak, a certified operator of the BAC Verifier. Patrolman Goodall

observed Dick continuously for over one-half hour prior to arriving at the
Highway Patrol station; upon their arrival, Trooper Slezak observed Dick for
"roughly sixteen minutes" prior to administering the BAC Verifier test. Dick's
breath-alcohol level exceeded the prohibited level and she was charged with
violating village of Bolivar Ordinance 434.01(A)(3).

The trial court granted Dick's motion to suppress the results of the BAC
Verifier test because the twenty-minute observation requirement of the
operational checklist in the BAC Verifier Report Form (see Appendix A) had
not been complied with by Trooper Slezak. The court of appeals reversed,
finding that together Patrolman Goodall and Trooper Slezak had substantially
complied with the twenty-minute observation requirement

The court of appeals entered an order certifying a conflict with other
jurisdictions on the following issue: "Whether, in a prosecution pursuant to
R.C. 4511.19, the result of a breath-alcohol content test is admissible where the
Department of Health regulation that the subject be observed for twenty
minutes before administration of the test is satisfied in whole or in part by

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someone other than the operator of the testing equipment." The cause is now
before this court upon our determination that a conflict exists.

Richard L. Fox, Bolivar Solicitor, for appellee.

William K. Hanner, for appellant.

PFEIFER, J. There is no dispute about the facts in this case. Jessica Dick
was arrested for driving under the influence. She took a breath-alcohol test on
the BAC Verifier and the results were above the level prohibited by Bolivar
Ordinance 434.01(A)(3) and by R.C. 4511.19.1 The only issue is whether, in a
prosecution pursuant to R.C. 4511.19 (or any similar municipal ordinance), the
result of a breath-alcohol test is admissible when the Department of Health
regulation which requires the subject to be observed for twenty minutes prior to
administration of the test is satisfied in whole or in part by someone other than
the operator of the testing instrument.

R.C. 4511.19 (D) states that any bodily substance collected for the
purpose of determining whether a person is in violation of the statute "shall be
analyzed in accordance with the methods approved by the director of health

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***." Regulations promulgated by the Director of Health in Ohio Adm.Code
3701-53-02 (B) state in pertinent part that "[b]reath samples shall be analyzed
according to the operational checklist for the instrument being used." Thus, the
operational checklist, which is part of the BAC Verifier Test Report Form (see
Appendix A), provides the "methods approved by the director of health" for the
operation of the BAC Verifier.

The first item on the operational checklist is "Observe subject for twenty
minutes prior to testing to prevent oral intake of any material." It is clear that
the focus of this item is "to prevent oral intake of any material" and not to
ensure that a certified operator does the observing. See State v. Steele (1977),
52 Ohio St.2d 187, 6 O.O.3d 418, 370 N.E.2d 740. Further, under the holding
of State v. Plummer (1986), 22 Ohio St.3d 292, 22 OBR 461, 490 N.E.2d 902,
at paragraph one of the syllabus, "the results of a urine-alcohol test
administered in substantial compliance with Ohio Adm.Code 3701-53-05 are
admissible in a prosecution under R.C. 4511.19." With respect to the issue
before us, we see little difference between a urine-alcohol test and a breath-

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alcohol test and adopt the holding of Plummer to the case at hand.
Accordingly, we hold that when two or more officers, one of whom is a
certified operator of the BAC Verifier, observe a defendant continuously for
twenty minutes or more prior to the administration of a breath-alcohol test, the
twenty-minute observation requirement of the BAC Verifier operational
checklist has been satisfied.

The judgment of the court of appeals is affirmed, and the case is
remanded to the trial court for further proceedings consistent with this decision.

Judgment affirmed

and cause remanded.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and STRATTON,
JJ., concur.

FOOTNOTE

1 Bolivar Ordinance 434.01 (A)(3) is substantially similar to R.C.
4511.19(A). "Because the local ordinance is patterned after R.C. 4511.19, our

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analysis refers to R.C. 4511.19 and the relevant case law interpreting that
statute." Defiance v. Kretz (1991), 60 Ohio St.3d 1, 3, 573 N.E.2d 32, 34.

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