Ohio's 12th. District Court of Appeals last Monday added to the state's evolving Intoxilyzer 8000 & impaired driving case law volumn with a decision that solely examined the symantics of that portion of the Administrative Code dealing with "instrument check," or calibration requirements, for approved breath-testing machines. (See State v. Kormos, 2012 Ohio 3128)
The case, as Cincinnati.com phrased it, is a case of "first impression," which has not been considered by the 12th District Court of Appeals before. The ruling will apply to all similar cases in eight southwest Ohio counties, including Butler, Clermont and Warren, and have the potential of influencing cases in Hamilton County and elsewhere in the state.
Pertinent to the appeal was Ohio Administrative Code Sec. 3701-53-04, specifying the "instrument check," or calibration requirements, for approved breath-testing machines, with the state argument being the trial court's decision in suppressing test result evidence was based on an erroneous interpretation of Ohio Adm.Code 3701-53-04(B), as it applies to the Intoxilyzer 8000.
Applying Webster's Third New International Dictionary's definition of the word "subject" to Ohio Adm. Code 3701-53-04(B), the 12th. District said, "it was quite clear that a 'subject test' is synonymous with running the Intoxilyzer 8000 on a single 'subject,' i.e., 'individual' under law enforcement's control. Because the language set forth by the Health Department is clear and definite, we must apply it as written and hold that there is only one 'subject' being tested during any one breathalyzer test. See Kneisley v. Lattimer-Stevens Co., 40 Ohio St.3d 354 (1988). It follows that the items listed in the 'Subject Test Report' form, including 'Subject Test 1' and 'Subject Test 2,' are simply recurring components of the same breathalyzer test, where one subject blows twice before reaching the end result.
"We also note that our view of Ohio Adm.Code 3701-53-04(B) is consistent with what appears to be the Health Department's current interpretation thereof. See State ex rel.Turner v. Eberlin, 117 Ohio St.3d 381, 2008-Ohio-1117, ¶ 17 (courts must give due deference to the department's reasonable interpretation of administrative regulations); State v. Yoder, 66 Ohio St.3d 515, 518 (1993).
"Lastly, we note that Ohio Adm.Code 3701-53-04(B) does not refer to dry gas control testing before, after, and in between 'every subject test ***.' If it did, we would be more inclined to agree with Kormos that each time a particular individual blows into the Intoxilyzer 8000, another 'subject test' occurs, which would require a dry gas control test. However, the Health Department did not insert such language, and we cannot expound upon its silence to construe the phrase 'subject test' beyond its common and unambiguous meaning. Thus, it is clear there is only one 'subject test' per person breathalyzed, even if the test includes two incidents of blowing. As a result, we decline to interpret the code phrase that requires dry gas control tests 'before and after every subject test' as requiring them 'before and after every separate blow.' See Grubb v. Hollingsworth, 12th Dist. No. CA91-12- 024, 1992 WL 276547, *2, 1992 Ohio App. LEXIS 5086 (Oct. 5, 1992) (courts cannot rewrite the law or judicially insert words that are not used); State v. Ferrato, 167 Ohio App.3d 136, 2006-Ohio-3219, ¶ 11 (11th. Dist.).
"... we find the Intoxilyzer 8000 calibration sequence comports with the requirements of Ohio Adm.Code 3701-53-04(B)."