In State v. McMahon, 12TRC-34824B, the city of Cincinnati appealed a ruling which granted a motion to suppress. The trial court suppressed the results of McMahon’s breath test after determining that the director of health had not promulgated the necessary requirements under R.C. 3701.143 for obtaining the access card required for operation of an Intoxilyzer 8000 machine.
The issue for appeal was whether the trial court correctly found that the director of health had failed to promulgate the qualifications required for the issuance of an access card to those seeking to operate an Intoxilyzer 8000 machine. Pursuant to R.C. 3701.143, the director of the department of health is charged with implementing methods for analyzing a person’s breath, blood, or other bodily substance in order to determine the amount of alcohol in a particular bodily substance, and with ascertaining the qualifications required for a person to perform such analyses. Ohio Adm.Code Chapter 3701-53 contains the department of health’s codification of the methods and qualifications that it was charged with implementing under R.C. 3701.143.
Mary Martin, the department of health’s program administrator for alcohol and drug testing, testified at the suppression hearing regarding the issuance of access cards. According to Martin, an individual desiring to operate the Intoxilyzer 8000 must first fill out an application pursuant to Ohio Adm.Code 3701- 53-09(D). The individual must then meet the qualifications listed above and found in Ohio Adm.Code 3701-53-07(E). According to Martin, an access card is the type of permit that is issued to an operator of the Intoxilyzer 8000.
The Court of Appeals found for the government., stating, “After a detailed review of the relevant statutes, we find that the department of health has promulgated the necessary qualifications for the issuance of an operator access card. We are persuaded by Martin’s testimony espousing the department of health’s position that the access card is the type of permit issued to an operator of an Intoxilyzer 8000 machine. When a statue is silent or ambiguous with respect to an issue, a court must give deference to an agency’s interpretation of its
own regulations if the interpretation is reasonable. Wells Fargo Bank, N.A. v. Isaacs, 1st Dist. No. C-100111, 2010-Ohio-5811, ¶ 9-10, citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Here, the department of health’s position that an access card is the type of permit that is issued to an operator of an Intoxilyzer 8000 under Ohio Adm.Code 3701-53-07(E) comports with R.C. 3701.143, which authorizes the director of health to issue permits to qualified persons, but does not reference the issuance of access cards.
JUDGMENT: REVERSED AND CAUSE REMANDED
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights,Beavercreek, and throughout Ohio. He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense. Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263). For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671. For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500. Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube. You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.