State v. Castle, 168 Ohio Misc.2d 6, 2012-Ohio-1937
On July 3, 2011, Floyd Castle was arrested and charged with OVI (drunk driving) and other offenses. When the Trooper administered a chemical test he chose to conduct that test on a BAC DataMaster breath test devise instead of Ohio's newest machine the Intoxilyzer 8000. The Trooper was qualified as a senior operator on the BAC DataMaster. The Trooper also held an operator-access card to administer tests on the Intoxilyzer 8000. The issue before the court is whether or not the Ohio Administrative Code, specifically O.A.C. 3701-53-09(D), allows the Trooper to conduct a test on the BAC DataMaster once he has been issued the Intoxilyzer 8000 operator-access card.
O.A.C. 3701-53-09(D) states:
Individuals desiring to function as operators using instruments listed under paragraph (A)(3) of rule 3701-53-09(D) of the Administrative Code shall apply to the director of health for operator access cards on forms prescribed and provided by the director of health. The director of health shall issue operator access cards to perform tests to determine the amount of alcohol in a person's breath to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code. Individuals holding operator access cards issued under this rule shall use only those evidential breath testing instruments for which they have been issued an operator access card. [Emphasis added].
The argument for not allowing the Trooper to test on a BAC DataMaster is plainly set forth in the Code. Administrative regulations are reviewed in the same manner as statutes. State v. Ready, 10th Dist NO. 05AP-501, 2006-Ohio-1212. Legislative intent is the "cornerstone of statutory construction and interpretation." State v. Jordan, 89 Ohio St.3d 488, 491-492, 733 N.E.2d 601 (2000). If the language of the statute is unambiguous, a court must apply it as written; however, if more than one reasonable interpretation of the language exists, then the statute is ambiguous and must be construed by the court. Id., citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996); State ex rel Celebrezze v. Allen City Bd. of Commrs., 32 Ohio St.3d 24, 27, 512 N.E.2d 498 (1996).
After going through an exhaustive analysis of the statute and the legislative intent of the regulation, the court concludes that "Ohio Administrative Code 3701-53-09 is clear and unambiguous. If an individual has an operator or senior-operator permit for a BAC DataMaster, the individual may administer chemical breath tests using a BAC DataMaster. The individual may obtain multiple permits and use any instrument for which the individual has been issued a permit. The individual may obtain an operator-access card. As in this case, the individual may also be issued a permit after being issued an operator-access card. However, once the individual has been issued an operator-access card, the individual is prohibited from using any other type of instrument, including those for which the individual may have been issued a permit." Id. The court then goes on to recognize that applying the law might have a negative or undesirable impact for law enforcement. "Nonetheless, the court is "constrained by the principles of separation of powers and cannot rewrite" the regulation. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
If you have been arrested on suspicion of operating a vehicle while impaired, you may have a defense if the arresting officer chose to use a machine other than the Intoxilyzer 8000. Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263). For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671. Immediate help is available by filling out this CONTACT form. For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500. Follow DaytonDUI on Twitter at www.Twitter.com/DaytonDUI or Get Twitter updates via SMS by texting follow DaytonDUI to 40404. DaytonDUI is also available on Facebook and you can access updates by becoming a fan of Dayton DUI/OVI Defense. You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.