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Appellate Decision: Rules (as written) Don’t Apply

Dayton DUI Attorney Charles Rowland > DUI Law  > Appellate Decision: Rules (as written) Don’t Apply

Appellate Decision: Rules (as written) Don’t Apply

A recent 10th District Court of Appeals10th district Appeals decision in State v. Castle2012-Ohio-6028, decided on an interpretation of the Ohio Administrative Code that will allow the government to use both a BAC DataMaster or any other approved device to prosecute drunk driving cases in Ohio.  The court determined only the limited issue of whether the issuance of an operator access card under Ohio Adm.Code 3701-53- 09(D) prohibits the operator from performing breath tests using an instrument for which the operator also has been issued either an operator or senior operator permit under Ohio Adm.Code 3701-53-09(B).

“The BAC DataMaster and Intoxilyzer 8000 are both breath testing instruments approved for use in determining breath alcohol content under Ohio Adm.Code 3701-53-02(A). In order to operate a BAC DataMaster, an individual must qualify for and receive either a senior operator or operator permit from the director of health. Ohio Adm.Code 3701-53-09(B). Operation of an Intoxilyzer 8000 similarly requires an individual to qualify for and have been issued an operator access card by the director of health. Ohio Adm.Code 3701-53-09(D). The permit and operator access card are not interchangeable, as the operator access card must be physically swiped into a card reader on the Intoxilyzer 8000 in order to enter operator information, whereas the permit is not physically scanned in order to use the BAC DataMaster.” Id. at   The Trooper in this case possessed both a valid permit and an operator access card at the time of the arrest.

Ohio Adm.Code 3701- 53-09(D) unambiguously prevents a person to whom the director of health has issued an operator access card and a permit from using those breath testing instruments that require an operator permit. Ohio Adm.Code 3701-53-09(D) provides, in pertinent part, that “[i]ndividuals 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.” Similarly, Ohio Adm.Code 3701-53-09(B) provides, in pertinent part, “[i]ndividuals holding permits issued under this rule shall use only those evidential breath testing instruments for which they have been issued a permit.”

Writing for a unanimous court, Judge Bryant applied the rules of statutory interpretation as set forth in Reedy at ¶ 10, citing State ex rel. R. Bauer & Sons Roofing & Siding, Inc. v. Indus. Comm., 84 Ohio St.3d 62, 66 (1998); Youngstown Sheet & Tube Co. v. Lindley, 38 Ohio St.3d 232, 234 (1988), quoting Kroger Grocery & Baking Co. v. Glander, 149 Ohio St. 120, 125 (1948) (noting “[a]n administrative rule, ‘* * * issued pursuant to statutory authority, has the force and effect of law unless it is unreasonable or is in clear conflict with statutory enactment governing the same subject matter’ “), announcing that “[a] court’s paramount concern in ascertaining the meaning of a statute is legislative intent.” State v. Jackson, 102 Ohio St.3d 380, 385, 2004-Ohio-3206, ¶ 34, citing State ex rel. Asberry v. Payne, 82 Ohio St.3d 44, 47 (1998).  The court then went on to do an analysis of the two relevant provisions.

Since Ohio Adm.Code 3701-53-09(B) and (D) address the same subject matter, we read them in pari materia. We acknowledge that the two rules facially appear to be unambiguous. The difficulty with defendant’s argument lies in the result it produces. An operator such as Trooper Schack would be unable to operate either machine, being excluded from each because he held a permit or card for the other. Moreover, in reading the two provisions as conflicting, defendant’s argument disregarded the evident purpose of the regulations: to allow individuals to use instruments for which the director of health determined they were qualified under Ohio Adm.Code 3701-53-07. As a result of defendant’s interpretation of the rules, the trial court concluded that even though Trooper Schack had been issued a permit to use a BAC DataMaster after he was issued an operator access card, Trooper Schack could not use a BAC DataMaster. Indeed, were defendant’s argument correct, the director of health would have had no reason to issue a BAC DataMaster permit to the trooper. Cf. Salem v. Koncelik, 164 Ohio App.3d 597, 2005- Ohio-5537, ¶ 16 (10th Dist.), citing Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professionals Guild of Ohio, 46 Ohio St.3d 147 (1989) (pointing out that courts must give considerable deference to an administrative agency’s interpretation of its own administrative rules).

{¶12} Such a construction of the statute renders meaningless the decision of the director of health to issue permits and produces an absurd result by denying qualified individuals the ability to use an instrument for which they possess a use permit. To not only achieve the administrative purpose of the rules in ensuring only qualified individuals are permitted to operate the various breath-testing machines, but also harmonize the two rules, requires Ohio Adm.Code 3701-53-09(B) and (D) each be construed to allow individuals holding both a permit and an operator access card to use the instrument for which they are qualified under either the permit or the operator access card.

The court cited to two other Ohio decisions reaching the same result, “those courts that previously addressed this issue reached the same conclusion. See State v. Nethers, 5th Dist. No. 12-CA-30, 2012-Ohio-5198, ¶ 14-17; State v. Hudepohl, 166 Ohio Misc.2d 1, 2011-Ohio-6917, ¶ 9-14.

This decision is a blow to defendants who have argued that the plain language of the Ohio Administrative Code would require exclusion of tests conducted on the BAC DataMaster.  It is one of the many points that Ohio DUI attorneys plan on challenging as a result of the botched implementation of the Intoxilyzer 8000 and the subsequent departure of many top officials at the Ohio Department of Health.  As of this writing, no appellate court has taken significant steps to prevent the introduction of tests from the flawed Intoxilyzer 8000.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburg, 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.

Charles Rowland


Charles M. Rowland II has been representing the accused drunk driver for over 20 years. Contact him at (937) 318-1384 if you find yourself facing a DUI (now called OVI) charge.

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