[Cite as State v. Wulsin, 2013-Ohio-4777.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120876
TRIAL NO. 12TRC-3123
Plaintiff-Appellant, :
vs. : O P I N I O N.
SUSAN WULSIN, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: October 30, 2013
John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and David Sturkey,
Assistant City Prosecutor, for Plaintiff-Appellant,
Robert Healey, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER , Judge.
{¶1} Plaintiff-appellant the city of Cincinnati appeals the trial court’s
judgment suppressing the breath test of defendant-appellee Susan Wulsin. Based
upon this court’s opinion in State v. McMahon, 1st Dist. Hamilton No. C-120728,
2013-Ohio-2557, we reverse the trial court’s judgment granting Wulsin’s motion to
suppress.
{¶2} On January 18, 2012, Wulsin was charged with speeding in
violation of R.C. 4511.21(C), operating a vehicle under the influence of alcohol in
violation of R.C. 4511.19(A)(1)(a), and operating a vehicle with a prohibited
concentration of breath alcohol in violation of R.C. 4511.19(A)(1)(d). She submitted
to a breath-alcohol test on the Intoxilyzer 8000. Her breath-alcohol content was .152
grams by weight of alcohol per 210 liters of her breath. She subsequently filed a
motion to suppress challenging a number of issues including the admissibility of her
breath-alcohol test results.
{¶3} At a two-day evidentiary hearing on the motion, Mary Martin, the
program administrator for alcohol and drug testing at the Ohio Department of
Health (“ODH”) testified that the permit the ODH issues for the Intoxilyzer 8000 is a
plastic access card and that the card is necessary to operate the machine. To obtain
an access card, an individual must apply on the prescribed ODH form and satisfy the
three qualifications enumerated for an operator’s permit under Ohio Adm.Code
3701-53-07(E): (1) have a high school diploma or a General Education Development
Degree; (2) be a sworn law enforcement officer or a corrections officer; and (3) pass a
course that shows the individual is able to correctly operate the instrument for which
he or she is seeking the permit. Ohio Adm.Code 3701-53-09(D). In order to retain
the access card, an individual must take a test once every calendar year or have a
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OHIO FIRST DISTRICT COURT OF APPEALS
successful valid subject test once every year. Ohio Adm.Code 3701-53-08(D). If an
individual does not comply with these requirements, the ODH can then deactivate an
individual’s operator access card. Ohio Adm.Code 3701-53-09(E) and 3701-53-
10(C)(2). Martin testified that Trooper Joe Westhoven, the Ohio Highway Patrolman
who had administered Wulsin’s breath test, had met all the requirements to obtain
an operator access card for the Intoxilyzer 8000, and that his access card was still
active.
{¶4} Trooper Westhoven, likewise, testified that he had completed a
one-day Intoxilyzer 8000 training course at the Clermont County Sheriff’s Office and
had then taken a proficiency test. ODH had then issued him an Intoxilyzer 8000
access card, which he had used to administer Wulsin’s breath test.
{¶5} At the conclusion of the hearing, Wulsin’s counsel stated that he
was narrowing the scope of Wulsin’s motion to suppress to issues surrounding the
Intoxilyzer 8000. Counsel argued, among other things, that Officer Westhoven was
not authorized to perform Wulsin’s breath test because the state had failed to comply
with R.C. 3701.143 and the Ohio Administrative Code to establish sufficient
qualifications for issuing an operator access card. The trial court agreed, granting
Wulsin’s motion to suppress on this basis.
{¶6} The trial court held that because Ohio Adm.Code Section 3701-53-
07(E) referred only to the requirements for obtaining a senior operator’s permit or
an operator’s permit, and did not include the phrase “access card,” that the
Administrative Code was silent with respect to the ODH requirements for the
issuance of an operator’s access card for the Intoxilyzer 8000. As a result, the trial
court held that Officer Westhoven’s access card for the Intoxilyzer 8000 was invalid,
and that the breath test he had administered to Wulsin was inadmissible.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} In a single assignment of error, the city argues that the trial court
erred in suppressing the results of Wulsin’s breath test on the basis that the Ohio
Department of Health had failed to promulgate the necessary requirements for an
operator of the Intoxilyzer 8000 to be issued an access card. We agree.
{¶8} In McMahon, 2013-Ohio-2557, at ¶ 11-14, we reversed the trial court’s
judgment, suppressing a breath test result on this same basis. In McMahon, Martin
had, likewise testified that it was the ODH’s position that the access card was the
type of permit issued to an operator of the Intoxilyzer 8000 machine. Id. at ¶ 11. We
held that the ODH’s “position that the access card, which is referenced in Ohio
Adm.Code 3701-53-09(D), 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.” Id. at ¶ 13.
{¶9} We further held that when the relevant administrative code
provisions were read together, they supported the department of health's
interpretation. Id. at ¶ 14. We looked specifically to Ohio Adm.Code Sections 3701-
53-09 and 3701-53-07. Id. We noted that under Ohio Adm.Code 3701-53-09(D),
“individuals qualified to use the Intoxilyzer 8000 machine are referred to as
operators, and that the provision provided such operators shall be issued access
cards to perform breath tests.” Id. We further acknowledged that “Ohio Adm.Code
3701-53-07 provides qualifications for the issuance of either operator permits or
senior operator permits; it categorizes the issuance of permits into these two groups,
rather than by the type of machine being operated.” Id. We stated that “because
users of the Intoxilyzer 8000 machine are operators, reason dictates that they would
be issued, if the required qualifications are met, operator permits under Ohio
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OHIO FIRST DISTRICT COURT OF APPEALS
Adm.Code 3701-53-07(E).” Id. We, therefore, concluded that “it [wa]s a reasonable
interpretation of these provisions that the access card referenced in Ohio Adm.Code
3701-53-09(D) is the type of permit issued to an operator of an Intoxilyzer 8000
machine under Ohio Adm.Code 3701-53-07(E).” Id.
{¶10} Given our decision in McMahon, we sustain the city’s sole assignment
of error, reverse the trial court’s judgment, and remand this cause for further
proceedings in the trial court in accordance with this opinion and the law.
Judgment reversed and cause remanded.
DINKELACKER, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry this date.
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