I agree with the majority that the motion to suppress should have been denied because Boys was not unconstitutionally seized under the Fourth Amendment. But I am convinced that the motion to suppress should have been granted as to the breath test results because the police did not conduct a proper radio frequency interference ("RFI") survey.
The state had the burden to show that the breath test administered to Boys substantially complied with the rules promulgated by the Ohio Department of Health, Ohio Adm. Code Chapter 3701-53. State v. Plummer (1986), 22 Ohio St.3d 292, 22 OBR 461, 490 N.E.2d 902, syllabus. Though strict compliance with the regulations is not always possible or necessary, the regulations must be adhered to where practical. Here, three of the eight RFI vectors extended outside the police station into the driveway, where police cruisers travel. The police cruisers are equipped with mobile radios that have transmitter antennas, which are capable of distorting the accuracy of breath-testing equipment. The police did not check for RFI on two of the three vectors that extended into the driveway, only surveying the axis closest to the breath analyzer. *Page 646
The state argues that the breath analyzer has an internal RFI detector that aborts tests when RFI is present, and thus that the test administered to Boys was reliable. But breath analyzers with this type of internal mechanisms were not excepted from the RFI surveys mandated by former Ohio Adm. Code Chapter 3701-53, and thus they must comport with the regulations in effect at the time.1 See, e.g., State v. East (May 17, 1996), Montgomery App. No. 15482, unreported, 1996 WL 257208; Lakewood v. Shaw (Dec. 20, 1995), Cuyahoga App. No. 67733, unreported, 1995 WL 753921; State v. Bennett (1990), 66 Ohio App.3d 595,585 N.E.2d 897. The majority admits as much, but still gives undue weight to the internal mechanism's presence.
The state also argues that the regulations, as pertaining to mobile radios, mandate nothing more than surveying on one axis at the point closest to the breath analyzer, as was done in this case. But Appendix H to Ohio Adm. Code 3701-53-02 must be interpreted as mandating, where practical, the testing of all axes on which a mobile radio can be realistically positioned within thirty feet of the breath analyzer, for interference by mobile radios. Appendix H states: "Test mobile radio if transmitter antenna can be positioned within 30 feet from instrument. * * * With mobile radio positioned closest to instrument, transmit." Appendix H explicitly mandates the testing of hand-held radios on all eight vectors to determine whether interference is present. I am unaware of any reason why a mobile radio would not have to be tested on every axis that could draw interference when a hand-held unit must be. The majority also admits that there was a "misunderstanding of the instructions for testing mobile radios."
Though the state argues that "Officer Ward had determined that anything beyond that closest distance would not result in any interference," the officer was not shown to be an expert in electromagnetics or physics, and he presumably relied only on Appendix H itself in making this determination. See, e.g., East,supra. The majority readily admits that the police officers misunderstood the instructions in Appendix H, yet willingly accepts the officer's determination, which was apparently based on a misreading of these instructions, as evidence of substantial compliance. In fact, the officer testified: "It's been ruled that the closest axis that the mobile can be moved to is the one that you test, because anything outside of that axis is outside of the range." When defense counsel asked if he had any legal authority for the judge, the officer told him they would find it, if need be. I certainly cannot find it, and apparently the majority cannot find it either. The majority blindly gives weight to this testimony, stating that *Page 647 the police officers "determined that any radio beyond that distance would not result in interference." Then, like the testifying officer, the majority asserts, without explanation, that a mobile radio broadcasting further than six feet from the building, which was the closest point to the building that a mobile radio could be positioned, would not cause RFI, but the majority has left out its reasoning. Apparently the majority is willing to rely on the officer's determination that it was so, without any proof or explanation.
I would hold that, where practical, all axes on which a mobile radio antenna can be realistically positioned within thirty feet of the breath analyzer must be tested for RFI. See State v.Freking (Feb. 8, 1996), Franklin App. No. 95APC07-871, unreported, 1996 WL 52891 (holding that officers substantially complied by testing mobile radio on every axis that a vehicle could cross within thirty feet of the breath-testing machine, though cruiser was not positioned at closest point to machine on one axis because of impracticality).
Here, the state has not demonstrated that the officers were unable to test all three axes that extended into the driveway for RFI. From the record, it is clear that testing these three axes was possible, but that the officers did not feel that it was necessary under the former regulations. The error undermines the reliability of the test, and therefore the officers did not substantially comply with the regulations. Because the state has not met its burden of showing that it substantially complied with the regulations, the issue of whether Boys showed that he was prejudiced by the breath test should not be reached. The cross-assignment should be sustained, so I respectfully dissent.
1 As the majority explains, current regulations, effective July 7, 1997, have virtually eliminated RH survey requirements. The operability of the internal RFI detection is to be verified during the weekly instrument check. Painter Looker, Ohio Driving Under the influence Law (1997) 108, Section 9.19.