State v. Hughes

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[Cite as State v. Hughes, 2019-Ohio-2690.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY STATE OF OHIO, Plaintiff-Appellee, v. SCOTT HUGHES, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 17 CO 0024 Criminal Appeal from the Municipal Court of Columbiana County, Ohio Case No. 2016 TRC 5505 BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges. JUDGMENT: Affirmed Atty. Robert L. Herron, Prosecutor and Atty. Alec Beech, Assistant Prosecutor, Columbiana County Prosecutor’s Office, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee, and Atty. Jennifer Ciccone, 755 Boardman-Canfield Road, Youngstown, Ohio 44512, for Defendant-Appellant. –2– Dated: June 20, 2019 Donofrio, J. {¶1} Defendant-appellant, Scott Hughes, appeals from a Columbiana County Municipal Court judgment convicting him of operating a motor vehicle while impaired (OVI) following his no contest plea. {¶2} In the early morning hours of August 7, 2016, Lori Crowe was driving on State Route 45 in Columbiana County when she noticed a car headed in the opposite direction pull off to the side of the road and flash its lights. She then saw another car headed straight toward the first car in the wrong lane. Crowe watched as the second car weaved left of center and then weaved off the right side of the road. Crowe was concerned for her safety and that of other motorists so she called the local state highway patrol post while she followed behind the car in question. Crowe informed the dispatcher that the car she was following was driving erratically and they were both headed toward the highway patrol post. The dispatcher dispatched Trooper Nicholas Smith, who pulled out of the post parking lot immediately behind the car in question. Crowe remained on the phone with the dispatcher the entire time and informed him when she and the other car were about to pass the highway patrol post so that the trooper knew which car to follow. {¶3} Trooper Smith followed the car for approximately one-half mile and then effectuated a traffic stop. Appellant was the driver of the car. When Trooper Smith first made contact with appellant, he could smell a “pretty strong” odor of an alcoholic beverage coming from inside appellant’s car. The trooper also noticed that appellant’s eyes were red and glassy. When the trooper asked appellant to step out of his car, he noticed that appellant was swaying as he walked and that the odor of alcoholic beverage was emanating from appellant. {¶4} At this point, Trooper Smith asked appellant to perform three field sobriety tests. Appellant agreed. Appellant performed the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. Trooper Smith noticed signs of impairment in appellant as he performed each of these tests. Trooper Smith then asked Case No. 17 CO 0024 –3– appellant to blow into a portable breathalyzer test. Appellant complied and the test displayed a .13 level. The trooper then placed appellant under arrest for OVI. {¶5} Trooper Smith transported appellant to the state highway patrol post. At the post, appellant consented to take a BAC test using the breath testing machine located at the post. This test required two breath samples. Appellant’s breath tested at .178 and .171. {¶6} Appellant was charged with OVI in violation of R.C. 4511.19(A)(1)(a) and OVI in violation of R.C. 4511.19(A)(1)(h), first-degree misdemeanors. {¶7} Appellant subsequently entered a not guilty plea to the charges. He next filed a motion to suppress raising numerous arguments including (1) there was no probable cause to support the traffic stop, (2) the trooper lacked reasonable suspicion to believe appellant was impaired, and (3) the trooper failed to comply with proper procedure in administering the field sobriety tests. {¶8} The trial court held a hearing on appellant’s motion where it heard testimony from Crowe, the dispatcher, and the trooper. The court determined that Trooper Smith had “reasonable grounds” to stop appellant’s vehicle. It further found that during the traffic stop, probable cause developed to arrest appellant for OVI. Therefore, the court overruled the motion to suppress. {¶9} Appellant subsequently entered a no contest plea. The trial court found appellant guilty of OVI in violation of R.C. 4511.19(A)(1)(a). The court found that OVI in violation of R.C. 4511.19(A)(1)(h) merged with the first charge. The court then sentenced appellant to 60 days in jail, with 57 days suspended; fined him $675; and suspended his driver’s license for six months. {¶10} Appellant filed a timely notice of appeal on August 3, 2017. The trial court stayed his sentence pending this appeal. {¶11} Appellant requested numerous extensions of time to file his brief, which this court granted. He now raises three assignments of error. Appellant argues in each of the three assignments of error that the trial court should have sustained the motion to suppress. Therefore, the same standard of review applies to all three assignments of error. Case No. 17 CO 0024 –4– {¶12} Our standard of review with respect to a motion to suppress is first limited to determining whether the trial court's findings are supported by competent, credible evidence. State v. Winand, 116 Ohio App.3d 286, 288, 688 N.E.2d 9 (7th Dist.1996), citing Tallmadge v. McCoy, 96 Ohio App.3d 604, 608, 645 N.E.2d 802 (9th Dist.1994). Such a standard of review is appropriate as, “[i]n a hearing on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate the credibility of witnesses.” State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). An appellate court accepts the trial court's factual findings and relies upon the trial court's ability to assess the witness's credibility, but independently determines, without deference to the trial court, whether the trial court applied the appropriate legal standard. State v. Rice, 129 Ohio App.3d 91, 94, 717 N.E.2d 351 (7th Dist.1998). A trial court's decision on a motion to suppress will not be disturbed when it is supported by substantial credible evidence. Id. {¶13} Appellant’s first assignment of error states: THE LOWER COURT ERRED IN FINDING THAT TROOPER SMITH HAD REASONABLE GROUNDS TO CONDUCT A TRAFFIC STOP OF MR. HUGHES[’] VEHICLE. {¶14} Appellant argues that Trooper Smith did not have reasonable grounds to effectuate a traffic stop of his vehicle. He claims that the 911 call reporting a reckless driver did not give rise to reasonable suspicion to stop him. He asserts that there was no independent police corroboration of Crowe’s statements. Appellant further points out that Crowe was unable to make out the make, color, or license plate number when she was on the phone with the dispatcher. Appellant argues this fact alone demonstrates the tip was not credible. He argues this matter required independent police corroboration before reasonable grounds for a traffic stop could be established. {¶15} In order for a traffic stop to be constitutionally valid, the officer must have reasonable and articulable suspicion that the driver “has committed, is committing, or is about to commit a crime.” State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7. Additionally, when reviewing the reasonableness of an investigative traffic stop, the stop must be viewed in light of the totality of the circumstances. Id., citing Case No. 17 CO 0024 –5– State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980), at paragraph one of the syllabus. {¶16} Standing alone, an anonymous tip does not usually demonstrate the informant's basis of knowledge or veracity to justify an investigative stop. State v. Anderson, 11th Dist. Geauga No. 2003-G-2540, 2004-Ohio-3192, ¶ 12, citing Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). But a tip can provide the reasonable suspicion required for an investigative stop when “the facts relayed in the tip are ‘sufficiently corroborated to furnish reasonable suspicion that [the defendant] was engaged in criminal activity.’” Id., quoting White, at 331. {¶17} In this case, the facts relayed in Crowe’s tip were sufficiently corroborated to provide Trooper Smith with reasonable suspicion to stop appellant’s vehicle. This was not a case where the informant simply called in with a vague anonymous tip. Instead, Crowe called the state highway patrol post and conveyed to the dispatcher in real time what she was observing. {¶18} An audio recording of Crowe’s call was played for the court. (Tr. 15). In the call, Crowe tells the dispatcher that she is driving behind a car “that’s weaving all over the road.” She gives the dispatcher her name, her location, the direction she is travelling, and the make and color of her car. Crowe tells the dispatcher that the car in question caused another car to pull off of the side of the road and flash its lights because the suspect car was driving on the wrong side of the road. She then exclaims, “Wow, he just went completely off the road!” She tells the dispatcher she is travelling at 55 miles per hour and cannot catch up to the car. Then she tells the dispatcher that the car in question is approaching the post. {¶19} During the first part of the call, Trooper Smith was with the dispatcher at the post. He was listening to Crowe’s description of what was occurring. (Tr. 39). Based on what he was hearing from Crowe, Trooper Smith believed that criminal activity was occurring. (Tr. 40). The trooper went out to his car and was able to pull behind appellant’s car as it passed the post. (Tr. 37-38). During this time, Crowe remained on the phone with the dispatcher. She relayed to the dispatcher, “There he is. If he [Trooper Smith] pulls out he’ll catch him right there.” She then told the dispatcher that trooper pulled out right behind the car in question and stated, “Yep, he got him.” Case No. 17 CO 0024 –6– {¶20} A tip of a “suspicious” vehicle, with nothing more does not provide reasonable suspicion. Anderson, 2004-Ohio-3192. Moreover, “[a] citizen informant's statement that the suspect was ‘drunk,’ without more, does not provide reasonable suspicion. An informant must give some details providing reasonable suspicion of drunk driving.” State v. Wagner, 11th Dist. Portage No. 2010-P-0014, 2011-Ohio-772, ¶ 27. {¶21} The facts relayed in Crowe’s call were sufficiently corroborated. Crowe relayed her detailed observations in real time. The alarm in her voice was audible during her call. Trooper Smith heard many of these observations before he went out to his patrol car. He then watched as appellant’s vehicle passed the post just when Crowe stated that it was about to. Crowe then relayed, “Yep, he got him,” when the trooper pulled out behind appellant. In addition to these facts, Crowe gave the dispatcher her name and telephone number. And Crowe testified at the suppression hearing as to the facts set out above. {¶22} The totality of the circumstances here demonstrate that the traffic stop was supported by reasonable suspicion. {¶23} Accordingly, appellant’s first assignment of error is without merit and is overruled. {¶24} Appellant’s second assignment of error states: THE LOWER COURT ERRED IN FINDING THAT DURING THE TRAFFIC STOP PROBABLE CAUSE AROSE FOR AN OVI ARREST. {¶25} Appellant contends the trial court should not have found that probable cause for OVI arose during the traffic stop. {¶26} Appellant first argues that even if there was reasonable suspicion to stop him, there was no probable cause that he was operating his vehicle while under the influence of alcohol. Appellant asserts the trooper had no evidence that he committed a traffic offense or a crime as he had been operating his vehicle legally and safely when the trooper activated his lights. He argues the mere odor of an alcoholic beverage does not establish probable cause. He seems to claim that the trooper should have permitted him to leave after initially stopping him. He contends that the trooper should not have detained him to conduct the field sobriety tests. Thus, appellant argues his detention past the initial stop was unreasonable and illegal. Case No. 17 CO 0024 –7– {¶27} “An officer must have reasonable suspicion, based on specific and articulable facts, to believe a person is under the influence of alcohol in order to administer field sobriety tests.” State v. Wilson, 7th Dist. Mahoning No. 01CA241, 2003-Ohio-1070, ¶ 17. The facts need not be based entirely on the manner in which the person was driving. Id., citing State v. Ullom, 7th Dist. Belmont No. 01BA7, 2002-Ohio-2796 at ¶ 16. Instead, the court is to consider the totality of the circumstances before, during, and immediately after the stop. Id., citing Atwell v. State, 35 Ohio App.2d 221, 227, 301 N.E.2d 709 (8th Dist. 1973). The totality of the circumstances may include such things as erratic driving, the odor of alcohol in the car and on the driver, avoidance of eye contact, and the time of day of the stop. See State v. Wardle, 7th Dist. Mahoning No. 16 MA 0150, 2017-Ohio9238, ¶ 11. {¶28} In this case, Trooper Smith listened as Crowe described appellant’s erratic driving. (Tr. 38-39). When the trooper first made contact with appellant, he noticed that appellant’s eyes were red and glassy. (Tr. 42). The trooper also detected a “pretty strong” odor of an alcoholic beverage coming from appellant’s vehicle. (Tr. 42). When appellant exited his car, the trooper observed that appellant swayed a little and his gait was off. (Tr. 82). The trooper also then noticed that the odor of alcoholic beverage was coming from appellant. (Tr. 43). Moreover, the traffic stop occurred at 4:40 a.m. (Tr. 37). {¶29} These facts, taken as a whole, gave Trooper Smith the reasonable suspicion needed to ask appellant to submit to field sobriety tests. The trooper was faced with an erratic driver at 4:40 a.m. who smelled of alcohol, had glassy red eyes, and swayed when he walked. Thus, appellant’s first argument is meritless. {¶30} Second, appellant argues that the trooper did not conduct the field sobriety tests in strict compliance with established National Highway Traffic Safety Administration (NHTSA) standards. He claims Trooper Smith’s testimony revealed that he conducted the HGN test in front of oscillating lights; did not ask necessary questions regarding injuries, disabilities, medical conditions, and prescriptions; did not inform appellant of the consequences for failing to follow instructions; and performed the walk-and-turn test and one-leg-stand test on uneven, downward-sloped ground. {¶31} Appellant cites to State v. Homan, 89 Ohio St.3d 421, 2000-Ohio-212, 732 N.E.2d 952, paragraph one of the syllabus, where the Ohio Supreme Court held that “[i]n Case No. 17 CO 0024 –8– order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures.” (Emphasis added). But the Court later overruled this holding in State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155. In Boczar, the Court recognized that, in 2002, the General Assembly amended R.C. 4511.19(D)(4)(b) to read: In any criminal prosecution * * * for a violation of division (A) or (B) of this section, * * * if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply: (i) The officer may testify concerning the results of the field sobriety test so administered. (ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings * * *. (iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate. (Emphasis added). {¶32} Thus, the appropriate standard is substantial compliance, not strict compliance as appellant suggests. {¶33} The evidence demonstrated that Trooper Smith met the substantial compliance standard for each of the three field sobriety tests. Case No. 17 CO 0024 –9– {¶34} As to the HGN test, Trooper Smith testified that he explained the test to appellant. (Tr. 49). He stated that appellant understood and consented to the test. (Tr. 49). {¶35} The NHTSA DWI Detection and Standardized Field Sobriety Testing manual describes ten steps in the HGN test. (Def. Ex. A). Those steps are: (1) check for eyeglasses; (2) verbal instructions; (3) position stimulus 12 to 15 inches and slightly above eye level; (4) check for equal pupil size and resting nystagmus; (5) check for equal tracking; (6) lack of smooth pursuit; (7) distinct and sustained nystagmus at maximum deviation; (8) onset of nystagmus prior to 45 degrees; (9) total the clues; (10) check for vertical nystagmus. (Def. Ex. A). {¶36} The trooper testified that he conducted the test in accordance with NHTSA standards. (Tr. 50-51). He explained how he checks for equal pupil size, equal tracking, the lack of smooth pursuit, nystagmus at maximum deviation, and vertical nystagmus. (Tr. 47-49). He also testified that he asked about eyeglasses and that he positioned the stimulus at 12 inches away. (Tr. 111, 113). Trooper Smith testified that he observed six out of six clues, which indicated impairment. (Tr. 51). {¶37} Appellant claims the trooper should not have conducted the test in front of the oscillating light from his patrol car. But the trooper stated that because appellant was not facing the lights during the test, the lights would not affect the test. (Tr. 115). {¶38} Given the above testimony, Trooper Smith substantially complied with the testing standards for the HGN test. {¶39} As to the walk-and-turn test, Trooper Smith stated that he explained the test to appellant. (Tr. 53). He testified that he conducted the test in accordance with NHTSA standards. (Tr. 53). The standards require the officer to explain the test and to demonstrate it. (Def. Ex. A). Trooper Smith testified that he did both of these things. (Tr. 116). {¶40} Trooper Smith testified that when he first put appellant in the “instruction position,” with his left foot on the imaginary line and his right foot heel-to-toe in front of his left foot, appellant stepped out of place and stated “I couldn’t do this anyway.” (Tr. 5354). The trooper asked appellant if he still wanted to attempt the test and appellant indicated that he did. (Tr. 54). During the test, the trooper observed five clues: moving Case No. 17 CO 0024 – 10 – to keep his balance during the instructions; stopping while walking to steady himself; not touching heel to toe; raising his arms more than six inches for balance; and stepping off of the line. (Tr. 54-55). Trooper Smith testified these clues were signs of impairment. (Tr. 55). {¶41} Appellant contends the trooper did not ask the necessary questions regarding injuries and medical conditions. Trooper Smith did testify that appellant informed him during questioning that he had a torn Achilles heel. (Tr. 127). The trooper further stated that appellant told him that the injury did not affect his walking. (Tr. 127128). Thus, the trooper inquired of this condition and appellant told him it did not affect his walking. {¶42} Appellant also contends Trooper Smith had him perform the test on a down-graded slope, which is in contravention to the NHTSA standards. The NHTSA states that when possible, the test should be conducted on a reasonably dry, hard, level, non-slippery surface. (Def. Ex. A). After viewing the dash-cam video of the test, Trooper Smith stated it appeared that the ground may have “possibly a little” slope. (Tr. 131). From the video, it is difficult to discern much of a slope if any. {¶43} Given the above testimony, Trooper Smith substantially complied with the testing standards for the walk-and-turn test. {¶44} As to the one-leg-stand test, Trooper Smith testified that he explained the test to appellant and demonstrated it for him. (Tr. 55, 128-129). The trooper stated that he conducted the test in accordance with NHTSA standards. (Tr. 56, 128-129). The standards require the officer to explain the test and demonstrate it. (Def. Ex. A). {¶45} During this test, the trooper observed two clues: appellant swayed while balancing and appellant put his foot down. (Tr. 56). The trooper testified that these clues were signs of impairment. (Tr. 57). {¶46} The only issue appellant takes with the one-leg-stand test is that this test was also conducted on a down-graded slope, which is in contravention to the NHTSA standards. But as noted above, from the video, it is difficult to discern much of a slope if any. And Trooper Smith only acknowledged a possible, small slope. (Tr. 131). {¶47} Given the above testimony, Trooper Smith substantially complied with the testing standards for the walk-and-turn test. Case No. 17 CO 0024 – 11 – {¶48} Because Trooper Smith substantially complied with the NHTSA testing standard for all three field sobriety tests, appellant’s second argument is meritless. {¶49} Accordingly, appellant’s second assignment of error is without merit and is overruled. {¶50} Appellant’s third assignment of error states: THE LOWER COURT ERRED IN NOT SUPPRESSING THE CHEMICAL BREATH TESTS [sic.] RESULTS BECAUSE THE STATE DID NOT LAY THE REQUIRED FOUNDATION OF ADMISSIBILITY. {¶51} In his final assignment of error, appellant asserts the state failed to lay the proper foundation to admit his breath test results. He claims the only evidence relevant to the breath test instrument, the Intoxilyzer 8000, was Trooper Smith’s testimony that he was a valid operator at the time he administered the test. Appellant argues the state was required to submit evidence that the test was administered in accordance with Ohio Department of Health regulations, specifically that the test was administered within the three-hour testing limit, that the Intoxilyzer was in proper working order, and that the record-keeping requirements of Ohio Adm.Code 3701-53-04 and 3701-53-01 were met. {¶52} After a defendant files a motion to suppress breath test results, the state has the burden to show that the test was administered in substantial compliance with the regulations prescribed by the Director of Health. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 24. Once the state satisfies its burden, the burden shifts to the defendant to demonstrate he was prejudiced “by anything less than strict compliance.” Id. {¶53} Appellant claims there was not substantial compliance with several requirements. {¶54} First, appellant claims the state did not prove the timing requirement. {¶55} In an OVI prosecution, evidence of the concentration of alcohol in the defendant’s breath is admissible if the breath sample was withdrawn within three hours of the time of the alleged violation. R.C. 4511.19(D)(1)(b). Trooper Smith testified that he effectuated appellant’s traffic stop at 4:40 a.m. (Tr. 37). The Ohio Department of Health Alcohol and Drug Testing report (ODHADT report) from appellant’s test indicates Case No. 17 CO 0024 – 12 – that the test was administered at 5:28 a.m. (State Ex. 1). Thus, the trooper administered the test within the statutory time limit. {¶56} Next, appellant asserts the state did not demonstrate that the Intoxilyzer was in proper working order. {¶57} Trooper Smith testified that the state highway patrol post uses the Intoxilyzer 8000. (Tr. 133). The Ohio Administrative Code lists the Intoxilyzer 8000 as an approved “evidential breath testing instrument” that may be used to analyze whether an individual's breath alcohol concentration exceeds a legally allowable amount. Ohio Adm.Code 3701-53-02(A)(3). {¶58} The trooper testified that the Intoxilyzer is internally calibrated and connected to a computer in Columbus. (Tr. 70). So he does not calibrate it. (Tr. 70). The trooper did, however, undergo specialized training to become a licensed Intoxilyzer operator. (Tr. 62). He stated that the machine runs an internal check every time a test is run. (Tr. 135). He testified that the Intoxilyzer will not allow him to run a test if it is not in proper working order. (Tr. 135). Thus, the state demonstrated that the Intoxilyzer was in proper working order. {¶59} Appellant next contends the state did not demonstrate substantial compliance with the record keeping requirements of Ohio Adm.Code 3701-53-04. For the Intoxilyzer 8000, Ohio Adm.Code 3701-53-04 requires: (B) Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code [the Intoxilyzer 8000 used in this case] shall automatically perform a dry gas control using a dry gas standard traceable to the national institute of standards and technology (NIST) before and after every subject test. For purposes of an instrument listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code, a subject test shall include the collection of two breath samples. A dry gas control is not required between the two breath samples. Dry gas control results are valid when the results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the alcohol concentration on the manufacturer's certificate of analysis for that dry gas standard. A dry gas control result Case No. 17 CO 0024 – 13 – which is outside the range specified in this paragraph will abort the subject test or instrument certification in progress. (C) Representatives of the director shall perform an instrument certification on approved evidential breath testing instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code using a solution containing ethyl alcohol approved by the director of health according to the instrument display for the instrument being certified. A dry gas control using a dry gas standard traceable to the national institute of standards and technology (NIST) shall also be used when a certification is performed. An instrument shall be certified no less frequently than once every calendar year or when the dry gas standard on the instrument is replaced, whichever comes first. A calendar year means the period of twelve consecutive months, as indicated in section 1.44 of the Revised Code, beginning on the first day of January, and ending on the thirty-first day of December. Instrument certifications are valid when the certification results are at or within five one-thousandths grams per two hundred ten liters of the target value for that approved solution. Instruments with certification results outside the range specified in this paragraph will require the instrument be removed from service until the instrument is serviced or repaired. Certification results shall be retained in a manner prescribed by the director of health. {¶60} In this case, the ODHADT report lists the dry gas control test results before and after appellant gave his two samples. (State Ex. A). Both of the dry gas control tests were within the requirement of 0.005 grams per two hundred ten liters of the alcohol concentration on the manufacturer's certificate of analysis for the dry gas standard as required by Ohio Adm.Code 3701-53-04(B). (State Ex. A). {¶61} Additionally, the ODHADT report indicates that the date of the last certification was April 5, 2016. (State Ex. A). The date of appellant’s test was August 7, 2016. Thus, the machine was certified within the one-year requirement of Ohio Adm.Code 3701-53-04(C). Case No. 17 CO 0024 – 14 – {¶62} Appellant further contends the state did not demonstrate substantial compliance with Ohio Adm.Code 3701-53-01. This section sets out the ways the results of blood, breath, urine, or other bodily substances test must be expressed. For breath, the concentration of alcohol is to be measured in grams by weight of alcohol per two hundred ten liters of deep lung breath. Ohio Adm.Code 3701-53-01(A)(2). Appellant’s breath sample was measured in compliance with this section. {¶63} Based on the above, the state met its burden in demonstrating that the breath test was administered in substantial compliance with the regulations prescribed by the Director of Health. The burden then shifted to appellant to demonstrate he was prejudiced by anything less than strict compliance. Appellant presented no evidence of prejudice. {¶64} Accordingly, appellant’s third assignment of error is without merit and is overruled. {¶65} For the reasons stated above, the trial court’s judgment is hereby affirmed. Waite, P. J., concurs. Robb, J., concurs. Case No. 17 CO 0024 [Cite as State v. Hughes, 2019-Ohio-2690.] For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Municipal Court of Columbiana County, Ohio, is affirmed. Costs to be taxed against the Appellant. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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