State v. Boys

Doan, Presiding Judge. Defendant-appellee, Stephen B. Boys, was charged with driving under the influence of alcohol pursuant to R.C. 4511.19(A)(1) and (A)(3). He moved to suppress the results of a breath test and other evidence, claiming, among other *642 things, that the stop of his vehicle and his subsequent arrest violated his Fourth Amendment rights. The evidence presented at the hearing on the motion to suppress showed that police officers were dispatched to a McDonald’s restaurant on Queen City Avenue to investigate a suspicious vehicle. When Officer James Kelleher arrived at the scene, several McDonald’s employees pointed out the car. The manager, whom Kelleher had dealt with on previous occasions, explained that the driver had used the drive-through and had, at some point, fallen asleep at the wheel. She stated that the driver had pulled into a parking space and had been parked in the lot since that time. Kelleher saw the car that the McDonald’s employees had described; the engine was running and the driver appeared to be sleeping. Concerned about a possible medical problem, Kelleher and another officer approached the vehicle. He knocked on the window for approximately a minute before Boys, the driver, awoke. The officer asked Boys if something was wrong. Boys opened his door and answered briefly, but seemed uncertain of his location. When Boys opened his door, the officers noticed a strong smell of alcohol about his person. They also noticed that his eyes were bloodshot and watery and that his speech was slurred. The officers asked him to get out of his car, and they testified that, at that time, he was no longer free to leave. They administered field sobriety tests to Boys, which, in their opinion, he failed. Subsequently, Boys was arrested and taken to the police station, where he was given a breath test. The trial court granted Boys’s motion to suppress, concluding that the officers did not have a reasonable and articulable suspicion that Boys was engaged in criminal activity when they first encountered him. It rejected Boys’s other arguments, including his claim that the breath test result should have been suppressed because the police had failed to conduct a proper radio frequency interference survey. The state has appealed the trial court’s judgment pursuant to R.C. 2945.67 and Crim.R. 12(J), contending in its sole assignment of error that the trial court erred in granting Boys’s motion to suppress. We agree. A seizure does not occur simply because a police officer approaches an individual and asks a few questions. An encounter that does not involve physical force or a show of authority does not necessarily implicate the Fourth Amendment. Florida v. Bostick (1991), 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389; State v. Hummons (Sept. 18, 1996), Hamilton App. No. C-950747, unreported, 1996 WL 526697. More specifically, when the police approach and question the occupants of a parked vehicle, their conduct does not constitute a seizure and does not require a reasonable and articulable suspicion of criminal activity. State *643 v. Johnston (1993), 85 Ohio App.3d 475, 620 N.E.2d 128; State v. Robinson (Sept. 8,1997), Warren App. No. CA97-04-093, unreported, 1997 WL 563285. The officers’ approach of Boys’s vehicle did not constitute a seizure and therefore did not have to be supported by a reasonable and articulable suspicion of criminal activity. However, the officers stated that Boys was not free to leave after they told him to get out of his car. At that time, they could point to specific, articulable facts, including Boys’s appearance of being asleep at the wheel and disoriented, his bloodshot, watery eyes, and the odor of alcohol about his person, that gave them a reasonable suspicion that Boys had been driving under the influence of alcohol. Consequently, their seizure of Boys at that time to have him take field sobriety tests did not violate his Fourth Amendment rights. See Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Johnston, supra. Compare State v. Campbell (1990), 68 Ohio App.3d 688, 589 N.E.2d 452. Accordingly, we hold that the trial court erred in granting Boys’s motion to suppress. We sustain the state’s assignment of error. Additionally, Boys submits his own assignment of error, in which he alleges that the trial court should have granted his motion to suppress on the basis that the police did not conduct a proper radio frequency interference survey. See App.R. 3(C) (one who intends to defend a judgment on a ground other than that relied on by the trial court but who does not seek to change the judgment or order need not file a notice of cross-appeal). He argues that three of the eight axes that former Ohio Adm.Code 3701-53-02 required to be tested extended outside the police department building into the driveway, where police cruisers equipped with mobile transmitting units traveled. Because police officers failed to test two of those axes, he claims that the radio frequency interference survey did not substantially comply with the regulations. We find that this assignment of error is not well taken. The state bears the burden to demonstrate that the breath test administered to the defendant substantially complied with the regulations promulgated by the Department of Health as set forth in former Ohio Adm.Code 3701-53-02. State v. Plummer (1986), 22 Ohio St.3d 292, 22 OBR 461, 490 N.E.2d 902, syllabus. Once the state meets its burden, the burden shifts to the defendant to prove that he or she was prejudiced by any variation from the regulations. State v. Miller (Mar. 16, 1994), Hamilton App. Nos. C-930290 and C-930291, unreported, 1994 WL 79590. The record shows that the breath analyzer had an internal detector that would shut the machine down if it detected any radio frequency interference. The senior operator who calibrated the machine every week testified that if any radio frequency interference was present, the detector aborted the test. He further *644 testified that when he calibrated the machine shortly before Boys’s arrest, the detector was working properly. Effective July 7, 1997, new Department of Health regulations became effective that eliminated the need for a radio interference survey. They now require that operability of an internal radio frequency detector be verified during the weekly instrument check. However, the offense in the present case occurred before those regulations became effective. Applying the former version, other appellate courts have held that even if the instrument has a radio frequency interference detector, substantial compliance with the regulations is still required. Some of these courts expressed concern that there was a lack of proof from which the trial court could determine the validity and accuracy of the machine’s internal detector. State v. Bennett (1990), 66 Ohio App.3d 595, 597-598, 585 N.E.2d 897, 898-899; Lakewood v. Shaw (Dec. 20, 1995), Cuyahoga App. No. 67733, unreported, 1995 WL 753921. In contrast, one of the senior operators in the present case verified that the detector was working properly during his weekly instrument check. See State v. Symes (1994), 96 Ohio App.3d 156, 644 N.E.2d 729. Further, in this case two police operators conducted a radio frequency survey of the breath analyzer as required by the regulations. Compare Bennett, supra (no survey conducted). They testified that they tested hand-held radios on all eight axes. The machine detected radio frequency interference and aborted the test when a radio came within six inches. Due to a misunderstanding of the instructions for testing mobile radios in automobiles, the police officers tested only the axis upon which a mobile radio could be placed closest to the breath analyzer. They parked a cruiser on that axis so that the radio was within six feet of the building. They determined that any radio beyond that distance would not result in interference. In regard to radio frequency interference surveys, this court has stated: “Where the error on the part of the officers performing the test goes to the reliability of the test, substantial compliance will not be found. Conversely, those errors going to the recording of results and not to the reliability of the test itself will be held to be substantial compliance. Further, testimony of surveying officers bolsters the test’s reliability.” State v. Meyer (Feb. 28, 1996), Hamilton App. Nos. C-950416, C-950417 and C-950418, unreported, 1996 WL 82693. See, also, State v. Adams (1992), 73 Ohio App.3d 735, 743-744, 598 N.E.2d 176, 181— 182. In our view, the test in this case was reliable. The instrument’s internal detector was working. Hand-held radios could be brought to within six inches of the instrument before radio frequency interference affected its workings and the internal detector aborted the test. The police tested mobile radios within six feet *645 of the instrument and determined that there was no radio frequency interference at that point. No mobile radio in a cruiser could get closer to the building than six feet, and a radio transmitting outside that distance, including all points on the two untested axes, would not cause radio frequency interference. Consequently, we hold that the state substantially complied with the Department of Health regulations. See State v. Freking (Feb. 8, 1996), Franklin App. No. 95APC07-871, unreported, 1996 WL 52891; Miller, supra. Because the state substantially complied with the regulations, Boys then bore the burden to demonstrate prejudice from any failure to strictly comply with the regulations, a burden that he did not meet. Miller, supra. Accordingly, the trial court correctly refused to grant the motion to suppress on that basis, and we overrule Boys’s assignment of error. For the reasons stated in our ruling on the state’s only assignment of error, we reverse the judgment of the trial court and remand the case for further proceedings in accordance with the law. Judgment reversed and cause remanded. Marianna Brown Bettman, J., concurs. Painter, J., concurs in part and dissents in part.