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Regulations! We Don't Need No Stinkin' Regulations!
By Jon J. Saia (Adams County, Allen County, Ashland County, Ashtabula County, Athens County, Auglaize County, Belmont County, Brown County, Butler County, Carroll County, Champaign County, Clark County, Clermont County, Clinton County, Columbiana County, Coshocton County, Crawford County, Cuyahoga County, Darke County, Defiance County, Erie County, Franklin County, Fulton County, Gallia County, Geauga County, Guernsey County, Hamilton County, Hancock County, Hardin County, Harrison County, Henry County, Highland County, Hocking County, Holmes County, Huron County, Jackson County, Jefferson County, Lake County, Lawrence County, Logan County, Lorain County, Lucas County, Madison County, Mahoning County, Medina County, Meigs County, Mercer County, Miami County, Monroe County, Morgan County, Muskingum County, Noble County, Ottawa County, Paulding County, Perry County, Pike County, Portage County, Preble County, Putnam County, Richland County, Ross County, Sandusky County, Scioto County, Seneca County, Stark County, Summit County, Trumbull County, Tuscarawas County, Union County, Van Wert County, Vinton County, Warren County, Washington County, Wayne County, Williams County, Wood County, Wyandot County)
Regulations concerning the Administration of breath testing instruments are contained in Chapter 3701-53 of the Ohio Administrative Code. "Substantial compliance" with the Regulations is required in order for the result of a breath test to be admissible as evidence at trial. The Ohio Supreme Court has held that when a procedure is required by the use of the word "shall," the failure to comply with that procedure amounts to something less than substantial compliance1. Despite this mandate, lower courts continue to allow the admission of breath test instrument results based upon incorrect legal standards.
Prior to Burnside, the failure to follow a Regulation, whether required by the use of the word "shall", or not usually resulted in a finding that law enforcement substantially complied with the Regulations. These cases are still being relied upon by many courts to uphold the substantial compliance requirements despite the holding in Burnside.
Under prior law, the state was required to show "substantial compliance" as defined by the individual court. Once "substantial compliance" was shown, the burden shifted to the Defendant to show prejudice based upon regulatory errors2. Burnside changed this rule of law.
In a unanimous decision, the Ohio Supreme Court stated, "To avoid usurping a function that the General Assembly has assigned to the Department of Health, however, we must limit the substantial compliance standards set forth in Plummer to excusing only errors that are clearly de minimus."3
The use of the word "shall" in the regulations does not simply "advise" the procedure, it "demands" it. The failure to comply with such a procedure when required by the use of the word "shall" cannot be found to be a de minimus error. Prejudice to the Defendant is irrelevant because substantial compliance cannot be demonstrated. Prejudice to the Defendant becomes relevant only in circumstances where the state can demonstrate substantial compliance and errors are found to be de minimus. An error is de minimus if "advised" and not "demanded" by the Regulations.4
Some court's have found that the fact that the lack of substantial compliance with the Regulations is irrelevant where the instrument was determined to be in "proper working order" at the time the test at issue was administered. Such reliance is misplaced as the state has three requirements to meet prior to the admission of the results of a breath test at trial: (1) The instrument was in proper working order; (2) The operator had the proper qualifications to conduct the test; and (3) The test was conducted in substantial compliance with Ohio Department of Health Regulations.5
The fact that the instrument is determined to be in "proper working order" does not negate the requirement of "substantial-compliance" with the Regulations. The same holds true with respect to the lack of proper qualifications of the operator.
Despite all attempts to render the Regulations meaningless, the Ohio Supreme Court gave new life to the regulations with Burnside decision. Now, the goal is to get courts recognize that the Regulations are alive and well.
REGULATIONS! We do need stinkin' Regulations!
1 State v. Burnside (2003) 100 Ohio St.3d 152.
2 State v. Plummer (1980), 22 Ohio St. 3d 292
3 Burnside (Emphasis added)
4 Burnside
5 State v. Whetherill 2006-Ohio-5687
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