State v. Douglas

In State v. Douglas, 1st Dist. No. C-030897, 2004 Ohio 5726, the First District stated: "We note that the language used in the regulation about where the operational manual is to be kept is mandatory: 'the operational manual provided by the instrument's manufacturer shall be on file in the area where the breath tests are performed.' While there is no question that a BAC DataMaster instrument is approved for alcohol testing, pursuant to Ohio Adm.Code 3701-53-02(A), we are unable to determine from the record where the 'actual location of the manual' was, much less that it was kept in the vicinity as required by Ohio Adm.Code 3701-53-01(B). "The Ohio Supreme Court has rejected the argument that where the state fails to establish substantial compliance, the results should be admitted when the defendant can show no prejudice. The court stated that 'any evidence of prejudice would have been relevant only after the state demonstrates substantial compliance with alcohol-testing regulations.' Moreover, because we, and the state, have been unable to find any authority to support a conclusion that this noncompliance was a 'minor procedural deviation,' we must agree with Douglas that the state made no showing of substantial compliance with this regulation." Id. at P6-7.