“The authentication inquiry is not whether the document is what its author claimed it to be but, rather, whether the document is what its proponent at trial claims it to be. Thus, a proffered document filled with lies and misrepresentations can be authenticated by testimony that the proffered document is indeed the document filled with lies and misrepresentations that its proponent claims.”
How later courts described this case
- “The authentication inquiry is not whether the document is what its author claimed it to be but, rather, whether the document is what its proponent at trial claims it to be. Thus, a proffered document filled with lies and misrepresentations can be authenticated by testimony that the proffered document is indeed the document filled with lies and misrepresentations that its proponent claims.”
Written by the judges who cited it.
The opinion
Close, Judge,
dissenting.
The appendix to this dissent is the trial court’s well-written decision. He says it well — I will not repeat it. I would emphasize, however, that the trial court’s holding that evidence to be admissible should possess “circumstantial guarantees of trustworthiness tending to assure the truthfulness of the hearsay testimony despite the absence of oath and cross-examination” is the cornerstone of evidence.
Quite simply put, the Director of the Department of Health neither delegated his authority nor performed the required testing himself. There was no properly authenticated calibration solution certificate, and the results of the BAC verifier test cannot, therefore, be admitted.
Columbus v. Robbins
(1989), 61 Ohio App.3d 324 , 572 N.E.2d 777 .
I would affirm the well-reasoned and thoughtful judgment of the trial court.
APPENDIX
Decision of Franklin County Municipal Court, Case No. M9601TFC-102784 Decided Aug. 28, 1996
Charles A. Schneider, Judge.
This cause came before the court on defendant’s motion to suppress the BAC Verifier test results based on failure to comply with Ohio Department of Health regulations. By agreement of the parties the transcripts from
State of Ohio v. Workman,
M9505TFC-118505, were used in this case.
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The court is persuaded that procedures used by the Director of the Ohio Department of Health to approve calibration solutions violated the Ohio Administrative Code; therefore, the defendant’s breath test results should be suppressed.
Ohio Adm. Code 3701-53-04(A) requires “a solution of ethyl alcohol approved by the director of health.” In response to a pretrial order of this court, the prosecution determined that the certificate of calibration for the relevant batch solution was prepared using a copy of an original blank certificate. The blank certificate already contained the signature of Dr. Peter Somani, the Director of the Ohio Department of Health. Dr. Somani signed just one blank master certificate, and the department used the photocopied certificates bearing his signature to represent the director’s approval of the calibration solutions.
The integrity of the breathalyzer tests is dependant upon compliance with the mandates of the Ohio Department of Health. In a practical sense, a test result above legal limit is sufficient to convict a defendant under R.C. 4511.19. A conviction under R.C. 4511.19 will necessarily result, by law, in a period of incarceration. To determine that the defendant violated R.C. 4511.19, the trier of fact need only find that the defendant’s chemical test reading was at the prescribed level and that the defendant was operating a motor vehicle in the state of Ohio.
Newark v. Lucas
(1988), 40 Ohio St.3d 100, 103 , 532 N.E.2d 130, 133 . Therefore, the accuracy of the BAC Verifier test results is a critical issue, especially in light of the mandatory incarceration, in determining a defendant’s guilt or innocence.
Defiance v. Kretz
(1991), 60 Ohio St.3d 1, 3 , 573 N.E.2d 32, 34 . This court concludes that director’s approval practices have tainted the defendant’s BAC Verifer test results and the calibration solution relevant to defendant has not been approved in substantial compliance with Department of Health regulations.
Certificates of approval of the calibration solutions are admissible at trial pursuant to Evid.R. 803(6) as an exception to the rule against hearsay evidence. However, the rule allowing for the introduction of records of regularly conducted activity does not apply if the “source of information or the method or circumstances or preparation indicate a lack of trustworthiness.” Evid.R. 803(6). The decision to admit a business record into evidence pursuant Evid.R. 803(6) rests within the sound discretion of the trial court. Evid.R. 104;
State v. Heinish
(1990), 50 Ohio St.3d 231, 239-240 , 553 N.E.2d 1026, 1035-1036 . The Staff Notes to Evid.R. 803(6) state that evidence intended to be admissible under the business records exception should possess “circumstantial guarantees of trustworthiness tending to assure the truthfulness of the hearsay testimony despite the absence of oath and cross examination.”
State v. Patton
(Mar. 5, 1992), Allen App. No. 1-91-12, unreported, 1992 WL 42806 . This court concludes that the calibration
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certificates prepared by the aforementioned procedures are neither reliable nor trustworthy representations of Dr. Somani’s approval.
This court’s conclusion does not attempt to require Dr. Somani to conduct tests of the solutions and fill out each blank in the approval form himself. “[S]ubdelegation of authority, impliedly or expressly exists, and must exist to some degree.”
Bell v. Bd. of Trustees
(1973), 34 Ohio St.2d 70, 74 , 63 O.O.2d 115, 117 , 296 N.E.2d 276, 278 . However, “the real issue for decision is at what point delegation must stop and the [public administrator] must act.”
Id.
The power of the Director of Health to delegate aspects of the approval process implied from practical necessity of the circumstances, but the manner in which the director has delegated these tasks is unacceptable to this court. However, the director has only two choices: either establish a procedure and delegate the authority or perform the certification himself. If the authority is delegated the procedure established as part of the delegation must be followed.
In
Bell ,
the Ohio Supreme Court held that the board of trustees of the county hospital properly delegated authority to hearing examiners. The hospital board established specific guidelines and procedures to be followed ny the hearing examiners as they performed the delegated tasks and also “retained the power to adopt or reject, in whole or in part, the findings of the hearing officers and made the final decision on termination of employment.”
Id.
at 76 , 63 O.O.2d at 119 , 296 N.E.2d at 279 . The director of the Department of Health has testified that he did not adopt procedures, for the delegated tasks, nor was he aware of the procedures used to certify the calibration solutions at the department. (Partial Transcript,
State of Ohio v. Workman,
M9505TFC-118505, at 22.) Simply stating that responsibility was delegated to Dr. Halpin with nothing more does not constitute proper delegation. It does not include the specific guidelines and procedures referred to in
Bell .
Even if it was a proper delegation, there is no evidence that Dr. Halpin conducted the certification. In other words the certification process, even assuming one was established, was never followed.
Furthermore, the procedures used to prepare the relevant certificates do not indicate who performed the laboratory tests, or who completed the blanks in the approval form. Such questions would be inconsequential if and only if Dr. Somani signed and actually approved the solution
after
the laboratory tests were performed and
after
the approval form blanks were completed. In fact, the certificate of batch number 94080 contains only the signature of Dr. Peter Somani, who did not review the certificates after the data was generated in laboratory tests. These practices are clearly distinguishable from the delegation procedures implemented by the board of directors in
Bell
because Dr. Somani has
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not retained the power to adopt or reject the certification of a calibration solution and thereby make the final decision. The court finds the director’s method of approving the calibration solutions amounts to an evasion of a duty mandated by Ohio Adm.Code 3701-53-04.
Furthermore, to authenticate a certificate of calibration, the state is required to “support a finding that the evidence in question is what its proponent claims.” Evid.R. 901(A). The relevant certificate is titled “Approval of Calibration Solution” and indicates that it is prepared pursuant to Ohio Adm.Code 3701-53-04, which requires the approval of the Director of the Department of Health. The director played no part in the approval process. The practice of signing a master certificate in blank and allowing an unknown employee of the department to perform the calibration tests and fill out the certificate cannot be considered an approval.
In
Columbus v. Robbins
(1989), 61 Ohio App.3d 324 , 572 N.E.2d 777 , the Tenth District Court of Appeals held that pursuant to Ohio Adm.Code 3701-53-04, the state is required to produce a certificate of approval of the calibration solution. “Without a properly authenticated calibration solution certificate, the results of the BAC Verifier test cannot be admitted.”
Robbins,
61 Ohio App.3d at 328 , 572 N.E.2d at 780 . This court will not admit the calibration certificate because it cannot be properly authenticated. Even assuming that the approval form could be properly authenticated, the certificate cannot be considered a reliable report admissible under Evid.R. 803(6). With no certificate of approval of the batch solution, the state has no evidence of calibration pursuant to Department of Health regulations. Therefore, BAC Verifier results must be excluded.
Robbins,
61 Ohio App.3d at 328 , 572 N.E.2d at 779-780 .
For the foregoing reasons, defendant’s motion to suppress the results of the BAC Verifier test is granted.