[Cite as State v. Clark, 2018-Ohio-1046.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. John W. Wise, P.J. 

 Plaintiff - Appellee : Hon. W. Scott Gwin, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

MATTEO J. CLARK : Case No. 17 CAA 08 0057 

 : 

 Defendant - Appellant : O P I N I O N 

 

 NUNC PRO TUNC 

CHARACTER OF PROCEEDING: Appeal from the Delaware County 

Court of Common Pleas, Case No. 

17 CR 1 02 0064 

 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: April 24, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CAROL HAMILTON O'BRIEN SHAWN R. DOMINY 

Delaware County Prosecuting Attorney 1900 Polaris Parkway, Suite 450 

 Columbus, Ohio 43240 

By: CORY J. GOE 

Assistant Prosecuting Attorney 

140 North Sandusky Street 

Delaware, Ohio 43015 
Delaware County, Case No. 17 CAA 08 0057 2 

Baldwin, J.

{¶1} Appellant, Matteo J. Clark, appeals the decision of the Delaware County 

Court of Common denying his motion to suppress the results of a urine test. Appellee is 

the state of Ohio. 

STATEMENT OF FACTS AND THE CASE 

{¶2} Trooper Scott Tallman responded to the scene of an accident on November 

2, 2016 and encountered appellant. The Trooper noted a strong odor of alcohol about 

appellant while he was in the Trooper’s vehicle. Appellant admitted to consuming alcohol. 

Appellant did not complain of any injuries but his eyes were glassy and blood shot and 

he was stumbling over his words. 

{¶3} The Trooper administered the Horizontal Gaze Nystagmus Test, Walk and 

Turn Test, and asked appellant to recite the alphabet backward between the letters D and 

Q and count backward between the numbers 58 and 73. 

{¶4} The appellant was transported to a hospital and lost consciousness enroute. The Trooper read the terms of Form 2255 to appellant at the scene, but did not 

ask for appellant’s consent for testing until he had been admitted to the hospital. 

Appellant was asked to provide a urine sample at the hospital and he expressly 

consented. The trial court found that timing of the collection of the urine sample fulfilled 

all requirements. 

{¶5} The Ohio State Patrol Crime Lab received the urine sample on November 

10, 2016 at 1:29 PM. Criminalist Jeffrey Turnau, removed the sample from refrigerated 

storage on November 16, 2016 and performed gas chromatography to discover the 
Delaware County, Case No. 17 CAA 08 0057 3 

alcohol content. Criminalist Turnau discovered the alcohol content to be 0.177 grams per 

100 milliliters of urine, an amount in excess of the limit described in R.C. 4511.19(A)(1)(e). 

{¶6} The Delaware County Grand Jury indicted appellant on February 3, 2017 

for five offenses: two counts of Aggravated Vehicular Assault, under R.C. 

2903.08(A)(1)(a), two counts of Aggravated Vehicular Assault, under R.C. 

2903.08(A)(2)(b) and one charge of Operating a Vehicle While Under the Influence of 

Alcohol or Drugs, R.C. 4511.19(A)(1). Appellant plead not guilty to all charges. 

{¶7} On February 21, 2017 appellant filed motions to suppress the results of the 

field sobriety tests and the urine alcohol test. The state filed its responses on March 6 

and 7, 2017. The trial court conducted a hearing beginning April 17, 2017 and finishing 

May 18, 2017. Trooper Tallman and forensic scientist Turnau testified as stated above. 

Mr. Turnau also testified that he was trained and certified and described how he 

completed the testing. He testified that the equipment had been properly calibrated, the 

lab was certified and that the records were maintained for three years. State regulations 

were on the lab bench and all testing was done in accordance with Department of Health 

regulations. 

{¶8} The trial court suppressed the HGN test, but overruled the appellant’s 

motion to suppress the results of the remaining field sobriety tests and the urine test in its 

entry dated May 31, 2017. On June 26, 2017, the Appellant entered a plea of no contest 

to all charges and was found guilty on all counts. A pre-sentence investigation was 

ordered and a sentencing hearing was scheduled for July 31, 2017. 
Delaware County, Case No. 17 CAA 08 0057 4 

{¶9} On July 31, 2017 the trial court sentenced appellant to eighteen months in 

prison on Count One and Count Two and sixty days for Count Five. No sentence was 

issued for Counts Three and Four. All sentences were ordered to be served concurrently. 

{¶10} The Appellant filed a Notice of Appeal and a Motion to Suspend the 

Execution of Sentence on August 7, 2017. The sentence in this case was ordered to be 

suspended during the pendency of this appeal. 

{¶11} The Appellant submits one assignment of error: 

{¶12} THE TRIAL COURT ERRED BY OVERRULING THE DEFENDANT’S 

MOTION TO SUPPRESS THE URINE TEST BECAUSE THE STATE DID NOT PROVE 

THE URINE TEST SUBSTANTIALLY COMPLIED WITH REGULATIONS ISSUED BY 

THE OHIO DEPARTMENT OF HEALTH. 

STANDARD OF REVIEW 

{¶13} There are three methods of challenging on appeal a trial court's ruling on a 

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In 

reviewing a challenge of this nature, an appellate court must determine whether the 

findings of fact are against the manifest weight of the evidence. State v. Fanning 1 Ohio 

St.3d 19, 437 N.E.2d 583 (1982). Second, an appellant may argue that the trial court 

failed to apply the appropriate test or correct law to the findings of fact. See State v. 

Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141, (4th Dist.1993), overruled on other 

grounds. Finally, assuming the trial court's findings of fact are not against the manifest 

weight of the evidence and it has properly identified the law to be applied, an appellant 

may argue that the trial court incorrectly decided the ultimate or final issue raised in the 

motion to suppress. When reviewing this type of claim, an appellate court must 
Delaware County, Case No. 17 CAA 08 0057 5 

independently determine, without deference to the trial court's conclusion, whether the 

facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio 

App.3d 93, 96, 641 N.E.2d 1172 (8th Dist. 1994); State v. Claytor (1993), 85 Ohio App.3d 

623, 627, 620 N.E.2d 906 (4th Dist. 1993). 

{¶14} Judicial officials at suppression hearings may rely on hearsay and other 

evidence to determine whether alcohol test results were obtained in compliance with 

methods approved by the Director of Health, even though that evidence may not be 

admissible at trial. State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 

752 at paragraph 2 of the syllabus. [Citing Evid.R. 101(C)(1)]. 

{¶15} The Supreme Court of Ohio has held that rigid compliance with ODH 

regulations is not required as such compliance is not always humanly or realistically 

possible. State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986). See, also, 

State v. Morton, Warren App. No. CA98-10-131, 1999 WL 296700 (May 10, 1999). 

Rather, if the state shows substantial compliance with the regulations, absent prejudice 

to the defendant, alcohol tests results can be admitted in a prosecution under R.C. 

4511.19. In State v. Burnside, 100 Ohio St.3d 152,159, 2003 -Ohio- 5372, 797 N.E.2d 71, 

the Ohio Supreme Court limited the substantial-compliance standard set forth in Plummer

to “excusing only errors that are clearly de minimis.” The Court continued: “Consistent 

with this limitation, we have characterized those errors that are excusable under the 

substantial-compliance standard as ‘minor procedural deviations.’” Id., citing State v. 

Homan, 89 Ohio St.3d 421, 426, 732 N.E.2d 952 (2000). 

{¶16} The burden to establish substantial compliance, however, only extends to 

the level with which the defendant takes issue with the legality of the test. State v. 
Delaware County, Case No. 17 CAA 08 0057 6 

Johnson, 137 Ohio App.3d 847, 851, 739 N.E.2d 1249 (12th Dist.2000). When the 

defendant's motion to suppress merely raises a generalized claim of inadmissibility and 

identifies the section(s) of the Administrative Code implicated in that claim, the burden on 

the state is slight. State v. Bissaillon, 2nd Dist. Greene No. 06-CA-130, 2007-Ohio-2349, 

¶ 12; See also State v. Embry, 12th Dist. Warren No. CA2003-11-110, 2004-Ohio-6324, 

at ¶ 24 (simply reiterating Administrative Code provisions creates a burden on the State 

to respond only in general to the issues raised). The State is only required to present 

general testimony that there was substantial compliance with the requirements of the 

regulations; specific evidence is not required unless the defendant raises a specific issue 

in the motion to suppress. State v. Bissaillon, 2nd Dist. Greene App. No. 06-CA-130, 

2007-Ohio-2349, at ¶ 12. 

{¶17} Appellant filed a motion to suppress on February 21, 2017 and listed 

eighteen grounds for suppression of the urine test in very general terms by reiterating the 

relevant Administrative Code provisions. Appellant has abandoned all but the following 

three allegations: 

In the instant case, the results of the urine test must be suppressed 

unless the state can disprove the: 

*** 

8. Results of controls, certifications, calibration checks and records of 

service and repairs were not retained in accordance with OAC 3701-53-01 

as required by OAC 3701-53-04. 

*** 
Delaware County, Case No. 17 CAA 08 0057 7 

14. The laboratory did not successfully complete a national proficiency 

testing program as required by OAC 3701-53-06 and OAC 3701-53-09. 

*** 

18. The laboratory director and/or laboratory technician were not subject to 

surveys and proficiency examinations by representatives of the director of 

health as required by OAC 3701-53-07 and OAC 3701-53-09. 

{¶18} Appellant did not include any factual basis for these allegations in his 

motion, but relied on these general assertions and contended the state failed to 

substantially comply with the requirements described in the cited sections of the Ohio 

Administrative Code. 

{¶19} The state offered the testimony of Criminalist Jeffrey Turnau regarding the 

completion of the urine test and compliance with the above cited Code Sections. When 

asked whether the records were maintained for three years (with Ohio Adm.Code 3701-

53-01 as required by Ohio Adm.Code 3701-53-04) Mr. Turnau answered in the 

affirmative. When asked if the laboratory had completed a national proficiency testing 

program, Mr. Turnau confirmed that it had completed the required testing and met all the 

applicable requirements for testing (Ohio Adm.Code 3701-53-06 and Ohio Adm.Code 

3701-53-09). Mr. Turnau confirmed that he has a laboratory director’s permit and that it 

was valid at the time the test was completed. (Ohio Adm.Code 3701-53-07 and Ohio 

Adm.Code 3701-53-09). 

{¶20} Appellant’s argument is more focused upon the quality of the evidence, not 

the absence of evidence. Appellant argues that the testimony of Mr. Turnau was 

insufficient because he did not present documentation to support his assertions, because 
Delaware County, Case No. 17 CAA 08 0057 8 

he was not the keeper of records and because he did not personally review the records. 

Appellant cites to our holdings in State v. Schlupp, 5th Dist. Coshocton No. 2012 CA 

0007, 2012-Ohio-6072, and State v. Troyer, 5th Dist. Stark No. 2013CA00038, 2013-

Ohio-3697 in support of his argument. Those cases are inapposite. In Schlupp we found 

that the state failed to present any testimony regarding the qualifications of the person 

conducting the test or the procedures followed by the lab to complete the test. Schlupp, 

supra at ¶ 68. In the case sub judice, Criminalist Turnau testified regarding his 

qualifications and the procedures followed by the lab. In Troyer, the facts revealed a 

violation of the relevant Ohio Administrative Code Sections regarding chain of custody 

and preservation of the blood sample. Further, the state was unable to provide any 

evidence that the lab completed a proficiency test or that the director reviewed, signed 

and dated the procedure manual to certify its compliance with the Rules. Troyer, supra 

at ¶ 22. Criminalist Turnau provided testimony that all of these requirements were 

satisfied. The evidence in Schlupp and Troyer reflected significant defects that are not 

present in the record before us. 

{¶21} The facts in this case are analogous to the facts in State v. Lentz, where we 

held that “[b]ecause of the very general nature of appellant's motion to suppress, specific 

evidence in response is not necessary, and general testimony of compliance is sufficient.” 

State v. Lentz, 5th Dist. Delaware No. 09CAC070065, 2010-Ohio-762, ¶ 16. We noted 

that: 

“*** record keeping, including maintenance and repair records, is important 

so that defendants may conduct complete and relevant discovery 

concerning the instrument that was used to conduct their test. However, 
Delaware County, Case No. 17 CAA 08 0057 9 

rigid compliance with the three-year specification in the ODH recordkeeping regulation is not required where the records themselves are not 

shown to be misleading, inaccurate, or incomplete. 

{¶22} Lentz, supra at ¶ 19 

{¶23} The appellant did not provide any evidence that would show that the records 

were misleading, inaccurate or incomplete. Appellant had the opportunity to obtain and 

review the records but elected not to do so. “Appellant's failure to attempt to discover 

factual support for his motion to suppress relating to the state's compliance [with the 

relevant administrative code sections] relieved the state of any burden to respond to 

appellant's allegations with greater specificity. State v. Hernandez-Rodriguez, 11th Dist. 

Portage No. 2006-P-0121, 2007-Ohio-5200, ¶ 53 

{¶24} The appellee presented sufficient evidence to address the general 

assertions of the appellant and establish substantial compliance with the regulations, 

triggering the presumption of admissibility and shifting the burden to appellant to rebut 

the presumption by a showing of prejudice. Lentz, supra at ¶ 20. Appellant has not offered 

any evidence of prejudice and, in fact, restricts his argument to his contention that the 

appellee has not substantially complied. 

 
Delaware County, Case No. 17 CAA 08 0057 10 

{¶25} For the forgoing reasons, the decision of the Delaware County Court of 

Common Pleas is affirmed. Costs assessed to appellant. 

By: Baldwin, J. 

John Wise, P.J. and 

Gwin, J. concur.