City of Columbus v. Chad E. Duling, 97-LW-1227

• Decision Date: 31 March 1997
• Docket Number: 96APC07-859,97-LW-1227
• Parties: City of Columbus, Plaintiff-Appellee, v. Chad E. Duling, Defendant-Appellant.
• Court: Ohio Court of Appeals

City of Columbus, Plaintiff-Appellee, v. Chad E. Duling, Defendant-Appellant.

No. 96APC07-859

97-LW-1227 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

March 31, 1997

Janet E. Jackson, City Attorney, Stephen L. McIntosh, City Prosecutor, and Brenda J. Keltner, for appellee.

R William Meeks, Samuel Shamansky and Stephen E. Palmer, for appellant.

DECISION

PETREE J.

This is an appeal by defendant, Chad E. Duling, from a judgment of the Franklin County Municipal Court finding him guilty of operating a motor vehicle with a prohibited concentration of alcohol in his breath, in violation of Columbus City Code ("C.C.") 2133.01(b)(2). On appeal, defendant sets forth a single assignment of error for this court's review:

"The trial court erred in precluding Appellant from attacking the general reliability of the breath testing machine, thereby violating his Sixth Amendment Rights of Confrontation and Compulsory Process, and his Fourteenth Amendment Rights to Present a Complete Defense and Due Process."

On November 2, 1995, Columbus Police Officer Jean Byrne cited defendant for failure to illuminate the rear registration plate of his vehicle, in violation of C.C. 2137.04(a); operating a motor vehicle while under the influence of alcohol or drugs of abuse, in violation of C.C. 2133.01(a); and operating a motor vehicle while having a concentration of .10 of one gram or more by weight of alcohol per 210 liters of breath, to wit: .144, in violation of C.C. 2133.01(b)(2).

At his arraignment, defendant entered pleas of not guilty to all charges. Defendant waived his right to a jury trial and tried his case to the court. The court accepted a stipulation agreed to by the parties and incorporated it into the record. The stipulation includes the following: defendant submitted to a chemical test of his breath on a properly calibrated BAC Verifier breath-testing machine; Columbus Police Officer Karen Hurles administered the test in accordance with the requirements of the Columbus City Code, R.C. 4511.191 and Ohio Adm.Code 3701-53-01 et seq.; on cross-examination of Officers Byrne and Hurles, defense counsel would have attacked the general scientific reliability of the BAC Verifier; during defendant's case-in-chief, defense counsel would have called Dr. Harry Shamansky, a recognized expert in the field of breath testing machines and their scientific reliability, for the purpose of attacking the design defects of the BAC Verifier; Dr Shamansky would have concluded that even if functioning according to its design, the BAC Verifier is scientifically questionable and can provide inaccurate test results; the trial court would have precluded the cross-examination testimony of Officers Byrne and Hurles and the expert testimony of Dr. Shamansky regarding the general scientific reliability of the BAC Verifier pursuant to State v Vega (1984), 12 Ohio St.3d 185; based on the trial court's exclusion of the cross-examination testimony of Officers Byrne and Hurles and the direct testimony of Dr. Shamansky, counsel for defendant would have made a proffer setting forth several grounds upon which the trial court's reliance on Vega violated defendant's rights under the United States and Ohio Constitutions, including: 1) the Sixth Amendment right of confrontation and compulsory process, 2) the Fourth Amendment right to present a complete defense, and 3) the Due Process Clause of the Fourteenth Amendment.

Over the timely objections and proffer of defense counsel, the trial court precluded defendant's cross-examination of the police officers and the proposed testimony of Dr Shamansky based on the Ohio Supreme Court's holding in Vega, supra, as the matters raised relate to the general scientific reliability of the BAC Verifier. As a result, the court found defendant guilty of violating C.C. 2133.01(b)(2) and sentenced defendant to serve one hundred eighty days in the Franklin County Correctional Center, with one hundred seventy-one days suspended on condition of two years probation. In addition, the court imposed a fine of...