City of Columbus v. Marks
| Decision Date | 19 February 1963 |
| Citation | 25 O.O.2d 228,118 Ohio App. 359,194 N.E.2d 791 |
| Parties | , 25 O.O.2d 228 CITY OF COLUMBUS, Appellee, v. MARKS, Appellant. |
| Court | Ohio Court of Appeals |
Wonnell & Zingarelli, Columbus, for appellant.
Russell Leach, City Atty., Bernard T. Chupka, Gordon L. Sroufe and William B. Shimp, Columbus, for appellee.
This is an appeal from a conviction in the Municipal Court of Columbus, on the charge of operating a vehicle while under the influence of alcohol. The single assignment of error is the admission of expert testimony based on a blood test of the defendant, appellant herein.
After his arrest the defendant was taken to the police station. With his consent, and at his request, he was given a blood test. This was taken in a small room used for this purpose at police headquarters. The arresting officer testified that he observed the specimen being taken. He did not recall the name of the person taking it but referred to him as an 'intern.' The specimen was placed in a glass vial which was empty at the time. He did not recall where the vial had been kept. He stated that before inserting the needle the person taking the specimen cleansed the defendant's arm 'with alcohol or iodine or whatever disinfectant they use.' After the taking of the specimen, he sealed and labeled it, took it to the laboratory and placed it in the refrigerator. He did not recall where the defendant was at the time the vial was sealed and labeled
The police chemist testified that the person on duty at that time, and whose name appeared on the specimen vial, was an 'extern' by the name of Michael. He stated that as part of his duties, he, the chemist, cleansed and sterilized the vials, that he took these to the room in a sealed bag, that he did not deliver them to any particular person, and that he did not know who had charge of the room. He had no knowledge with respect to the particular vial used for the defendant's specimen prior to receiving it for testing.
The defendant objected to the admission of the expert testimony of the chemist with respect to the testing of the blood specimen and the test results. The grounds were (1) the specimen vial was not sealed in the presence of the defendant and (2) the identity of the person who took the specimen was not known.
Whether the defendant was present at the time of the sealing and labeling goes to the weight of the evidence. It is not part of the foundation for its admission
The defendant relies primarily on the second ground of the objection. The person who took the specimen was never called as a witness by the prosecution The defendant argues that he was denied the right to cross-examine that person as to the manner of taking the specimen, the condition of the equipment, his competency, etc. Counsel contend that this was a substitution of the officer's testimony for that of an 'essential' witness and, therefore, a break in the 'chain of evidence.'
Defendant was not denied the right to cross-examine any witness presented. The witness here was never called, nor is there any break in the chain of evidence establishing the identification of the specimen tested. The basis of defendant's contention is a proposition that the person taking the specimen was essential to the admission of the expert testimony, and that we should hold him to be essential because to do otherwise is to deny the defendant an opportunity to cross-examine. As we understand it, the defendant is not arguing that this witness was essential in any sense of the proof of facts under evidence law, but that we should so hold as a matter of constitutional right in order to afford the defendant a fair means of meeting this scientific evidence. In this respect the argument is somewhat analogous to the 'exclusionary' rule under which admissibility is denied to competent, relevant evidence which was illegally obtained. See Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
In our opinion the requirement that the prosecution lay a proper foundation for the admission of expert testimony on blood tests affords an adequate protection for the defendant's interest. There must, of course, be a foundation showing a complete chain of evidence establishing the identification of the specimen. However, the admissibility of data from scientific tests also requdires reasonable proof of three other recognized aspects...
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State v. Mays
...of whether there exists a break in the chain of custody is a determination left up to the trier of fact. Columbus v. Marks (1963), 118 Ohio App. 359, 25 O.O.2d 228, 194 N.E.2d 791. Any breaks in the chain of custody go to the weight afforded to the evidence, not to its admissibility. There ......
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State Of Ohio v. Lenoir
...The issue of whether there exists a break in the chain of custody is a determination left up to the Trier of fact. Columbus v. Marks (1963), 118 Ohio App. 359, 194 N.E.2d 791. Any breaks in the chain of custody go to the weight afforded to the evidence, not to its admissibility. State v. Bl......
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...The issue of whether there exists a break in the chain of custody is a determination left up to the Trier of fact. Columbus v. Marks (1963), 118 Ohio App. 359, 194 N.E.2d 791. Any breaks in the chain of custody go to the weight afforded to the evidence, not to its admissibility. State v. Bl......
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