City of Columbus v. Day

• Decision Date: 11 June 1985
• Docket Number: No. 84AP-1128,84AP-1128
• Parties: , 24 O.B.R. 263 CITY OF COLUMBUS, Appellee, v. DAY, Appellant.
• Court: Ohio Court of Appeals

Page 173

24 Ohio App.3d 173

493 N.E.2d 1002, 24 O.B.R. 263

CITY OF COLUMBUS, Appellee, v. DAY, Appellant.

No. 84AP-1128.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 11, 1985.

Syllabus by the Court

In a prosecution brought against a defendant for a per se violation of R.C. 4511.19, e.g., operating a vehicle while having a prohibited concentration of alcohol on his breath, the defendant may not challenge the accuracy of a legislatively determined test procedure as a valid scientific means of determining blood-alcohol levels; however, he may challenge the accuracy of his specific test result through the use of expert testimony, to show that he could not have produced the test result claimed by the prosecution under those circumstances.

Gregory S. Lashutka, City Atty., Ronald J. O'Brien, City Pros., and David E. Tingley, Columbus, for appellee.

Gerald G. Simmons and Dennis G. Day, Columbus, pro se.

NORRIS, Judge.

Defendant appeals his conviction for operating a motor vehicle while having a prohibited concentration of alcohol in his breath. The concentration had been measured by an intoxilyzer machine.

During the course of his trial on this per se violation, defendant sought to introduce the testimony of a chemist concerning intoxilyzers, and to have the expert give his opinion, in response to a hypothetical question, that defendant could not have tested as high as was indicated by the city, had the intoxilyzer been operating properly. At the urging of the city, the trial court excluded the proffered testimony, concluding that it challenged the validity of a testing procedure which had been approved by the Ohio Director of Health.

Defendant raises one assignment of error:

"The trial court erred in excluding the expert testimony proferred [sic ] by defendant that, given what defendant had had to drink over the relevant time period, the defendant should have had an intoxilyzer test result of less than .10."

An accused may not use expert testimony to attack the general reliability of intoxilyzers as valid, reliable breath-testing machines, in view of the fact that the General Assembly has legislatively provided for the admission of such tests if analyzed in accordance with methods approved by the Director of Health. State v. Vega (1984), 12 Ohio St.3d 185, 465 N.E.2d 1303. Although he may not challenge the general accuracy of the legislatively determined test procedure as a valid scientific means of determining blood-alcohol levels, he may challenge the accuracy of his specific test result. State v. Tanner (1984), 15 Ohio St.3d 1, at 6, 472 N.E.2d 689; Columbus v. Sullivan (1982), 4 Ohio App.3d 7, at 10, 446 N.E.2d 485; State v. Grimes (Dec. 30, 1980), Franklin App. No. 80AP-651, unreported, at page 6.

The import of these cases is that, while the efficiency of a testing process which has been approved by the Director of Health is not subject to challenge, since it is presumed accurate when the equipment is in working order and used properly, the accuracy of a specific test result is subject to challenge in the sense that an accused may endeavor to show something went wrong with his test and that, as a consequence, the result was at variance with what the approved testing process should have produced.

Under the circumstances of this case, then, defendant could utilize evidence which tended to show that this particular machine did not function properly in performing this test and, thus, produced an inaccurate test result. What was not permitted was evidence which tended to prove that this machine, in common with others of its type, did not have the capacity to produce an accurate test result on this, or any other, occasion.

The most direct method of...