State v. McDonald
| Decision Date | 28 December 1970 |
| Citation | 25 Ohio App.2d 6,265 N.E.2d 793 |
| Parties | , 54 O.O.2d 6 The STATE of Ohio, Appellee, v. McDONALD, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. R.C. 4511.19, relating to the offense of operating a motor vehicle while under the influence of alcohol, mandates that persons charged with a violation of such statute be advised that they have the right to have additional physical tests taken by a physician, qualified technician, chemist, registered nurse, or other qualified person of his own choosing.
2. The admissibility of evidence concerning tests as given by the arresting authorities is dependent upon the person arrested being given the required advice of the right to have additional tests taken.
3. Once advised of the opportunity to obtain an additional chemical test as provided in R.C. 4511.19(B), the failure or inability to obtain any such additional tests does not preclude the admission of evidence concerning tests as given by the arresting authorities.
4. The right to be advised of the opportunity for additional tests is a statutory right and not a constitutional guaranty, and any attendant right to exclude evidence based upon a claim of improper procedure may be waived by failure to enter a timely objection to the use of such evidence.
T. C. Hughes, City Prosecutor, for appellee.
B. N. Murray, Grahanna, for appellant.
This matter involves the appeal of a conviction of the appellant in the Municipal Court of Newark, for a violation of R.C. 4511.19, which section sets forth the offense of operating a motor vehicle while under the influence of alcohol.
The defendant, appellant herein, was apprehended by a State Highway Patrolman on State Route 40, after such officer had observed the appellant traveling at a quoted rate of speed of 65 miles per hour in a 50 miles per hour zone.
The arresting officer, Patrolman John O'Connor, testified that after pursuing the defendant, the latter stopped his car, alighted therefrom, and displayed his driver license upon request; he also stated that he had observed the appellant's speech, appearance, and manner of movement and perambulation, and that based upon such observations, he concluded that the defendant was under the unfluence of alcohol.
Patrolman O'Connor testified that subsequently he took the defendant to the Hebron Highway Patrol Post for the purpose of taking a Breathalyzer Test.
Further, Patrolman O'Connor testified that he had read the prescribed form relating to the consequences of a refusal to submit to a chemical test to the appellant as required by R.C. 4511.191(C).
Officer O'Connor testified that the appellant had not been advised of his right to have a physician or qualified technician, chemist, registered nurse, or other qualified person of the appellant's choosing to administer a chemical test in addition to that as administered by the Highway Patrol.
In fact, Officer O'Connor testified that he was not aware that such requirement was provided for by Ohio law.
The record of the case further shows that Sgt. Richard E. Mortine of the Ohio State Highway Patrol was a duly qualified and licensed senior operator for the Breathalyzer testing equipment, and as such operator, had given a breath alcohol test to the defendant.
There was testimony by Sgt. Mortine that such test resulted in a finding of .15 alcohol present.
Sgt. Mortine also testified that based upon his personal observations, he had concluded that the defendant was under the influence of alcohol. Such testimony was given without objection.
The state thereupon moved the court for the admission of the state's exhibits, including the refusal statement form the Breathalyzer check list, and the Breathalyzer test result card.
The court, after asking whether there was any objection on the part of the defendant and there being none, admitted such exhibits into evidence.
At the conclusion of the state's case, counsel for the defendant moved the court for a dismissal on a number of grounds, among which was the fact that the defendant had not, pursuant to R.C. 4511.19, been advised of his right to have a separate test given by his own physician or nurse, or other qualified technician.
The trial court overruled such motion on the basis that such Revised Code section provides that '* * * if the person is not advised, or if there is not the ability to obtain this test, that this does not preclude the admission of the state's test. * * *'
At the conclusion of all of the evidence, the defendant's counsel renewed his motion as made at the time the state had rested.
The court overruled the motion and thereupon found the defendant guilty as charged.
The defendant appeals citing the following assignments of error:
'1. The lower court erred in overruling the motion of the defendant at the conclusion of the testimony of the prosecution.
'Also, the court erred in overruling the motion of the defendant at the conclusion of the entire testimony.
'2. The court erred in finding the defendant guilty beyond reasonable doubt:
'(a) When the only test applied was a Breathalizer Test and none other.
'(b) When the evidence showed that the only act of the defendant while driving his car, as detected by the officer, was that he was exceeding the speed limit.
'3. That the court committed error in admitting the Breathalizer Test made of the defendant when the officer not only failed to enlighten the defendant of his right to have another test made by a qualified physician, technician, chemist or registered nurse, but upon the officer's own testimony that he did not know, at the time, that he was to advise the defendant of such right as prescribed in the final paragraph of Section 4511.19 R.C.'
In determining the validity of assignments of error number one and number three as they relate to the question of the absence of advice concerning an additional test, three questions must be answered.
We must first determine whether the admissibility of evidence concerning the chemical tests to be submitted in a hearing of a violation of R.C. 4511.19 is conditional upon the giving of the advice set forth therein.
Secondly, we must determine whether any objection to the admissibility of such evidence may be effectively waived by the party against whom it is to be used, and thirdly, if such be a waivable right, whether on the facts of the instant case, such right has in fact been waived.
The pertinent parts of R.C. 4511.19, applicable to this matter are as follows:
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