State v. Myers

• Citation: 271 N.E.2d 245,55 O.O.2d 447,26 Ohio St.2d 190
• Decision Date: 23 June 1971
• Docket Number: No. 70-352,70-352
• Parties: , 55 O.O.2d 447 The STATE of Ohio, Appellant, v. MYERS, Appellee.
• Court: United States State Supreme Court of Ohio

Page 190

26 Ohio St.2d 190

271 N.E.2d 245, 55 O.O.2d 447

The STATE of Ohio, Appellant, v. MYERS, Appellee.

No. 70-352.

Supreme Court of Ohio.

June 23, 1971.

Syllabus by the Court

1. The failure to advise a person chemically tested for determination of the concentration of alcohol in his blood that he 'may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a police officer,' as required by R.C. § 4511.19(B), does not render the results of a police administered test inadmissible in evidence at trial.

2. In a trial of a person for the offense of operating a motor vehicle while under the influence of alcohol, the presumption provided by R.C. § 4511.19(B) may be included in the court's instructions to the jury and used by them in arriving at their decision, even though the prosecution introduces evidence of the defendant's physical appearance, his walk, his manner of speaking, the smell of his breath, and opinion evidence that defendant was under the influence of alcohol. (Ayers v. Woodard, 166 Ohio St. 138, 140 N.E.2d 401, distinguished.)

3. In a trial of a person for the offense of operating a motor vehicle while under the influence of alcohol where evidence of the results of a chemical test is introduced, the trier of the facts must decide from the evidence produced whether at the time of testing there was a concentration of fifteen hundredths of one per cent or more by weight of alcohol in defendant's blood.

4. In a trial of a person for the offense of operating a motor vehicle while under the influence of alcohol, the jury must be charged that the presumption provided in R.C. § 4511.19(B) is not conclusive but may be rebutted.

5. Reversible error arises in the trial of a person for the offense of operating a motor vehicle while under the influence of alcohol, where a prosecutor argues to the jury that 'under the law of the state of Ohio, a subject who tests fifteen hundredths or above is presumed, by law, to be under the influence of alcohol,' which presumption he states the jurors are required by their oath to apply, and where, upon objection by defense counsel, the trial court states to the jury that the prosecutor had not misstated anything and thereafter fails to instruct the jury that the presumption is rebuttable.

6. A statement in a court's general charge that a presumption may be controverted by other evidence, direct or circumstantial, is insufficient to describe the rebuttability of a presumption.

7. Under the authority of R.C. § 1901.34, a director of law of a municipality who prosecutes a case in a Municipal Court for violation of a state statute, which case is then appealed to a Court of Appeals, may institute an appeal from a judgment of the Court of Appeals to the Supreme Court.

John Clement Myers, Jr., appellee herein, while driving his automobile in Ashland, Ohio, on the evening of December 11, 1968, was stopped by an officer of the Ohio State Highway Patrol who had observed the automobile being operated left of the center of the roadway. When stopped, appellee was holding a glass containing an alcoholic beverage in his hand. He was arrested and charged with operating a motor vehicle while under the influence of alcohol, in violation of R.C. 4511.19.

The arresting officer, Iley, stated at trial that at the time of the arrest appellee's speech was slurred, his eyes were bloodshot and he had a strong odor of alcohol about his person.

Appellee's attorney met him at the police station, where appellee was given certain coordination tests. There, two other police officers, Kohn and Clark, observed Myers. Officers Kohn and Iley opined at trial that appellee was under the influence of alcohol at the time in question.

Myers was then given a Breathalizer test by Officer Kohn, a qualified operator of the device, which resulted in a finding of a concentration of .15% alcohol by weight in appellee's blood. The results of this test and a videotape of the entire proceedings at the police station were admitted in evidence and shown to the jury. Appellee's pre-trial motion for a viewing of the tape had been overruled, as was a later motion to suppress the videotape and chemical test results.

The videotape showed that appellee's attorney was with him all the time at the police station, and that the police gave appellee the notice required by the 'implied consent' statute (R.C. 4511.191(C). ¹ The police, however, did not advise appellee or his attorney that he (appellee) had the right to have an additional chemical test administered by a qualified person of his own choosing. R.C. 4511.19(B). ²

Myers testified that he had only consumed one, or at the most two, 'scotch and soda' drinks, and had not taken any of the drink that was in his hand at the time of the arrest. He also stated that previous to his arrest he had taken medication, which medication his doctor, in testifying, said may have caused a decreased mental alertness.

At trial, during the prosecutor's closing argument, the following statements were made in the presence of the jury:

'Mr. Fridline: Did you hear him raise any objections? No. Your conclusion must be that the test was accurately administered and the result is accurate. The result in this case is fifteen hundredths of one per cent blood alcohol. Under the law of the state of Ohio, a subject who tests fifteen hundredths or above is presumed, by law, to be under the influence of alcohol. * * *

'I will remind you, again, under your oath as jurors, you have agreed to apply the law in this case to the facts and to accept the law and this is the law.

'Mr. Nordstrom: If the Court please, he is making a misstatement. This is one of the pieces of the evidence that can be considered by the jury and he is misstating this, that they have to agree with this by law, and that isn't what the statute is.

'He is giving them a misapprehension of the law, and I'm asking for a mistrial.

'Mr. Fridline: I'm explaining the law, what the law has attached.

'Mr. Nordstrom: He doesn't-

'The Court: Mr. Fridline, I will give them an instruction to the law. There is a presumption, and in due course I will give them to them, and it will be better for you not to explain to them, unless you explain it to the entirety.

'Mr. Fridline: You Honor, have I misstated anything?

'The Court: I don't think you have misstated anything.

'Mr. Nordstrom: You have given only part of it, and by that you have misstated it.

'The Court: The objection is overruled.

'Mr. Fridline: To clarify this, this presumption is not a presumption of guilt. It is a presumption of being under the influence of alcohol.

'We still have to prove that the defendant operated a motor vehicle in the city of Ashland, county of Ashland, state of Ohio. It is not a presumption of guilt. It is a presumption on the only real issue pur before you, whether or not he was under the influence of alcohol; and I'm not misstating this.

'This is a presumption which you must apply under your oath as a juror. Besides this presumption, however, the evidence is ample.'

The trial court charged concerning a presumption as follows:

'A presumption is a deduction which the law expressly directs to be made from particular facts. Unless declared by law to be conclusive, it may be controverted by other evidence, direct or circumstantial; but unless so controverted, the jury is bound to find in accordance with the presumption.'

The court charged further:

'If there was at that time a concentration of fifteen hundredths of one per cent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of alcohol.'

The jury returned a verdict of guilty, and appellee's motion for a new trial was overruled.

Upon appeal, the Court of Appeals reversed he judgment of the Municipal Court, holding that the trial court erred in admitting evidence of the Breathalizer test result because notice was not given appellee that he could have had another test administered by a qualified person of his own choosing. The Court of Appeals also held that the prosecutor's statements, expressly approved by the trial court, erroneously led the jury to believe that the test result was conclusive proof of the amount of alcohol in appellee's blood.

This cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Michael R. McKinley, Director of Law, O. Joseph Murray, Pros. Atty., and Jacob M. Fridline, Ashland, for appellee.

Lutz & Oxley, Howard S. Lutz, and Kenneth J. Nordstrom, Ashland, for appellant.

DUNCAN, Justice.

This appeal calls upon us to decide, first, whether, under R.C. 4511.19(B), the failure to advise a person tested for determination of the concentration of alcohol in the blood that he 'may have a physician, or a qualified technician, chemist, registered nurse, or other qualified a person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a police officer * * *' requires exclusion from evidence of the police-administered test results. Other courts have answered affirmatively. See Couch v. Rice (1970), 23 Ohio App.2d 160, 261 N.E.2d 187; Bores v. Rice (1969), 17 Ohio Misc. 163, 244 N.E.2d 808.

It should be noted that here we are not confronted by any question of constitutional magnitude which might place this issue within the purview of the exclusionary rule first enunciated by the United States Supreme Court. See Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1981, and generally, State v. Cowans (1967), 10 Ohio St.2d 96, 227 N.E.2d 201.

The United States Supreme Court has held that where a defendant refused to consent to a taking of his blood sample for chemical analysis, a blood sample taken over his objection and without his consent was admissible in...