State v. Sickles
| Decision Date | 28 December 1970 |
| Citation | 265 N.E.2d 787,25 Ohio App.2d 1 |
| Parties | , 54 O.O.2d 3 The STATE of Ohio, Appellee. v. SICKLES, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
Prerequisites as to the admission of evidence relating to the results of a Breathalyzer test in the trial of one accused of the offense of operating a motor vehicle while under the influence of intoxicating liquor are established from the specific wording found in R.C. § 4511.19 and Mentor v. Giordano (1967), 9 Ohio St.2d 140, 224 N.E.2d 343. The prerequisites are that there be:
1. Evidence that establishes that the bodily substance, the breath, was withdrawn within two hours of the time of the alleged violation.
2. Evidence that establishes that the Breathalyzer equipment was in proper working order.
3. Evidence that the operator of the Breathalyzer equipment had the qualifications to conduct the test.
4. Evidence that such bodily substance, the breath, had been analyzed in accordance with methods approved by the Director of Health.
Thomas C. Hughes, City Prosecutor, for appellee.
Virginia Weiss, Newark, for appellant.
This matter involves an appeal of a conviction of the defendant, appellant herein, in the Municipal Court of Newark, Ohio, for a violation of R.C. § 4511.19, pertaining to the operation of a motor vehicle while under the influence of alcohol.
The defendant was arrested on April 17, 1969, while operating his motor vehicle on State Routes 37 and 161, and after being involved in an automobile accident.
The arresting officer, Cpl. Robert Warman of the Ohio State Highway Patrol, took the defendant to the patrol headquarters near Newark, Ohio, where the officer proceeded to administer various tests for a determination of the degree of inebriation of the defendant.
Cpl. Warman, after reading the necessary notification of refusal to submit to a chemical test by the appellant, and with the agreement of the latter, administered what is referred to as the Breathalyzer Test.
Cpl. Warman testified that the results of the Breathalyzer test was .18 alcohol content, and that an additional series of tests had been given to the appellant, including a balance test, straight line test, nose touching test, and coin pick up test.
Officer Warman testified that after conducting all of such tests upon the defendant that he concluded that he was under the influence of alcohol.
The jury returned a verdict of guilty, upon which verdict the court entered a judgment, and the defendant now appeals such verdict and judgment stating that such verdict and judgment was erroneous and contrary to law for the following reason:
More particularly, the appellant claims that error had been committed when the results of such Breathalyzer Test were permitted in evidence without being properly qualified by the four basic requirements as set forth in State v. Baker (1960), 56 Wash.2d 846, 355 P.2d 806.
The Supreme Court of Washington held that it was necessary to establish certain conditions precedent in order to qualify evidence relating to a Breathalyzer test results as being competent.
Basically, such court held that before the results of a Breathalyzer test are admissible in evidence, the state must produce prima facie evidence that:
1. The machine was properly checked, and was in proper working order at the time of conducting the test.
2. The chemicals employed were of the correct kind and compounded in the proper proportions.
3. The subject had nothing in his mouth at the time of the test, and had taken no food or drink within 15 minutes prior to taking the test.
4. The test was given by a qualified operator in the proper manner.
While it may well be desirable for all of such prerequisites to be applied as conditions prerequisite to the introduction of Breathalyzer test results as evidence, we are not constrained to mandate that all of such be required as a matter of law in Ohio.
R.C. § 4511.19 sets forth certain specific requirements for the testing of the concentration of alcohol in the defendant's system at the time of the alleged violation.
First, such section states that the court may only admit evidence of a chemical analysis of the defendant's blood, urine, breath, or other bodily substance withdrawn within two hours of the time of such alleged violation.
Secondly, this section provides that when a person submits to a blood test under R.C. § 4511.191, only a physician or a registered nurse shall withdraw blood for purposes of the test.
Thirdly, such section provides that such bodily substance shall be analyzed in accordance with methods approved by the Director of Health.
Fourthly, R.C. § 4511.19 requires that the bodily substance shall be analyzed by an individual possessing a valid permit issued by the Director of Health pursuant to R.C. § 3701.143.
Prior to the amendments to R.C. § 4511.19, effective January 1, 1968, the Ohio Supreme Court had, in Mentor v. Giordano, 9 Ohio St.2d 140, 224 N.E.2d 343, established the necessary requirements for the admissibility of the results of Breathalyzer tests.
In the sixth paragraph of the syllabus of the court it was held:
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