State v. Ulrich, WD-83-42

• Decision Date: 13 January 1984
• Docket Number: No. WD-83-42,WD-83-42
• Citation: 17 Ohio App.3d 182,478 N.E.2d 812
• Parties: , 17 O.B.R. 372 The STATE of Ohio, Appellant, v. ULRICH, Appellee.
• Court: Ohio Court of Appeals

Page 182

17 Ohio App.3d 182

478 N.E.2d 812, 17 O.B.R. 372

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

No. WD-83-42.

Court of Appeals of Ohio, Sixth District, Wood County.

Jan. 13, 1984.

Syllabus by the Court

1. The offense defined in R.C. 4511.19(A)(3), that no person shall operate a vehicle within the state with a concentration of .10 grams or more by weight of alcohol per two hundred ten liters of breath, is complete upon operating a vehicle within the state with the requisite prohibited alcohol concentration.

2. R.C. 4511.19(A)(3) does not presume, but rather defines, what specific conduct is prohibited.

3. Only two elements need be proved for the state to prevail in a prosecution of an alleged violation of R.C. 4511.19(A)(3); (a) operation of a vehicle within the state, and (b) at the time of the alleged offense, that the alleged offender possess the prohibited alcohol concentration level.

4. The legislature has not made the result of the intoxilyzer test an element of the offense.

5. The intoxilyzer test result is an element of proof which should be given great weight.

6. It is clear from the plain and unambiguous language of R.C. 4511.19(B) that the level of alcohol concentration in one's breath at the time of the alleged offense is shown by chemical analysis of a breath sample taken within two hours of the time of the alleged violation.

7. The gravamen of R.C. 4511.19(A)(3) is the operation of a vehicle within this state after ingestion of a sufficient amount of alcohol to produce an intoxilyzer test result which evidences an alcohol concentration level proscribed by R.C. 4511.19(A) within two hours of the time that the alleged violation occurred.

8. R.C. 4511.19(B) is a legislative determination that a breath sample which is withdrawn within two hours of the alleged offense will accurately reflect the alleged offender's alcohol content, by weight, in the withdrawn sample at the time of the alleged offense.

9. Absent clear statutory language requiring the need for expert testimony, no expert testimony is needed to correlate an intoxilyzer test result to the time of the offense.

10. Once the proper foundation evidence is introduced regarding an intoxilizer test result, and the test result is then offered as evidence of the alleged offender's breath alcohol content at the time of the alleged violation, said test result shall be admitted.

William F. Hayes, Pros. Atty., for appellant.

Thomas L. Bischoff, Napoleon, for appellee.

RESNICK, Judge.

Michael Ulrich, appellee herein, was charged with violating R.C. 4511.19(A)(1), 4511.19(A)(3), and 4511.33 in Wood County, Ohio, on April 2, 1983. Subsequently, the appellant, state of Ohio, dismissed the charges concerning R.C. 4511.33 (failure to drive within marked lanes) and R.C. 4511.19(A)(1) (operating a vehicle within the state while under the influence of alcohol). Appellee's alleged violation of R.C. 4511.19(A)(3) (operating a motor vehicle with a concentration of .10 grams or more by weight of alcohol per two hundred ten liters of breath) proceeded to trial in the Perrysburg Municipal Court.

A trial to the court was conducted on May 31, 1983, at which time the arresting officer testified, inter alia, as to his qualifications in operating the intoxilyzer, the method or procedure which was followed in administering the intoxilyzer test, and that the intoxilyzer test was performed within two hours of the time from which appellee's alleged violation occurred. ¹ Importantly, however, is the fact that the time of appellee's alleged violation of R.C. 4511.19(A)(3) was 3:03 a.m., and the record indicates that the intoxilyzer test was administered to appellee at 3:40 a.m., some thirty-seven minutes after appellee was charged with the alleged offense. The intoxilyzer test result, which was .162 percent, was properly admitted into evidence at the trial.

At the conclusion of the state's case, appellee moved for dismissal of the charge which alleged that appellee had violated R.C. 4511.19(A)(3). The trial court granted appellee's motion to dismiss and, in its decision of May 31, 1983, found appellee not guilty of violating R.C. 4511.19(A)(3). In so deciding, the trial court held that the state must produce "some type of expert testimony that will relate a test result back to the time of driving." ²

From the trial court's May 31st judgment entry, the state filed a notice of appeal and a motion for leave to appeal on June 29, 1983. This court, on August 8, 1983, issued its opinion wherein it denied the state an appeal as of right, but granted the state leave to appeal the narrow question of whether the state, to sustain its burden of proof in a prosecution for an alleged violation of R.C. 4511.19(A)(3), is required to produce expert testimony in order to correlate the result of the intoxilyzer test to the time of driving. State v. Ulrich (1983), 17 Ohio App.3d 179. The case is now before this court on the merits.

In the instant appeal, we are called upon to interpret certain language of R.C. 4511.19(A) and (B), effective March 16, 1983. R.C. 4511.19(A)³ states that:

"No person shall operate any vehicle, streetcar, or trackless trolley within this state if any of the following apply:

"(1) The person is under the influence of alcohol or any drug of abuse, or the combined influence of alcohol and any drug of abuse;

"(2) The person has a concentration of ten-hundredths of one per cent or more by weight of alcohol in his blood;

"(3) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath;

"(4) The person has a concentration of fourteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his urine."

In relevant part, R.C. 4511.19(B) provides that:

"In any criminal prosecution for a violation of this section or of an ordinance of any municipal corporation relating to operating a motor vehicle while under the influence of alcohol, the court may admit evidence on the concentration of alcohol in the defendant's blood, breath, or urine at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance withdrawn within two hours of the time of such alleged violation."

In matters of statutory interpretation, we recognize that it is well-settled in this state that "when comparable legislation has been construed in other jurisdictions prior to the enactment of a similar Ohio statute, the interpretation given the law in other jurisdictions is to be given great weight in construing the Ohio statute." Koster v. Boudreaux (1982), 11 Ohio App.3d 1, 6-7, 463 N.E.2d 39. See, also, Schneider v. Laffoon (1965), 4 Ohio St.2d 89, 96, 212 N.E.2d 801, 33 O.O.2d 468; In-Flight Devices Corp. v. Van Dusen Air, Inc. (C.A.6, 1972), 466 F.2d 220, 225, 65 O.O.2d 279. Further, we note that the legislature is "presumed to be aware of, and to legislate in light of, the construction given to an area of law by other state courts." Koster, supra; In re Thomas (N.D.Ohio 1981), 14 Bankr. 423, 427; see In-Flight Devices, supra, at 225.

Undoubtedly, "[t]he purpose of the General Assembly is a dominant fact in determining the meaning of any statutory legislation." State v. Glass (1971), 27 Ohio App.2d 214, 218, 273 N.E.2d 893, 56 O.O.2d 391. Although criminal statutes must be construed strictly against the state, State v. Dickinson (1971), 28 Ohio St.2d 65, 56, 275 N.E.2d 599, 57 O.O.2d 255; Mentor v. Giordano (1967), 9 Ohio St.2d 140, 224 N.E.2d 343, 38 O.O.2d 366, paragraph two of syllabus; R.C. 2901.04(A), it is equally true that statutes must be read in a manner which effectuates, rather than frustrates, the major purpose of the legislative draftsmen. State v. Glass, supra, 27 Ohio App.2d at 219, 273 N.E.2d 599, see Giordano, supra, paragraph three of syllabus. It has been said several times that the primary purpose of statutes which make operating a vehicle while influenced by alcohol an offense is to protect the innocent users of streets and highways from the hazard of vehicles under the management of those irresponsible persons who insist on driving while so influenced. See Giordano, supra, at 145, 224 N.E.2d 343; Barber v. Curry (1974), 40 Ohio App.2d 346, 348, 319 N.E.2d 367, 69 O.O.2d 312; State v. Kivell (1983), 11 Ohio App.3d 12, 13, 463 N.E.2d 52. In light of the above-stated guidelines for statutory interpretation and the stated purpose of such legislation, we now proceed with our analysis of the state's sole assignment of error, which is:

"When dealing with the charge of 4511.19(A)(3) O.R.C., it is prejudicial error for the court to require expert testimony to prove a prima facie case."

The facts of the instant case indicate that appellee moved for dismissal of the charge regarding the alleged violation of R.C. 4511.19(A)(3) after the state presented its case and the trial court, pursuant to appellee's request, took judicial notice of "Ohio Department of Health Official Instruction No. 008." Keeping in mind that the authority for appellee's motion is contained within Crim.R. 29(A), ⁴ it is well-settled that a judgment of acquittal shall not be entered at the close of the state's case "if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184, 9 O.O.3d 401, syllabus. See, also, State v. Thomas (1980), 61 Ohio St.2d 223, 232-233, 400 N.E.2d 401, 15 O.O.3d 234; State v. Adams (1982), 3 Ohio App.3d 50, 56; State v. Bronaugh (1980), 69 Ohio App.2d 24, 429 N.E.2d 1084, 23 O.O.3d 23. Although the present case was tried to the court rather than to a jury, a motion for acquittal at the close of the state's case "performs the same functions and is governed by the same considerations as a similar motion at a trial by jury."...