State v. Vega

• Decision Date: 25 July 1984
• Docket Number: No. 83-1933,83-1933
• Citation: 12 OBR 251,465 N.E.2d 1303,12 Ohio St.3d 185
• Parties: , 12 O.B.R. 251 The STATE of Ohio, Appellant, v. VEGA, Appellee.
• Court: Ohio Supreme Court

Page 185

12 Ohio St.3d 185

465 N.E.2d 1303, 12 O.B.R. 251

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

No. 83-1933.

Supreme Court of Ohio.

July 25, 1984.

Pete A. Vega, appellee, was charged on November 9, 1982 with operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19. An intoxilyzer test was administered; appellee tested at .17 of one percent of blood alcohol by weight. Appellee pleaded not guilty.

Prior to trial, on April 12, 1983, the state filed a motion in limine to exclude the testimony of appellee's proposed expert witness, Dr. Walter J. Frajola. The trial court delayed its ruling.

A jury trial was commenced in the Municipal Court of New Philadelphia, Ohio, on April 12, 1983. When appellee called Dr. Frajola as a witness, the trial judge did not permit him to testify. The court in its judgment entry found that " * * * Dr. Frajola had no personal knowledge of the particular intoxilyzer instrument utilized in the administration of the breath test to * * * [appellee] * * * and, consequently, Dr. Frajola's testimony would have been relating, generally, to the reliability of the intoxilyzer and as such must be excluded upon the authority of State v. Grimes * * * [ (Dec. 30, 1980), Franklin App. No. 80AP-651, unreported], which this court finds persuasive in its reasoning and the rule of law * * * [which] shall be applied in this jurisdiction." Appellee then proffered Dr. Frajola's testimony.

Appellee was subsequently convicted and sentenced accordingly. Appellee filed a notice of appeal on May 18, 1983.

In a split decision, the court reversed, holding that an accused may present expert testimony to attack the reliability of intoxilyzers in general. The court stated that " * * * R.C. 4511.19(B), while replacing the requirement of expert testimony by statutory presumption, does so only insofar as the state is concerned. * * * There is no prohibition (nor can there ever be constitutionally) against the presentation of expert medical testimony on the part of the accused to show the nonexistence of a nexus between the testing result and the ultimate physical condition of the accused." The court concluded, then, that "[t]o the extent that the appellant was prevented from going forward with his evidence on the element of whether or not he was under the influence of alcohol, the state was relieved of its constitutional duty to prove appellant guilty beyond a reasonable doubt on that element of the offense of operating a motor vehicle while under the influence of alcohol * * *."

In dissent, Judge Hoffman reasoned that inasmuch as the proffered testimony was general and speculative in nature and did not speak to the specific test of the specific accused at trial, the testimony was properly excluded because R.C. 4511.19 provides for the admission of breath tests if properly administered. He further stated that no constitutional right was destroyed as a result because the accused has no such right to introduce nonrelevant general testimony.

The court of appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Franklin County in State v. Grimes, supra, and the judgment of the Court of Appeals for Auglaize County in State v. Balderaz (May 25, 1983), No. 2-82-5, unreported, certified the record of the case to this court for review and final determination.

Stewart C. Piotter, Peninsula, for appellant.

Leslie R. Early, New Philadelphia, for appellee.

PER CURIAM.

The issue presented is whether an accused may 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 in R.C. 4511.19 if analyzed in accordance with methods approved by the Director of Health. This court, for the reasons that follow, reverses the decision of the court of appeals and holds that an accused is not denied his constitutional right to present a defense nor is the state relieved of its burden of proving guilt beyond a reasonable doubt where a trial judge does not permit expert testimony to attack the reliability of intoxilyzers in general.

The wide acceptance by courts of alcohol breath tests in "drunk driving" cases is well-documented. This court so acknowledged, stating in Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 123, 239 N.E.2d 40 , as follows: " * * * such tests are today generally recognized as being reasonably reliable on the issue of intoxication when conducted with proper equipment and by competent operators."

In recent years, the courts have been aided by the enactment of statutes dealing with this matter. In Ohio, the General Assembly has legislatively provided for the admission of various alcohol determinative tests in R.C 4511.19. ¹ This section provided in pertinent part that "[i]n any criminal prosecution for a violation of this section * * * the court may admit evidence on the concentration of alcohol in the defendant's blood at the time of the alleged violation as shown by chemical analysis of the defendant's * * * breath * * * withdrawn within two hours of the time of such alleged violation. * * * Such bodily substance shall be analyzed in accordance with methods approved by the director of health, by an individual possessing a valid permit issued by the director of health pursuant to R.C. 3701.143 of the Revised Code."

R.C. 3701.143 authorizes the Director of Health to determine suitable methods for breath alcohol analysis. By virtue of Ohio Adm.Code 3701-53-02(B)(2) the intoxilyzer has been approved as one of several breath testing instruments. ²

In State v. Myers (1971), 26 Ohio St.2d 190, 198-199, 271 N.E.2d 245 , this court examined the nature of the presumption established by R.C. 4511.19:

"In * * * [providing that a defendant will be presumed to be under the influence of alcohol if there is a concentration of fifteen hundredths or above of one percent or more by weight in his blood], the General Assembly has expressed its conviction that the relationship between the objective determination by chemical test of the percentage of alcohol by weight in the blood (.15% or more), and its effect on people, is so well scientifically established that it need not be demonstrated by evidence, and may take the place of evidence at trial. The purpose of the presumption is to eliminate the need for expert testimony which would otherwise be necessary to relate the numerical figure representing a percentage of alcohol by weight in the blood as shown by the result of a chemical test, with the common understanding of being under the influence of alcohol. * * * [Citations omitted.] When the test results are in evidence, the evidence that the presumption supplies is the correlation between a scientific fact, the results of the test, and human behavior; that is, that all persons who test .15% or more are under the influence of alcohol."

In Myers, the court recognized, at page 199, 271 N.E.2d 245, that this statutory presumption not only acts to supplant expert testimony as to test results, it also " * * * bears directly on an issue material to the case, i.e., whether defendant was under the influence of alcohol. * * * The impact the presumption provides, given its real intendment, is that it tends to prove whether defendant was under the influence of alcohol."

It must be stressed that while R.C. 4511.19 creates the presumption that one is under the influence of alcohol if there is a specific concentration of alcohol by weight in one's blood, such presumption is rebuttable. As Professor McCormick states in his treatise on Evidence (2 Ed. Cleary Ed.1972) 513, Section 209:

"It is important to remember that none of these tests is conclusive, that it is always open to the opponent to adduce countervailing evidence of his sobriety. Likewise, it is important to remember that the tests are not the sole evidence admissible on either side of the issue. Field sobriety tests, * * * sound motion pictures and videotape recordings, may all supplement the tests in producing a reliable judgment on the issue of intoxication." (Footnotes omitted.) (Emphasis added.)

In the instant case, the appellee does not dispute the fact that the General Assembly may delegate to the Director of Health the determination as to the mechanism which would be used for measuring blood alcohol content of an individual. Rather, the appellee disputes that he is bound by the director's determination that the intoxilyzer is generally a reliable, valid, breath testing instrument. The appellee argues that while the initial determination that a certain machine is qualified to analyze a person's breath may be proper, the ultimate issue of guilt or innocence of an accused is a judicial function: the rulemaking power of the Director of Health may never deprive a defendant of the right to present a defense to the charge. The appellee essentially asserts that if he is denied the opportunity to make a general attack upon that determination, he will be denied his constitutional right to present a defense and to have his guilt proved beyond a reasonable doubt.

Appellee has misconstrued the impact of the enactment of R.C. 4511.19 by the General Assembly. Professor McCormick, in addressing statutes similar to R.C. 4511.19, has explained as follows at pages 511 and 513:

"The subjects of standards of proof and testing are now largely controlled by statute[s] * * *. In the process, most of the original questions as to the general reliability of the tests and the relation between blood-alcohol levels and driver impairment have been answered, expressly or impliedly, by the legislatures."

"Under [such] * * * statutes, the questions of relevancy, and to a large extent of weight, of the evidence, have thus been legislatively resolved. The presumptions have been upheld by the courts * * * and the prescription for test procedures...