Summary
In Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 72 O.O. 2d 44, 330 N.E.2d 908, this court examined the admissibility at trial of the results of a Breathalyzer test.
Summary of this case from Newark v. LucasOpinion
No. 73-976
Decided July 9, 1975.
Criminal law — Driving while intoxicated — Evidence — Breathalyzer test — R.C. 4511.19 — Method of administering test — Burden of proof — Results of test admissible, when.
1. Before the results of a Breathalyzer test given an accused are admissible in evidence against him, it is incumbent upon the state to show that the instrument was in proper working order and that its manipulator had the qualifications to conduct the test (paragraph six of the syllabus in Mentor v. Giordano, 9 Ohio St.2d 140, followed).
2. The results of a Breathalyzer test, administered pursuant to R.C. 4511.19, may only be admitted in evidence upon the affirmative establishment of facts supporting the following conditions:
a. The bodily substance must be withdrawn within two hours of the time of such alleged violation.
b. Such bodily substance shall be analyzed in accordance with methods approved by the Director of Health.
c. The analyses shall be conducted by qualified individuals holding permits issued by the Director of Health pursuant to R.C. 3701.143.
APPEAL from the Court of Appeals for Hamilton County.
On December 23, 1972, at 3:30 a.m., Joseph Sand was observed by Patrolman William Lindemann of the Cincinnati Police Division operating an automobile in the vicinity of the 2200 Block of Columbia Parkway. Patrolman Lindemann paced the westbound vehicle at 20 miles per hour for a distance of approximately 1,500 feet, noting the direction of travel in a weaving manner over three lightly occupied lanes, before he turned on his red light and stopped Sand. The policeman, while requesting the driver's license of Sand, noticed that his eyes were bloodshot, his face was red, and there was a strong odor of alcoholic beverage upon his breath. Upon exiting the car, at the request of the policeman, he was staggering. He was advised that he was under arrest for driving under the influence of alcohol. Patrolman Robert Steinher responded to Patrolman Lindemann's call for assistance, whereupon Sand was driven in the police car to 310 Lincoln Park Drive, the Alcohol Safety Action Project office, a four or five minute trip.
Sand was charged with driving under the influence of an alcoholic beverage, and "weaving," to which he entered pleas of not guilty and demanded a jury trial. On February 28, 1973, he waived the jury trial and elected to be tried by a judge of the Hamilton County Municipal Court.
The testimony showed that, upon arrival at the A.S.A.P. office, Sand was advised of the Ohio implied-consent law and a Breathalyzer test was requested, to which he acceded. Patrolman Lindemann testified that he was licensed by the Director of the Board of Health for the state of Ohio as a senior operator and prior to this examination he had maintained and operated the Breathalyzer machine in excess of 200 or 300 times.
The patrolman then testified, as follows:
"Q. Un-huh, as far as the test itself and what an individual must do to give the correct reading?
"A. The individual has to blow deep lung breath into the Breathalyzer where it is — the alcohol is oxidized by a chemical agent, the chemical agent is potassium dichromate, sulfuric acid, and I can't remember the other one off hand. The other chemical is silver nitrate — there is a yellow color to begin with, the alcohol which is contained in the breath sample bleaches this out and it is measured by a photocell. Prior to the test when the machine is purged ampoules are not changed. After the machine is balanced and then the breath sample is blown into the chamber, at which time I turn to analyze, the piston drops, propelling the breath sample into the ampoule which bleaches out the solution. After a period of 90 seconds, this oxidation is complete, the photocells, excuse me, then pick up the oxidation and the machine is rebalanced to give a reading.
"Q. And, do you compute the reading yourself?
"A. No, the machine does.
"Q. What is the relationship between the breath and the blood in determining the amount of alcohol?
"A. 2100 to 1.
"Q. And, what did you do on December 23, 1972, concerning the Breathalyzer test getting it ready for that test?
"A. I took Mr. Sand to the ASAP Office, arrived there at 3:45, 3:50 in the morning, the machine was on. However, to make sure it was operating properly, I checked the temperature gauge; it was 50° centigrade. I still waited 20 minutes prior to giving the test which is required, to make sure there is no residue in the mouth whatsoever. At 4:17, I requested, at 4:17 he did give me a breath sample after he acknowledged the Implied Consent Law then purged the machine.
"Q. And, after doing that — all this — did you make — is this when you made your determination this Breathalyzer instrument was in good operating order, prior to receiving the breath sample?
"A. I let the machine warm up for 20 minutes, I took the sealed ampoule, certified by the State Board of Health, I gauged the ampoule while it was sealed to make sure it had the correct amount of solution in the ampoule, which is three milliliters.
"Q. And, then what did you do?
"A. I then broke the seal and inserted the bubbler tube into the ampoule, inserted a rubber piece onto the end of the bubbler tube and put — inserted it into the machine. I pumped fresh air from an atomizer ball into the machine, let it run through the solution for 90 seconds, timed the machine for another 90 seconds to make sure that all the residue was out of the machine and balance the machine. At this time it was ready for the test, I requested a breath sample, the gentleman blew into the machine. Upon completion of blowing into the machine I turned it to analyze, at which time the air was propelled through the ampoule. At 90 seconds after that the light came on, after 90 seconds delay, after that the test is completed, the machine has done its function, at this time we turned the balance wheel for the photocells and register the reading.
"Q. All that was done on December 23, 1972 for Mr. Sand?
"A. Yes, sir.
"Q. And, did you say you observed Mr. Sand for 20 minutes?
"A. I observed Mr. Sand for longer than 20 minutes.
"Q. How long?
"A. The time we got to the office, around, it was about 4 o'clock, the test wasn't given until 4:17. Prior to giving the test, the State law requires that we observe them for 20 minutes to make sure nothing is put into the mouth area.
"Q. Did he ingest anything at all during this period?
"A. No."
Subsequently, over objection, the officer was allowed to give his opinion, as an expert, as to whether the Breathalyzer machine was in good operating order. He answered in the affirmative. The result of the Breathalyzer test was .15 blood alcohol content by weight.
At approximately 4:45 a.m., or one hour and fifteen minutes after his arrest, Sand was asked to perform some psychomotor tests consisting of standing with his feet together and bending, walking heel-to-toe a three-inch-wide line, finger-to-nose of both hands, which he performed slowly and with some swaying, stumbling, staggering and missing. He was also asked to pick some coins from the floor and place them on a table in a straight line, which he performed slowly.
Upon thorough cross-examination, it was brought out that neither the Breathalyzer nor the psychomotor tests were on video tape as required in the training memo.
Patrolman Steinher then testified to his participation and presence during the entire incident and, based upon his experience as a police officer and his observations of Sand, was allowed to give an opinion that Sand "was obviously under the influence of an alcoholic beverage and unfit to operate a motor vehicle." Patrolman Steinher had also completed and passed the course given by the Ohio Department of Health on the Breathalyzer, and he, too, held a senior operator's license and testified that the Breathalyzer test administered to Sands had been given in compliance with the regulations of the Director of Health, as follows:
"A. There are certain set procedures before you test a person on the Breathalyzer and myself as a witness to the Breathalyzer test, the procedures were followed, the machine was purged, the chemical ampoule was checked for the proper level and the machine was purged, the test was logged into the logbook to this particular Breathalyzer, and all the other tests were required, and the procedures were followed strictly."
Patrolman Steinher testified further that the video tape had not been in use on the morning of December 23, 1972, at the direction of the sergeants in charge of the A.S.A.P. office. The state rested.
Thereupon, Harry Sand, an attorney and father of Joseph Sand, testified that he had received a call from his son at 3:45 a.m., December 23, 1972, and as a result went to the A.S.A.P. office on Lincoln Park Drive. He arrived after the Breathalyzer test but was present for the psychomotor tests and did observe them at approximately 4:40 a.m. Harry Sand was then qualified and permitted to give his opinion concerning whether or not his son was under the influence, which opinion was in the negative. He also testified that when first called he had requested the police officers to give his son a blood test, which was not their practice; that, after arriving home at 5:25 a.m. so his son could change his vomit-covered shirt, he tried unsuccessfully to obtain a blood test at General Hospital and at Bethesda North. The defense then rested.
The court found Joseph Sand guilty on both counts and pronounced sentence on April 27, 1973.
Joseph Sand appealed to the Court of Appeals for Hamilton County, assigning as prejudicial error the admission by the trial court of the results of the Breathalyzer test after refusing testimony, offered by the defense, of the standards required by the Director of Health for the giving and analysis of said test. The Court of Appeals found that R.C. 4511.19 had not been complied with in that the prosecution "failed to establish affirmatively what methods of analysis of the specimen have been approved by the Director of Health and that the analysis had been made in accordance therewith." However, that court affirmed the finding of guilt. The cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. Thomas A. Luebbers, city solicitor, Mr. Paul J. Gorman and Miss Delores J. Hildebrande, for appellees.
Messrs. Beckman, Lavercombe. Fox Weil, Mr. Bernard C. Fox and Mr. Frederick G. Cloppert, Jr., for appellant.
This case calls upon this court to construe the admissibility of the results of a Breathalyzer test under R.C. 4511.19. This section provides, in pertinent parts, as follows:
"No person who is under the influence of alcohol or any drug of abuse shall operate any vehicle, streetcar, or trackless trolley within this state.
"In any criminal prosecution for a violation of this section, or ordinance of any municipality relating to driving a vehicle while under the influence of alcohol, 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 blood, urine, breath, or other bodily substance withdrawn within two hours of the time of such alleged violation. * * * This limitation does not apply to the taking of breath or urine specimens. 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 Section 3701.143 of the Revised Code. * * *"
It should be noted at this point that it is not the results of the Breathalyzer test that give rise to its objections, but the presumptions established by this statute which have been purposely omitted since they are not involved in the question presented.
R.C. 3701.143 reads as follows:
"The Director of Health shall determine, or cause to be determined, techniques or methods for chemically analyzing a person's blood, urine, breath, or other bodily substance in order to ascertain the amount of alcohol in a person's blood. The director shall approve satisfactory techniques or methods, ascertain the qualifications of individuals to conduct such analyses, and issue permits to qualified persons authorizing them to perform such analyses. Such permits shall be subject to termination or revocation at the discretion of the director."
While the words of the statute are clear enough, it is obvious that they do not contain the regulations or methodology determined by the Director of Health.
Judge Cole of the Court of Appeals for Mercer County, in the case of State v. Miracle (1973), 33 Ohio App.2d 289, succinctly set forth three criteria prior to the admission in evidence of the results of a Breathalyzer test, as follows:
"a. The specimen subject of the test must be withdrawn within two hours of the time of such alleged violation;
"b. The substance of the specimen shall be analyzed in accordance with methods approved by the Director of Health;
"c. The analysis shall be made by an individual possessing a valid permit issued by the Director of Health, pursuant to Section 3701.143 of the Revised Code."
Appellant argues that the burden is on the prosecution to show that the test was administered according to the methods required by the Director of Health of the state of Ohio.
The sixth paragraph of the syllabus of Mentor v. Giordano (1967), 9 Ohio St.2d 40 contains this admonition:
"Before the results of a Breathalyzer test given an accused are admissible in evidence against him, it is incumbent on the state to show that the instrument was in proper working order and that its manipulator had the qualifications to conduct the test."
That language contains, in addition to the necessary burden, two of the three prerequisites cited in Miracle, supra. It should be pointed out, however, that the Mentor case was decided prior to the amendment of R.C. 4511.19, wherein the statutory presumptions eliminated the necessity of medical expert testimony connecting the resultant index number or reading yielded by the Breathalyzer and the physical condition of one accused of being under the influence of alcohol.
Appellant concedes the statutory requirement that the test be administered within two hours of the arrest has been satisfied. And he further concedes that the officer administering the test was sufficiently qualified and licensed by the Director of Health. Appellant is not satisfied with the officer's testimony, recited in the record, concerning his conduct, which appellant contends did not follow the method of operation precisely to that set forth in appellant's proffered Exhibit 2, which contains a "Breathalyzer Operational Check List." We disagree. The testimony of the officer administering the test is buttressed by a second officer who also was a senior licensed operator and who testified that "the procedures were followed."
The record discloses no testimony whatsoever in conflict with that enunciated by the police officers concerning the method of administering the Breathalyzer test. The evidence introduced by the prosecution lays down a solid foundation for admitting the results of the test. We conclude that the testimony concerning the results of the Breathalyzer test was properly received by the trial court. The prosecution clearly established, through the evidence elicited from the two police officers, that the test was administered in conformity with the standards established by the Director of Health. We hold that it is sufficient to show by the testimony of the participating witnesses that their actions satisfied completely these regulations.
It is not necessary to present documentary proof, as was done in State v. Sickles (1970), 25 Ohio App.2d 1, that the testing procedures were completed on a Breathalyzer operational check list. The better evidence is the testimony of the officer as in the instant case.
Since we have determined that the admission of the results of the Breathalyzer test was proper, we will not consider the question by the appellant concerning the prejudicial quality of that evidence as provided under R.C. 2945.83(C).
R.C. 2945.83(C), in pertinent part, reads:
"No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:
"* * *
"(C) The admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby * * *."
The decision of the Court of Appeals finding error in the admission of the result of the Breathalyzer test is reversed, however their judgment affirming the conviction is adhered to.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, W. BROWN and P. BROWN, JJ., concur.