321 N.E.2d 618 | Ohio Ct. App. | 1974
Lead Opinion
This is an appeal from the Kettering Municipal Court from defendant's conviction upon a *567 charge of operating a motor vehicle while under the influence of alcohol.
The evidence consisted of testimony that defendant drove his automobile erratically, that the police officers observed an odor of alcohol about defendant, that defendant failed to perform the finger-to-nose and heel-to-toe tests properly, and that defendant admitted having been to a party and consuming some alcoholic beverages. No chemical tests were given, and the officers were not asked for an express opinion as to whether defendant was under the influence of alcohol. Defendant appeals and raises three assignments of error as follows:
"I. The failure to give chemical tests or a blood alcohol test was a denial of due process or in the alternative, O. R. C. Section
"II. In the alternative, the trial court in permitting hearsay testimony as to Judge Berger's alleged belief as to the credibility of breathalyzer evidence was prejudicial and as such denied defendant a fair trial.
"III. In the alternative, defendant contends his motion to dismiss should have been sustained by the trial court because the city of Kettering failed to establish sufficient evidence of guilt to justify said case from going to the jury."
With respect to the first assignment of error, a pretrial motion to dismiss upon the same grounds was overruled by the trial court by a decision reported in Kettering v. Baker (1973),
R. C.
"Any person who operates a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or *568 urine for the purpose of determining the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol. The test or tests shall be administered at the direction of a police officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways in this state while under the influence of alcohol. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered."
The language of the section is mandatory. It provides that the test "shall be administered," and that the law enforcement agency "shall designate" the type of test which "shall be administered." Likewise, R. C.
Accordingly, we conclude that R. C.
We know of no exclusionary rule that would be applicable. There is nothing in either R. C.
Here, no constitutional or statutory right of defendant was violated by the failure to administer the test. Rather, the police officer failed to perform a statutory duty imposed upon him for the protection of the traveling public. State v.Starnes (1970),
The second assignment of error is also not well taken. While it was erroneous to permit the police officer to testify as to the attitude of a judge toward the use of a breathalyzer, especially where the case was tried before a different judge, such error was not prejudicial. If a proper foundation is laid, the results of a breathalyzer test are admissible in evidence. Here, no test was given. There was no test to be evaluated by the jury. Accordingly, the opinion of another judge as to the reliability of the breathalyzer test was irrelevant.
By the third assignment of error, defendant contends that the evidence was not sufficient to permit the jury to find that defendant was under the influence of alcohol. There was evidence of defendant's manner of driving, of the odor of an alcoholic beverage on defendant's breath and inside his automobile, of defendant's admission that he had been to a party and had been drinking, and of the manner of defendant's performing the finger-to-nose and heel-to-toe tests.
Defendant contends that because the police officers did not express an opinion as to whether defendant was under the influence of alcohol, the evidence was insufficient. However, on cross-examination, officer Woolf testified he had never found a person free from the influence of alcohol who had difficulty in performing the finger-to-nose test, although he stated there could be physical factors which *570 would prevent a person from doing so. The officer similarly testified as to the heel-to-toe tests. There was no evidence that there was any reason why defendant should have difficulty in performing the tests.
From an examination of the entire record, we conclude that there was sufficient evidence to permit the jury to find that defendant was driving while under the influence of alcohol.
For the foregoing reasons, all three assignments of error are overruled, and the judgment of the Kettering Municipal Court will be affirmed.
Judgment affirmed.
CRAWFORD, P. J., and SHERER, J., concur in the judgment and syllabus only.
Concurrence Opinion
We concur in the decision affirming the judgment of the Kettering Municipal Court, but we disagree with that part of Judge Whiteside's opinion which holds that R. C.
Hence, we reach the same conclusion as did Judge Whiteside, that the judgment should be affirmed.
WHITESIDE, J., of the Tenth Appellate District, sitting by designation in the Second Appellate District. *571