506 N.E.2d 1208 | Ohio Ct. App. | 1986
Defendant-appellant Sanford Bakst ("defendant") was convicted in a jury trial of operating a vehicle while under the influence of alcohol, in violation of R.C.
We will consider the first assignment of error, in which defendant asserts the court erred in refusing to suppress evidence of his arrest and all subsequent evidence flowing from it, independently of the other five assignments, which raise claims of errors committed during the trial.
The officer had probable cause to arrest the defendant for driving under the influence of alcohol. This was not a case of an uncomplicated speed violation, as in State v. Taylor (1981),
A second police officer was called to the scene; this officer escorted defendant to a police station after conferring briefly with Officer Konnett and later conducted the intoxilyzer test.
When defendant realized he would be charged with a traffic violation, he became hostile and threatened to get the officers' badges, claiming he made enough money to see "this whole thing washed down the river." He said he could "buy and sell" them both. He conceded he had been at a restaurant bar and had had "a drink and a half," but some of his other remarks were incomprehensible. His speech was slurred and his eyes were bloodshot. He could not recite the alphabet correctly because he omitted ten letters, and he did not follow a direction to count backwards from one hundred by tens (he counted by units). He failed psychomotor tests of his ability to maintain his balance, to walk a straight line and to touch his nose. In the opinion of both officers, he was under the influence of alcohol.
Defendant acceded to the standard *143
request to take an intoxilyzer test. The result indicated a concentration of thirty-four thousandths (.034) of one gram by weight of alcohol per two hundred ten liters of his breath. Defense counsel elicited from the testing officer the information that the legal limit in Ohio is ten hundredths (.10) of one gram under another provision of "the DUI statute," and that the defendant's intoxilyzer result was below that figure. (See R.C.
At a later moment in the police station, the defendant was asked to submit to a urine test. The officers thought his condition might have been exacerbated by a drug of abuse that would not be detected by the intoxilyzer but would show up in a urine analysis. Defendant refused to take the urine test. Testimony about this refusal was admitted over defendant's objection to any and all evidence about a second test. Another objection was overruled when Officer Konnett was asked whether he (or his fellow officer) had asked the defendant why he refused. The officer said that the defendant made no response.1
At the end of the trial, defendant made a written request, pursuant to Crim. R. 30, that the court instruct the jury specifically that in determining guilt or innocence, it could consider the fact that the concentration was less than the legal limit. This was refused by the court. We will set forth the specific instruction in our discussion of the sixth assignment of error in Part VII below.
The remarks were obviously relevant to the central question of whether the defendant was then under the influence of alcohol.
Even though relevant, evidence must be excluded under Evid. R. 403(A) if its probative value is outweighed by the danger of unfair prejudice, inter alia. We hold that evidence about an accused's own actions or language, so long as it is relevant to the essential elements of the offense, cannot be "unfairly prejudicial." The evidence about this defendant's remarks was harmful to his defense, obviously, but it was not "unfair" to admit it.
State v. Lewis (Nov. 14, 1979), Hamilton App. No. C-780804, unreported, is inapposite because that case dealt with the unfair cumulative effect of repetitive colored pictures of a gruesome murder. In the instant case, the evidence was neither cumulative nor repetitive. The second assignment of error has no merit.
The first argument ("issue") is that once a person who is arrested under R.C.
The second argument is that the defendant's right against self-incrimination was violated when Officer Konnett was allowed to testify that the defendant remained silent after he was asked why he would not submit to the urine test. This argument has no merit under South Dakota v. Neville (1983),
Defendant's third argument is that the court should not have allowed evidence of his refusal to take the urine test because there was "absolutely no evidence presented by the State of Ohio regarding an accused [sic] being under the influence of any drug of abuse." We are not persuaded. The Uniform Traffic Ticket accused defendant of operating a motor vehicle "while under the influence of alcohol and/or drugs of abuse," thus putting defendant on notice that he was charged with having used drugs of abuse as well as alcohol. Defendant's aberrant conduct on the night of his arrest was such as to raise questions in a reasonable mind about what caused him to behave this way. We find nothing prejudicial in allowing the officers to testify that the reason they wanted to have the results of a urine analysis was that this would disclose the presence of drugs of abuse whereas an intoxilyzer test would not.
We note in passing that the court's instructions to the jury did not mention drugs of abuse in any manner and that the verdict found defendant guilty of operating the vehicle "while under the influence of alcohol" only. It would appear the court felt that any inferences about the use or influence of drugs of abuse were insufficient to present that possibility to the jury. We do not quarrel with that conclusion in this case.
Defendant was charged with violation of R.C.
The evidence summarized in Part II above was amply sufficient to support the conviction.
"If there was at a time bodily substance was withdrawn a concentration of less than ten hundredths of one gram by weight of alcohol or [sic] two hundred ten liters of his breath such fact may be considered with other competent evidence in determining the guilt or innocence of the Defendant."
We note that the language of this instruction comes substantially directly from the fourth paragraph of R.C.
We are not persuaded that the refusal of the court to give the instruction was erroneous, for three reasons that are intertwined and cumulative. First, the statute does not require it. The statute merely says that if the tested concentration is less than those specified in Division (A), this fact may be considered in determining guilt or innocence. The jury in the instant case was not kept from such consideration, because it had evidence before it that the defendant's alcohol concentration was less than the "legal limit" of ten hundredths (.10) of one gram by weight of alcohol in his breath. The statute does not require that any specific instruction shall be given to the jury.
Second, under the present language of R.C.
Third, the instruction given by the trial court to the jury was accurate and complete, and in no way misleading. The jury was told that in deciding whether the defendant was guilty of operating a vehicle while under the influence of alcohol, it must consider all the evidence (which included sub silentio the result of the intoxilyzer test) and determine whether the defendant had consumed "some alcohol whether mild or potent in such a quantity whether great or small that it adversely affected [and] appreciably impaired the defendant's actions[,] reactions or mental processes under the circumstances then existing and deprived him of a clearness of the intellect and control of himself which he *147 would have otherwise possessed."5 Without analyzing in detail those of the court's instructions that were addressed to the proof needed for a guilty verdict, being those set forth in footnote 5, we conclude that the jury was fully and accurately informed and that the court made no error in its jury instructions.
Judgment affirmed.
DOAN and HILDEBRANDT, JJ., concur.
"Q. [Prosecutor] You were also present when he was asked to take the intoxilyzer examination?
"A. [Officer Konnett] Yes, sir, I was.
"Q. And did you have occasion to see the result of that examination?
"A. Yes, sir, I did.
"Q. What was the result, Officer?
"A. I believe the intoxilyzer read .03.
"Q. Point zero three?
"A. I believe. I haven't got the papers with me.
"Q. Officer, were you — While in your presence, was Sanford Bakst asked to submit to a urine test?
"MR. O'CONNOR: Objection. Approach the Bench.
"(The following was had out of the hearing of the jury.)
"MR. O'CONNOR: Judge, I believe the evidence is going to show at this time he was asked to take the urine test subsequent to the * * * breathalyzer, that the evidence will be that he refused to submit to such. At this point, we're objecting to any and all testimony regarding the refusal.
"He was asked to take a BAC and submitted to a BAC. Later they asked to take blood of a different variety, that being urine.
"We're making A [sic]
"THE COURT: Well, the objection will be overruled.
"Q. Officer, was Mr. Bakst in your presence when he was asked to take a urine test?
"A. Yes.
"Q. Did he take that test?
"A. No, he did not.
"Q. Was he asked why?
"MR. O'CONNOR: Objection.
"THE COURT: Overruled.
"A. We asked him why he wouldn't but there was no response. He didn't say anything.
"MR. O'CONNOR: Objection, again.
"THE COURT: Overruled."
"If there was at the time bodily substance was withdrawn a concentration of less than ten-hundredths of one per cent by weight of alcohol in the defendant's blood, less than ten-hundredths of one gram by weight of alcohol per two hundred ten liters of his breath, or less than fourteen-hundredths of one gram by weight of alcohol per one hundred milliliters of his urine, such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant."
"You've heard me talk about evidence. Evidence is all the testimony which was received from the witness stand.
"* * *
"There are two types of evidence, direct evidence and circumstantial evidence. * * *
"* * *
"In this case the defendant is charged with operating a motor vehicle while under the influence of alcohol in violation of section
"Now, there are certain words which we have used. To operate. * * *
"* * *
"Alcohol as used in this section means ethel [sic] alcohol whether refined or diluted with water or not. Under the influence of alcohol means that the defendant consumed some alcohol whether mild or potent in such a quantity whether great or small that it adversely affected an [sic] appreciably impaired the defendant's actions[,] reactions or mental processes under the circumstances then existing and deprived him of a clearness of the intellect and control of himself which he would have otherwise possessed.
"The question is [not] how much alcohol would affect the ordinary person. The question is what affect [sic] did any alcohol consumed by the defendant have on him at the time and place involved. If the consumption of alcohol so affected the nervous system, brain, or muscles of the defendant as to impair and appreciably lower his ability to operate the vehicle, then the defendant was under the influence of alcohol.
"The word appreciable as I have just used it — something is appreciable if it is noticable [sic] or perceptable [sic]. Appreciable is not to be confused in this sense with the word substantial.
"If you find that the State proved beyond a reasonable doubt all the essential elements of the offense of driving under the influence of alcohol in violation of
"If you find that the State failed to prove beyond a reasonable doubt any one of the essential elements of the offense of driving under the influence of alcohol in violation of