567 N.E.2d 310 | Ohio Ct. App. | 1989
Lead Opinion
Defendant-appellant, Christopher Marinik, was indicted on *111
charges of aggravated vehicular homicide in violation of R.C.
At the close of the state's evidence, appellant moved for acquittal on the charge of violating R.C.
Crim. R. 7(D) sets forth the provisions for amending an indictment as follows:
"Amendment of indictment, information or complaint. The court may at any time before, during, or after a trial amend the indictment, information, complaint or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, provided no change is made in the name or identity ofthe crime charged * * *." (Emphasis added.)
Thus, an indictment may be amended during trial only so long as the name or identity of the offense with which a defendant is charged does not change. State v. O'Brien (1987),
Charges of violation of R.C.
Appellant claims that the trial court erred in refusing to permit the testimony of Jonathan Cowan, his expert witness. Since Cowan's testimony related only to the breathalyzer and the charge of violation of R.C.
We reverse the conviction of the appellant for violation of R.C.
Judgment accordingly.
MAHONEY, J., concurs.
QUILLIN, J., dissents.
Dissenting Opinion
R.C.
"(A) No person shall operate a vehicle, streetcar, or trackless trolley within this state, if any of the following apply:
"* * *
"(2) The person has a concentration of ten-hundredths of one percent 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[.]"
Subsections (A)(2) and (A)(3) are equivalents. The blood reading converts directly to a breath reading. Ten hundredths of one percent by weight of alcohol in blood is equal to ten hundredths of one gram by weight of alcohol per two hundred ten liters of breath. This is the basic fact of physics upon which the Ohio system is based. The breath test is just another way to measure blood alcohol.
This was the underlying basis for our ruling in State v. Metro
(Aug. 28, 1985), Medina App. No. 1394, unreported, motion to certify overruled, Oct. 30, 1985. There we held that, in a trial to the court, a defendant could be charged with and convicted of driving with a prohibited breath alcohol level, even though the evidence showed only a prohibited blood alcohol level. This was so, we said, because of Ohio Adm. *113
Code
Thus, in the present case, the amendment from a charge of prohibited blood alcohol to prohibited breath alcohol was an amendment permitted by Crim. R. 7. The evidence supports the indictment as amended.
I would affirm the judgment.