State v. Mohr

26 Ohio St. 2d 204 | Ohio | 1971

Per Curiam.

The Court of Appeals below certified this case to this court on the ground that its decision conflicted with the following statement in paragraph one of the syllabus of Couch v. Rice, supra (23 Ohio App. 2d 160):

“The results of a chemical test for alcohol of one accused of driving while intoxicated, made at the request of a police officer, are not admissible in evidence unless the accused was advised, as required by Section 4511.19, Revised Code, of his right to have a physician or other qualified person of his own choosing administer an additional test.”

This issue is basically the same as that raised in State v. Myers (1971), 26 Ohio St. 2d 190. For the reasons stated in that opinion, this issue must be decided in favor of the appellee.

Appellant’s second contention is that it was prejudicial error for the trial court to admit evidence pertaining to the results of the chemical analysis of the defendant’s bodily substance, unless the prosecution affirmatively proved that such substance was withdrawn within two hours of the time of defendant’s arrest. Reviewing the narrative bill of exceptions, the trial judge’s separate findings of fact and conclusions of law, and the transcript, we can find no indication that this question was brought to the attention of the trial judge so that he could have ruled thereon. In its opinion, the Court of Appeals stated that the question of “* * * the time which transpired from arrest to test * * *” was not questioned during trial. As this was the case, we shall not decide the question raised in this assignment of error.

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O’Neill, C. J., Herbert, Duncan, Stern and Leach, JJ., concur. Schneider and Corrigan, JJ., dissent, Schneider, J., dissents for the reasons stated in his dissenting opinion in State v. Myers, 26 Ohio St. 2d 190.