26 Ohio St. 2d 190 | Ohio | 1971
Lead Opinion
This appeal calls upon us to decide, first, whether, under R. C. 4511.19(B), the failure to advise a person tested for determination of the concentration of alcohol in the blood that he “may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a police officer * * *” requires exclusion from evidence of the police-administered test results. Other courts have answered affirmatively. See Couch v. Rice (1970), 23 Ohio App. 2d 160; Bores v. Rice (1969), 17 Ohio Misc. 163.
It should be noted that here we are not confronted by any question of constitutional magnitude which might place this issue within the purview of the exclusionary rule first enunciated by the United States Supreme Court. See Mapp v. Ohio (1961), 367 U. S. 643, and, generally, State v. Cowans (1967), 10 Ohio St. 2d 96.
The United States Supreme Court has held that where a defendant refused to consent to a taking of his blood sample for chemical analysis, a blood sample taken over his objection and without his consent was admissible in evidence. In so holding, the court denied the contention that such procedure violated the Fourth, Fifth, Sixth, or the Fourteenth Amendments to the United States Constitution. Schmerber v. California (1966), 384 U. S. 757. See, also, Breithaupt v. Abram (1957), 352 U. S. 432.
Rather than being faced with a constitutional problem in the case at bar, we are confronted with a statutory requirement that the person “shall be so advised,” with no express sanction provided for the failure of the police officer to do so. With that in mind, we must look to the statutory rule in this state that the reversal of a lower court’s conviction on the basis of “the admission or ¿ejection of any evidence offered against or for the accused” shall not be had “unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby.” R. C. 2945.83. Accordingly, in the absence of a showing of prejudice having accrued to a defendant by
In reaching this result, we are aware that there is no effective leverage available to a defendant which may be employed to compel police officials to advise a suspect as required by R. C. 4511.19(B). This was, and is, a matter for the General Assembly. In our view, there is no judicial machinery available to produce the missing sanction. Moreover, whether or not the presence of an attorney representing defendant at the police station waives or makes unnecessary the advice the statute requires to be given a suspect is mooted by our conclusion that the test results were otherwise admissible.
In dealing with appellant’s claim that the state’s argument and the trial court’s charge was free of error, we must look to the nature of legal presumptions in general, and, specifically, the presumption embodied in R. C. 4511.-19(B). Generally, “a presumption is a procedural device which is resorted to only in the absence of evidence by the party in whose favor a presumption would otherwise operate; and where a litigant introduces evidence tending to prove a fact, either directly or by inference, which for procedural purposes would be presumed in the absence of such evidence, the presumption never arises and the case must be submitted to the jury without any reference to the presumption in either a special instruction or a general charge.” Ayers v. Woodard (1957), 166 Ohio St. 138, paragraph three of the syllabus. See, also, In re Breece (1962), 173 Ohio St. 542, 554; Shepherd v. Midland Mutual Ins. Co. (1949), 152 Ohio St. 6.
Although the decision in Ayers v. Woodard, supra,
“* * * Conversely, when either party introduces substantial credible evidence tending to prove a fact which would otherwise be presumed, the presumption either never arises or it disappears. * * *” (Emphasis added.)
In Ayers, the court decided that when plaintiff introduced substantial credible evidence from which the jury could infer agency, an issue in the case, the common-law presumption of agency was removed from the case and became a forbidden subject for a part of the court’s charge.
In order to decide whether the presumption problem in the instant case comes within the rule of law announced in paragraph three of the Ayers syllabus, we examine the nature of the presumption established by R. C. 4511.19 and the fact posture of the case at bar.
Specifically, R. C. 4511.19(B) reads: “If there was at that time a concentration of fifteen hundredths of one per cent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of alcohol. * * *”
In so providing, the General Assembly has expressed its conviction that the relationship between the objective determination by chemical test of the percentage of alcohol by weight in the blood (.15% or more), and its effect on people, is so well scientifically established that it need not be demonstrated by evidence, and may take the place of evidence at trial. The purpose of the presumption is to eliminate the need for expert testimony which would otherwise be necessary to relate the numerical figure representing a percentage of alcohol by weight in the blood as shown by the result of a chemical test, with the common understanding of being under the influence of alcohol. See Lister v. England (D. C. C. A. 1963), 195 A. 2d 260; State v. Protokowics (1959), 55 N. J. Sup. 598, 151 A. 2d 396; Vore v. State (1954), 158 Neb. 222, 63 N. W. 2d 141. When the test results are in evidence, the evidence that the presumption supplies is the correlation between a scientific fact,
The arresting officer and other police officers gave testimony descriptive of how appellee appeared to them; evidence which is commonly termed “physical signs” of the influence of alcohol. They also stated that in their op-pinions the appellee was under the influence of alcohol.
Citing the cases Ayers v. Woodard, supra, and Toledo v. Gfell (1958), 107 Ohio App. 93, appellee argues that when the prosecutor introduces this other evidence of defendant’s condition resulting from the consumption of an alcoholic beverage (other than the test results), the court cannot charge on the statutory presumption. Although this proposition was decided against the appellee in the Court of Appeals, and no cross-appeal was perfected, we are aware of the concern members of the bar and bench have for this question, and thus we are constrained to deal with it.
The prosecutor, presumably relying on the presumption, did not introduce any expert testimony to prove the correlation between the numerical test result and human behavior. Actually, viewing the problem somewhat narrowly, it could be argued that, since the state has not produced such expert testimony, the presumption still exists. Such a narrow distinction from the Ayers rule, however, is not realistic.
In addition to supplanting such expert testimony, the statutory presumption also bears directly on an issue material to the ease, i. e., whether defendant was under the influence of alcohol. In this case, as in many others, this was the only contested issue for determination.
The impact the presumption provides, given its real intendment, is that it tends to prove whether defendant was under the influence of alcohol. Pragmatically, a fine distinction based on the fact that the presumption is abstract or impersonal as to a particular defendant generally will not be made by jurors.
The state introduced other nonscientific testimony to
If we were to hold that this statutory presumption is to be rendered nonproductive by a police officer testifying that in his opinion defendant was under the influence of alcohol, or the admission of other evidence descriptive of a defendant’s appearance or behavior, we would be acting contra to the intended thrust of the statute. We thus believe this statutory presumption to be significantly different from the common-law presumption considered in Ayers v. Woodard, supra.
However, before the statutory presumption may be employed by the fact finders, they must be satisfied by the requisite degree of proof that at the time of testing “there was * * * a concentration of fifteen hundredths of one per cent or more by weight of alcohol in defendant’s blood.”
A defendant may present evidence that a chemical test result does not necessarily prove that he was under the influence of alcohol, though his test result was above .15%. Indeed, here, appellee did attempt to do precisely that.
As stated above, this presumption, as well as other statutory presumptions not specifically designated to be conclusive, may be rebutted by other evidence. State, ex rel. Olsen, v. Indus. Comm. (1967), 9 Ohio St. 2d 47, 50; State, ex rel. Pivk, v. Indus. Comm. (1935), 130 Ohio St. 208, 212. A jury must be charged in this regard.
The degree of proof necessary to rebut a presumption is the subject of paragraph five of the syllabus of Kennedy v. Walcutt (1928), 118 Ohio St. 442, which is as follows:
“The degree of proof necessary to remove a presumption is not to be confused with the degree necessary to sustain the burden of proof. When a party is not required to sustain the burden of proof upon some particular issue, a rebuttable presumption arising out of such issue may be overcome by evidence which counterbalances the evidence to sustain the presumption; however, when such party is required to assume the burden of proof upon an issue, any rebuttable presumption arising therefrom must be remov
In this case, the prosecutor’s argument, as set forth above, reinforced by the trial court’s assurance that it was not a misstatement, resulted in error. Arguments to the jury that the presumption provided in R. C. 4511.19(B) was the law that the jurors were required by oath to apply, without explanation by the court as to the presumption’s rebuttable nature, were highly prejudicial to appellee. Moreover, the statements may have led the jury to believe that the defendant who tested .15% is presumed by law to be under the influence of alcohol, without consideration of the requirement that a jury must first find by the proper quantum of evidence that the test procedure was proper and proved the defendant’s blood alcohol concentration.
The statement in the general charge that a presumption “may be controverted by other evidence, direct or circumstantial,” is an insufficient instruction with respect to the rebuttability of the presumption.
Appellee urges also that this appeal should be dismissed for the reason that an appeal to this court cannot be prosecuted by a city law director without the consent of the prosecuting attorney.
R. C. 2953.14 provides:
“Whenever a court superior to the trial court renders a. judgment adverse to the state in a criminal case or proceeding, the state, through either the prosecuting attorney or the attorney general, may institute an appeal * * (Emphasis added.)
Appellee’s contention is that the language of this statute is exclusory, rendering a municipal law director poAverless to seek such an appeal. We do not agree.
R. C. 1901.34 directs “the city solicitor, city attorney, or director of laAv for each municipal corporation” to “prosecute all criminal cases brought before the Municipal Court for * * * violation of state statutes * * * occurring Avithin the municipal corporation * * This statute provides further that a municipal legal officer “shall per
The instant case began in the Ashland Municipal Court, and was prosecuted by the law director of that city. We hold that under these circumstances, he was a proper person to carry forth the state’s appeal to this court after a reversal by the Court of Appeals.
Appellee also attempts to raise other issues in this court, but has failed to appeal from the judgment of the Court of Appeals. Therefore, we need not review those issues.
Accordingly, for reasons specified, the judgment of the Court of Appeals, reversing the judgment of the Municipal Court and remanding the same for a new trial, is affirmed.
Judgment affirmed.
Concurrence Opinion
concurs in paragraphs two through seven of the syllabus but dissents from paragraph one and the judgment. Philosophically, I am opposed to the exclusionary rule. However, in this type of case, the accused has the statutory right to consult a private physician, where services may be essential to his defense. He should be informed of that right; and the prosecution should bear the risk of failure of that information.