{¶ 3} Upon arrival at the post, Trooper Kelley advised appellant of his Miranda rights and asked him to sign a BMV Form 2255. Appellant rеfused. Appellant agreed to submit to a breath test. Kelley observed appellant for 20 minutes, and then administered the test. The result of the breath test was .080 grams by weight of alcohol per 210 liters of breath. Accordingly, appellant was charged with driving while intoxicated, in violation of Section
{¶ 4} Trooper Brandon Todd testified he conducted a calibration check on the BAC machine on November 9, 2003. Todd stated the BAC Dаtamaster machine has been approved by the Ohio Department of Health. Todd testified he conducted the calibration check in accordance with blood alcohol testing rules promulgаted by the Ohio Department of Health.
{¶ 5} At the May 25, 2004 bench trial, both parties stipulated to the admissibility of the BAC test, including the senior operator permits of Todd and Trooper Spradlin. The trial court granted the Statе's motion in limine to exclude the testimony of John Fusco and Dr. Alfred Staubus, but permitted appellant to proffer their testimony.
{¶ 6} Following the bench trial, the court convicted appellant of driving while intoxicated, in viоlation of Section
{¶ 7} Appellant now appeals raising the following assignments of error:
{¶ 8} "I. The trial court committed reversible error by excluding probative evidence of the margin of error existing in blood alcohol testing by the bac datamaster machine.
{¶ 9} "II. The trial court committed reversible error by excluding relevant, probative expert testimony."
{¶ 11} Appellant maintains the trial court committed reversible error by excluding probative evidence of the margin of error existing in blood alcohol testing by the BAC Datamaster machine. Appellant further argues the trial court committed reversible error by excluding relevant, probative expert testimony. Specifically, appellаnt asserts the trial court improperly precluded appellant from introducing the expert testimony of Dr. Alfred Staubus. Appellant asserts Dr. Staubus' testimony establishes appellant's blood alcohol level аt the time of operation was actually lower than .080.
{¶ 12} The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Noling,
{¶ 13} We will first address appellant's argument regarding the BAC Datamaster's design specification margin of error.
{¶ 14} O.A.C. Section 3701-53-02(A) states:
{¶ 15} "The instruments listed in this paragraph are approved as evidential breath testing instruments for use in determining whether a person's breath contains a concentration of alcohol prohibited or defined by sections
{¶ 16} "(1) BAC Datamaster, BAC Datamaster cdm"
{¶ 17} At trial, appellant proffered the testimony of John Fusco, President and CEO of National Patent Analytical Systems, the sole manufacturer of the BAC Datamaster. He testified the machine has a design specification margin of error of +/-.002 at a .10 BAC level. Based on Fusco's testimony, appеllant argues the trial court should have considered the margin of error in analyzing appellant's BAC test results.
{¶ 18} The Ohio Supreme Court addressed the issue raised by appellant in State v. Schuck (1986),
{¶ 19} "In analyzing the accuracy of a particular intoxilyzer reading, a court may not rely solely on the intoxilyzer's design specifications where data from calibration checks have been properly submitted." Id.
{¶ 20} The Supreme Court then provided the following analysis:
{¶ 21} "In vacating defendants' convictions, the court below essentially held that the intoxilyzer is only as accurate as the limits stated in its design specifications, and that the margin for error described therein was such that the test results for both defendants could nоt constitute sufficient evidence of prohibited alcohol concentration. The state argues that this holding fails to recognize the crucial fact that design specifications are only an estimate of possible error. The exact level of accuracy of a particular intoxilyzer at a particular time is readily verifiable by reference to calibration checks. These checks are regularly conductеd for every intoxilyzer. They involve testing a solution, the alcohol concentration of which is already known to the tester. The reading given by the intoxilyzer from this solution is then compared to the actual known alсohol concentration. The range of accuracy is thereby established.
"We agree with the state's contention that, in analyzing the accuracy of a particular intoxilyzer reading, a court may not rely solely on the intoxilyzer's design specifications where data from calibration checks have been properly submitted. In holding that the intoxilyzer results were not necessarily precise enough to sustain а conviction, the court below relied on the least reliable measure of accuracy. The design specifications are simply maximum range of error for intoxilyzers generally. The actual acсuracy of a given intoxilyzer is determined only by calibration checks. These checks are the truest measure of accuracy of a particular intoxilyzer at a particular time. Where this range of аccuracy, compared against a particular reading, is such that an actual alcohol concentration level of.10 percent or more is assured, the intoxilyzer reading is relevant, admissible, and sufficient to sustain a conviction when coupled with evidence of operation of a motor vehicle. See State v. Boyd (1985),
{¶ 22} This Court addressed the identical issue in State v. Brandt (Oct. 4, 2002), Tuscarawas App. No. 2002AP020008, unreported:
{¶ 23} "We acknowledge we do not know if a reading on the breath test is the "actual" breath content of the person. Rather, the prohibited breath alcohol content set by the legislature is that as it is measured on an approved, properly calibrated, and properly checked breath testing instrument. This is an important point, because appellant seems to argue the error variance should be applied to individual breath tests. The cоde does not provide for such an analysis. The error variance exists only for the instrument check. Once the machine is checked, the variance is no longer part of the analysis."
{¶ 24} As stated above, in thе instant case Trooper Todd testified the machine was properly calibrated and checked pursuant to Ohio Department of Health regulations prior to the administration of appellant's test. Accordingly, appellant's breath alcohol content was measured on an approved, properly calibrated and properly checked breath testing instrument. The margin of error cited by аppellant was no longer part of the analysis in determining the relevant alcohol content, and the trial court did not err in excluding the testimony of John Fusco as to the same.
{¶ 25} We now turn to the testimony of Dr. Staubus рertaining to the range of alcohol concentration in a human subject at the time of the stop. Again, appellant proffered the testimony of Dr. Staubus. He testified, based on the time of the stop, time оf the test, test value, and the proffered testimony of a start time and end time of drinking, and taking into account the varying rates of absorption and elimination, appellant's breath alcohol content at the time of the stop cоuld have been between .060 and .112. Based upon this testimony, appellant argues the trial court erred in excluding the testimony, asserting the evidence is relevant to his BAC at the time of the stop, which could be different than the BAC test results.
{¶ 26} As we noted above, the Director of the Ohio Department of Health has been given authority to promulgate the rules regulating breath testing procedures. As this Court held in State v. Brandt, supra:
{¶ 27} "The law finds a per se violatiоn of the statute when the test result exceeds the proscribed level, after analysis on a proper testing instrument. The Director was granted the discretion to create the protocol whereby such tеsting would create a valid result, accurate enough to be considered a per se statutory violation. The record demonstrates the Datamaster used to test appellant was properly сalibrated, and checked pursuant to the instrument checklist as provided by the administrative code. Therefore any test result obtained from that machine, including appellant's test result, is presumed valid.
"Therefоre, the fact appellant's test result was a .172 was sufficient to demonstrate a per se violation of the statute."
{¶ 28} As in Brandt, appellant's .080 result is a per se violation of O.R.C.
{¶ 29} Accordingly, pursuant to Schuck and Brandt, supra, we overrule appellant's first and second assignments of error, and affirm the May 25, 2004 conviction by the Fairfield County Municipal Court.
Hoffman, J., Gwin, P.J. and Wise, J. concur