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State v. Marinik2/1/1989
.3d 18, 20 OBR 19, 484 N.E.2d 180. Thus, the trial court, by allowing the amendment of the indictment, permitted a change in violation of Crim. R. 7(D). Since the state presented no evidence of appellant's blood-alcohol content, the trial court should have granted appellant's motion for acquittal on charges of violation of R.C. 4511.19(A)(2). State v. Metro (Aug. 28, 1985), Medina App. No. 1394, unreported; State v. Ulich (Apr. 25, 1984), Summit App. No. 11515, unreported; Akron v. Gradisher (July 3, 1985), Summit App. No. 11986, unreported. Appellant's first assignment of error is well-taken and we reverse his conviction on R.C. 4511.19(A)(3).
"The trial court erred to the prejudice of the defendant when it denied the defendant an opportunity to call a witness in his favor in violation of defendant's constitutional rights under the Sixth and Fourteenth Amendments, United States Constitution and Article I, Section 10, Ohio Constitution."
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. 4511.19(A)(3), our disposition of the first assignment of error acquitting appellant of that charge renders the second assignment of error moot.
We reverse the conviction of the appellant for violation of R.C. 4511.19(A)(3), and affirm appellant's conviction for aggravated vehicular homicide and failure to stop and give information.
Judgment accordingly.
Mahoney, J., concurs.
Quillin, J., dissents.
Quillin, J., dissenting. R.C. 4511.19 provides in part:
"(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.
Code 3701-53-02, which recognized that blood-alcohol readings and breathalcohol readings are equivalents. Although this scientific fact is no longer set forth in the Ohio Administrative Code, it is nonetheless incontestable.
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.
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