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State v. Dvorak10/11/1989
dence on the calibration of an intoxilyzer is required as a foundation for the issue of whether the intoxilyzer was in proper working order. Evidence which lacks a foundation is not relevant. In the case before us, the prosecution's burden in proving that the instrument met the calibration requirements was minimal. The prosecution could have admitted certified copies of the police logs. Even though the prosecution presented no evidence on calibration, the trial court ruled that the test results were admissible because Dvorak failed to timely challenge the test results prior to trial.
The trial court erred in automatically admitting the test results where the prosecution failed to lay a foundation that the intoxilyzer was in proper working order pursuant to ODH regulations. Dvorak's failure to move to suppress the test results did not waive the prosecution's burden of laying a foundation for the admission of the test results at trial.
In State v. Earle (Aug. 2, 1989) Summit App. No. 13957, unreported, 1989 WL 86321, we addressed whether a pretrial motion alleging that the state failed to comply with ODH regulations in taking a breath-alcohol test should be brought as a motion to suppress or a motion in limine. We held that the proper vehicle was a motion to suppress. We made no disposition as to whether the same evidence taken at a suppression hearing may be used at trial to contest the accuracy of the results of the blood-alcohol tests. Nor did we make a disposition as to whether the same evidence taken at a suppression hearing must be introduced at trial as a foundational requirement to the admissibility of the blood-alcohol test pursuant to Evid.R. 104.
In Earle, we stated that a statutory exclusionary rule exists which requires a challenge to the result of a breath-alcohol test, when the state has not complied with the ODH regulations in prosecutions under R.C. 4511.19(A)(2), (3) and (4). In the case sub judice, Dvorak does not challenge the intoxilyzer test results as an improper seizure, but merely objects to the admission of those results into evidence at trial without the state laying a proper foundation as the Evidence Rules require.
In the case before us, a jury found there was insufficient evidence to convict Dvorak of driving under the influence of alcohol. The only evidence on which the jury convicted Dvorak was admitted at trial without a proper foundation and was, therefore, not relevant. Dvorak was also denied an opportunity on cross-examination to challenge the authenticity and credibility of the test results.
In effect, Dvorak was denied a jury trial in that the critical issue at trial, the accuracy of the test, was determined by the trial judge in admitting the tessresult unchallenged. For this reason, I would reverse the trial court's decision.
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