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State v. MacCracken9/12/1990
e 3701-53-08 provides as follows:
"Persons who are issued a permit under rule 3701-53-09 shall be subject to periodic on-site surveys by representatives of the director of health, and shall accept samples, perform tests and report the results of such tests to the director or his authorized representative. These tests shall be used to evaluate the accuracy of the analyses performed by the permit holder."
The purpose of this regulation is to assess the accuracy of the person giving the test. It is not to assess the accuracy of the breath-testing instrument.
In MacCracken's second challenge to his conviction, MacCracken contends that he was denied his constitutional right to a trial by jury because the trial court precluded the jury from hearing evidence on the proficiency tests. He argues that our decision in Dvorak, supra, precluded any cross-examination or evidence on the accuracy of the BAC because the state met all foundational requirements for introducing the BAC results in the suppression hearing.
In Dvorak, supra, we stated in relevant part:
"If a defendant fails to have the evidence suppressed pretrial, that defendant waives any requirement upon the state to establish additional foundation for the evidence at trial. The evidence is admissible at trial without the state further establishing compliance with the ODH regulations. Also, the defendant may not contest the evidence through cross- examination, because to allow such contest would permit the defendant to challenge the evidence at trial rather than pretrial as mandated. We believe that these conclusions are inescapable in view of the holding in [State v.] Earle [(Aug. 2, 1989) Summit App. No. 13957 unreported, 1989 WL 86321], supra, and the clear provisions of Traf.R. 11(B) and 11(F)." Id. at 46, 582 N.E.2d at 1028.
Dvorak says nothing about introducing evidence regarding the proficiency test. Unless the same calibration solution was used in the proficiency test so as to introduce a question of fact on the accuracy of the instrument itself, the results of the proficiency tests are of minimal, if any, relevance. However, the trial court's granting of a motion in limine excluding the results of the proficiency tests was merely a temporary prohibition. State v. Grubb (1986), 28 Ohio St.3d 199, 202, 28 OBR 285, 288-289, 503 N.E.2d 142, 145-146. If the case had gone to trial, then it would have been incumbent upon MacCracken to introduce the evidence by proffer or otherwise. Id. At that time, the trial court could have made its final determination and proper objections made. Here, when MacCracken voluntarily entered his no contest plea and was found guilty, he waived any possibility of error.
Based on the foregoing reasons, we overrule MacCracken's assignment of error. The decision of the trial court is affirmed.
Judgment affirmed.
BAIRD, P.J., and CIRIGLIANO, J., concur.
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