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State v. Schwarz3/19/2003
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, David L. Schwarz ("Appellant"), appeals a judgment of conviction from the Wadsworth Municipal Court for a violation of R.C. 4511.19. We affirm.
I.
Appellant was arrested and charged with a violation of R.C. 4511.19, Driving Under the Influence ("DUI"). At the time of arrest, the arresting agency administered a breath test to Appellant using a BAC Datamaster. The test indicated a blood alcohol content of .104 grams of alcohol per 210 liters of breath. At arraignment, Appellant entered a plea of not guilty. The matter proceeded to trial with the jury returning a verdict of guilty on April 26, 2002. Appellant timely appealed, raising four assignments of error. We address the first three assignments of error together for ease of discussion.
II.
Assignment of Error No. 1
"THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT DENIED HIM THE RIGHT TO ATTACK THE GENERAL RELIABILITY OF THE BREATH TESTING MACHINE IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS."
Assignment of Error No. 2
"THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT DENIED HIM THE RIGHT TO ATTACK THE GENERAL RELIABILITY OF THE BREATH TESTING MACHINE USING AN EXPERT WITNESS WITH RELEVANT, MATERIAL INFORMATION."
Assignment of Error No. 3
"THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT DENIED HIM THE RIGHT TO ATTACK THE GENERAL RELIABILITY OF THE BREATH TESTING MACHINE AND THE OHIO DEPARTMENT OF HEALTH BREATH TESTING PROGRAM."
In the first two assignments of error, Appellant claims that the trial court's ruling disallowing an evidentiary attack on the general reliability of the BAC Datamaster violated his rights afforded by the Ohio Constitution, which vests plenary authority to establish rules of evidence in the Supreme Court. Further, Appellant states that R.C. 4511.19 violates the doctrine of separation of powers, "§6 of the United States Constitution," and "§14" of the United States Constitution. In making these arguments, Appellant concedes that his position is contrary to the holding of State v. Vega (1984), 12 Ohio St.3d 185. In his third assignment of error, Appellant explains in detail his expert's proffered testimony and offers it as "a compelling reason" to disregard the doctrine of stare decisis. We decline to do so.
In determining blood alcohol content, the bodily substances to be tested shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director of health pursuant to R.C. 3701.143. R.C. 4511.19(D)(1). For purposes of R.C. 4511.19, "the director of health shall determine, or cause to be determined, techniques or methods for chemically analyzing a person's blood, urine, breath, or other bodily substance in order to ascertain the amount of alcohol, a drug of abuse, or alcohol and a drug of abuse in the person's blood, urine, breath, or other bodily substance. The director shall approve satisfactory techniques or methods, ascertain the qualifications of individuals to conduct such analyses, and issue permits to qualified persons authorizing them to perform such analyses." R.C. 3701.143. The BAC Datamaster is approved by the director of health as an instrument for evidential breath testing when determining whether the concentration of alcohol in the blood is prohibitive as defined by R.C. 4511.19. Ohio Adm.Code 3701-53-02(A)(4).
The Gen
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