State v. Mendieta7/13/1984
DOUGLAS, J.
This case comes before this court on appeal from the judgment of the Bowling Green Municipal Court.
On October 1, 1983, appellant, Ferran O. Mendieta, was arrested for speeding in violation of R.C. 4511.21 and for driving under the influence of alcohol in violation of R.C. 4511.19(A)(1) and (3). On November 28, 1983, appellant's case was tried to the court. Appellant was found guilty of all three charges and was, subsequently, sentenced thereon.
From that judgment, appellant appeals, presenting the following assignments of error:
"1. The trial court erred in admitting hearsay testimony as to the contents of an intoxilyzer simulator solution affidavit and as to a notation of the date of the first use of an intoxilyzer simulator solution.
"2. The trial court erred in taking judicial notice of the meaning of a digital reading from an intoxilyzer.
"3. The trial court erred in finding defendant guilty of driving under the influence in violation of Ohio Revised Code Section 4511.19(A)(1).
"4. The trial court erred in finding defendant guilty of driving under the influence under both Ohio Revised Code Sections 4511.19(A)(1) and 4511.19 (A)(3).
"5. The trial court erred in finding defendant guilty of speeding, in violation of Ohio Revised Code Section 4511.21."
In his first assignment of error, appellant contends that the trial court erred in admitting into evidence testimony regarding certain notations made in the intoxilyzer logbook by police officers other than the officer testifying. In support of his contention, appellant urges our consideration of Evid. R. 803(8) which provides as follows:
"The following are not excluded by the hearsay rule * * *:
"(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b)
Upon consideration of the foregoing language, we find Evid. R. 803(8) inapplicable to the admission of testimony regarding the notations entered into an intoxilyzer logbook for the reason that such notations are not "reports * * * matters observed," but rather are records of ministerial acts kept on a routine basis by law enforcement authorities. For that reason, we find such testimony admissible pursuant to Evid. R. 803(6) which provides as follows:
"The following are not excluded by the hearsay rule* * *:
"(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term 'business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." (Emphasis added.)
We, therefore, find appellant's first assignment of error not well-taken. Contra State v. Emch (1982), 7 Ohio App.3d 7.
In his second assignment of error, appellant contends that the trial court erred in taking judicial notice of the meaning of the intoxilyzer reading. In support of his contention, appe
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