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Newark v. Lucas12/21/1988
LOCHER, J.
The issue presented in this action is whether appellee's blood results were properly suppressed by the trial court when the sole basis for suppression was that the blood was not withdrawn within two hours of the time of her alleged violations of the ordinance. For the reasons that follow, we hold that the test results were properly suppressed as to her alleged violation of the ordinance relating tsoperating a vehicle with a prohibited concentration of alcohol in her blood. We also hold that the test results were improperly suppressed as to her alleged violation of the ordinance relating to operating a motor vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse.
The ordinance allegedly violated in this action is obviously patterned after R.C. 4511.19. Thus, any analysis of the issue in this action requires references to that statute and any case law relevant thereto. In Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 72 O.O. 2d 44, 330 N.E. 2d 908, this court examined the admissibility at trial of the results of a Breathalyzer test. In paragraph two of the syllabus, we held:
"The results of a Breathalyzer test, administered pursuant to R.C. 4511.19, may only be admitted in evidence upon the affirmative establishment of facts supporting the following conditions:
"a. The bodily substance must be withdrawn within two hours of the time of such alleged violation.
"b. Such bodily substance shall be analyzed in accordance with methods approved by the Director of Health.
"c. The analyses shall be conducted by qualified individuals holding permits issued by the Director of Health pursuant to R.C. 3701.143.11
R.C. 4511.19, as analyzed in Cincinnati v. Sand, supra, provided in relevant part:
"No person who is under the influence of alcohol or any drug of abuse shall operate any vehicle, streetcar, or trackless trolley within this state.
"In any criminal prosecution for a violation of this section, or ordinance of any municipality relating to driving a vehicle while under the influence of alcohol, the court may admit evidence on the concentration of alcohol in the defendant's blood at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance withdrawn within two hours of the time of such alleged violation. * * * Such bodily substance 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 section 3701.143 of the Revised Code. Such evidence gives rise to the following:
"(A) If there was at that time a concentration of less than ten hundredths of one per cent by weight of alcohol, but more than five hundredths of one per cent by weight of alcohol, in the defendant's blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of alcohol, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
"(B) If there was at that time a concentration of ten hundredths of one per cent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of alcohol.
"(C) If there was at the time a concentration of five hundredths of one per cent or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of alcohol. * * *"
"`* * * The purpose of the presumption is to eliminate the nee
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