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State v. Morlock5/16/1990
CACIOPPO, Judge.
James O. Morlock was charged with violating R.C. 4511.19(A)(1), 4511.19(A)(3) and 4511.31. Prior to trial, Morlock moved to suppress any statements obtained in violation of his constitutional rights and to suppress evidence because the warrantless arrest lacked probable cause. At the motion hearing, Morlock limited his argument to the issue of whether the police officer had probable cause for the traffic stop. The trial court denied the motion to suppress.
On the day of trial, the state dismissed the charges of speeding and driving under the influence and proceeded only on the per se offense of operating a vehicle with a prohibited breath alcohol content. After voir dire, the trial court conducted an evidentiary hearing pursuant to Evid.R. 104. The trial court determined the preliminary question of admissibility of Morlock's intoxilyzer result, which the state proffered. During the hearing, Morlock objected to the state presenting foundation evidence out of the hearing of the jury. The trial court overruled the objection on the basis of Evid.R. 104(A), (C) and (E). The trial court assured Morlock that evidence relevant to weight and credibility of the intoxilyzer result could be presented to the jury.
The trial court determined that the intoxilyzer result was admissible. The jury found Morlock guilty of the per se offense. Morlock was sentenced for violating R.C. 4511.19(A)(3).
Morlock appeals.
"The court erred when it refused to permit the jury to hear the foundational evidence related to the state's compliance with intoxilizer testing procedures."
Morlock contends that the trial court erred in conducting a hearing concerning the intoxilyzer result pursuant to Evid.R. 104(A). Morlock argues that the actual intoxilyzer result only becomes relevant evidence if the state proves the underlying conditions pursuant to Evid.R. 104(B). Those underlying conditions are set forth in Ohio Adm.Code 3701-5301 et seq. Specifically, Morlock argues that errors in the administration of the intoxilyzer test affect the reliability and credibility of the test result. Therefore, the state should present to the jury evidence of compliance with the Ohio Administrative Code. If the state fails to establish substantial compliance with the Ohio Administrative Code, the intoxilyzer result is not relevant evidence. If the state establishes substantial compliance, the intoxilyzer result is admissible but the credibility of the result is a question of fact for the jury.
The state relies upon State v. Dvorak (1989), 65 Ohio App.3d 44, 582 N.E.2d 1027, as authority to refute Morlock's argument. The state accurately excerpts language from the Dvorak majority opinion, but Dvorak is not analogous to the case sub judice. Dvorak presented this court with a question concerning suppression and/or admissibility of the chemical test result of a bodily substance when a person is charged with a per se offense contained in R.C. 4511.19(A)(2), (3) or (4). The case sub judice concerns the burden of proof upon the state when a person is charged under R.C. 451 1.19(A)(3).
"In order to sustain a conviction under R.C. 4511.19(A)(3), there must be proof beyond a reasonable doubt that the defendant was operating a vehicle within this state and that at the time he had a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath. The relevant evidence is limited to that evidence having any tendency to make the existence of either or both of these facts more probable or less probable." State v. Boyd (1985), 18 Ohio St.3d 30, 18 OBR 68, 479 N.E.2d 850,
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