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State v. Morlock5/16/1990
fusing to permit the jury to hear foundation evidence, for the purpose of determining admissibility of the intoxilyzer result, when Morlock was permitted to challenge before the jury the validity of that specific result.
The first assignment of error is overruled.
"The court erred when the overruled defendant's motion for an acquittal when the state presented no evidence that defendant had consumed any alcohol."
Morlock contends that the state must produce some evidence that a person charged with the per se offense under R.C.4511.19(A)(3) consumed alcohol. Absent some evidence of alcohol, that person cannot be convicted of an alcohol-related crime.
Logically, a person who consumes no alcohol will not test in excess of the breath alcohol limit established in R.C. 4511.19(A)(3).
"* * * Accordingly, a person who has not consumed any alcohol and, yet, is confronted with the result of a test which indicates that he has an alcohol concentration in excess of the statutory limit, should be able to prove that he had nothing to drink. That evidence is relevant for the limited purpose of attempting to prove that something went awry with this particular test - in the case of a urinalysis, for example, perhaps specimens were inadvertently exchanged in the laboratory - even though the accused is unable to say what happened. This same situation would apply had the accused consumed a small quantity of alcohol. And, in each instance, expert testimony is available to assist the trier of fact to understand the evidence - to show that this accused could not have produced the test result claimed by the prosecution under these circumstances. The testimony of both the expert and the accused are limited to addressing the validity of his test; it would not be admissible, for example, as tending to show that the accused was not under the influence of alcohol, since that is not the charge under the per ssprovisions." Columbus v. Day, supra, 24 Ohio App.3d at 174-175, 24 OBR at 265, 493 N.E.2d at 1004.
Morlock introduced no evidence concerning alcohol consumption which challenged the validity of his intoxilyzer result. Therefore, the trial court did not err in overruling the motion for acquittal.
The second assignment of error is overruled.
"The court erred when it determined that the mere evidence of speeding was sufficient probable cause to arrest the appellant for driving under the influence of alcohol."
Morlock contends that the trial court erred in not suppressing evidence or dismissing the charges against him when the only evidence of probable cause for his arrest was speeding. We agree with the authority which Morlock cites. State v. Taylor (1981), 3 Ohio App.3d 197, 198, 3 OBR 224, 225, 444 N.E.2d 481,. 481; see, also, State v. Finch (1985), 24 Ohio App.3d 38, 24 OBR 61, 492 N.E.2d 1254. However, Morlock limited his motion to suppress to a challenge of probable cause for the traffic stop. He did not challenge the probable cause for his arrest under R.C. 4511.19(A)(1) or (3).
The third assignment of error is overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.
CIRIGLIANO, J., concurs.
REECE, P.J., concurs in judgment only.
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