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Columbus v. Taylor10/26/1988
LOCHER, J.
The primary issue presented in this action is whether appellee's conviction for violating Section 2133.01(b)(2) of the Columbus City Code was proper. We hold that he was properly convicted and, accordingly, reverse the judgment of the court of appeals and reinstate the judgment of the trial court.
By final judgment entry of the trial court, appellee was convicted and sentenced for violating Section 2133.01 (b)(2). Under this per se offense, the prosecution in order to sustain a conviction must prove beyond a reasonable doubt that the defendant was operating a vehicle within the city and that at the time of operation had a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath. See, e.g., State v. Boyd (1985), 18 Ohio St.3d 30, 18 OBR 68, 479 N.E. 2d 850. It is well-established that a defendant may challenge the accuracy of his specific test results. State v. Tanner (1984), 15 Ohio St.3d 1, 15 OBR 1, 472 N.E. 2d 689. See, also, State v. Vega (1984), 12 Ohio St.3d 185, 12 OBR 251, 465 N.E. 2d 1303. In the cause sub judice, appellee's test on the BAC Verifier registered a reading of .118, which is beyond the legal limit established by the General Assembly and by the Columbus City Council.
The main issue upon which the court of appeals based its judgment of reversal concerned the exclusion of the report and testimony of an expert and his simulated testing of appellee on a BAC Verifier machine. This simulated testing took place approximately three months after the incident in question. The trial court initially excluded the testimony and report of the expert due to appellee's failure to provide the prosecution with a timely copy of the expert's report. However, the trial court later modified that ruling and excluded the testimony concerning the simulated testing on grounds of irrelevance and possible misleading effect.
Evid. R. 402 provides:
"All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of OhiosEvidence which is not relevant is not admissible."
Evid. R. 702 specifically refers to admissibility of scientific testimony:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise."
In a case decided before the adoption of the Evidence Rules, this court held:
"1. Evidence of experiments performed out of court, tending to prove or disprove a contention in issue, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence.
"2. The admission or rejection of evidence as to such experiments is a matter peculiarly within the discretion of the trial judge, and when such discretion has not been palpably abused reviewing courts will not interfere." (Emphasis added.) St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio RR. Co. (1935), 129 Ohio St. 401, 2 O.O. 396, 195 N.E. 861, paragraphs one and two of the syllabus.
It is axiomatic that a
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