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State v. Dehner6/4/1991
STEPHENSON, Presiding Judge.
This is an appeal from a judgment of conviction and sentence entered by the Chillicothe Municipal Court after a bench trial finding Penny S. Dehner, defendant below and appellant herein, guilty of violating R.C. 4511.19(A)(3), which proscribes the operation of a motor vehicle with a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of breath, a first degree misdemeanor. The following error is assigned:
"The trial court erred, and abused its discretion, in ruling that the results of an experiment performed by defendant's expert witness were not admissible."
The following facts pertinent to this appeal appear in the record. On May 10, 1989, at about 1:06 A.M., Robert Frizzell, an officer of the Chillicothe Police Department, was on patrol on the west side of Chillicothe, Ohio. He observed a black Mercury pull out of Central Center on to Western Avenue, accelerate rapidly and proceed west across the center line. The vehicle returned to the westbound lane and continued to accelerate to fifty-five miles per hour, the speed limit being thirty-five miles per hour. The vehicle slowed and turned into Governor's Place. The officer used his lights and siren and stopped the vehicle which was being driven by appellant.
As the officer approached the vehicle he observed that appellant's eyes were bloodshot and that her speech was slurred. After giving her field sobriety tests - e.g., a balance test and a finger to nose test - and observing that appellant was unsteady on her feet and had an odor of alcohol about her, Officer Frizzell arrested her for driving while under the influence of alcohol and transported her to the police station. At 1:27 A.M., an intoxilyzer test was given with a test result of .245. The prescribed forms utilized in giving of the test were introduced at trial.
Counsel for appellant had her examined by Larry M. Dehus, B.S., M.S., practicing as a forensic scientist. A report was issued to appellant's counsel and appellant intended to call the scientist as a defense witness at trial. The report recited, inter alia, the following:
"On July 12, 1989 Mrs. Dehner did present herself to this laboratory and the following experiment was performed:
"Mrs. Dehner consumed a one ounce drink of 86.8 proof Johnnie Walker Red Label Scotch that was poured over ice and consumed over a fifteen minute period. Mrs. Dehner was then observed by this examiner for a twenty minute period and then she was asked to produce a saliva specimen by spitting into a glass beaker.
"The saliva specimen was analyzed by gas chromatography and found to contain a significant level of ethyl alcohol. It is apparent that this alcohol was retained by her partial plate.
"The breath testing instruments, including the intoxilyzer, operate on the assumption that there is no residual alcohol in the mouth. If any residual alcohol persists in the mouth after the twenty minute waiting period, then a falsely high reading would be obtained on the intoxilyzer and the results would not be reliable.
"As you had related in your letter and as Mrs. Dehner confirmed to this examiner on the date of her visit, she had consumed 6 one ounce scotch on the rocks drinks in the twelve hours prior to her arrest and subsequent test for alcohol. She reported that the first drink was consumed at approximately 1:30 p.m. on May 9th, the second drink at 3:00 p.m. on May 9th, the third drink at approximately 3:45 p.m. on May 9th, the fourth drink at approximately 9:00 p.m. on May 9th, the fifth drink at approximately 10:30 p.m. on May 9th and the
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