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Bowling Green v. Andrews3/3/1989
Per Curiam.
This matter is before the court on appeal from the April 19, 1988 judgment of the Bowling Green Municipal Court sentencing appellant, Kent S. Andrews, after a jury found him guilty of violating Bowling Green Municipal Code Section 73.01(A)(1).
On February 5, 1988, appellant was cited for driving while under the influence of alcohol in violation of Bowling Green Municipal Code Section 73.01(A)(1) and for driving with a willful and wanton disregard for safety in violation of Bowling Green Municipal Code Section 73.10. At the time that appellant was cited, he refused to submit to chemical testing to determine the alcohol content of his blood. The officer did, however, perform various field sobriety tests and determined that appellant was intoxicated.
A jury trial was held and appellant was found guilty of driving while intoxicated. A bench trial was held with regard to the second count and appellant was found not guilty of driving with a disregard for safety.
Appellant now appeals the conviction and sentence regarding the first count and asserts the following single assignment of error:
"The trial court abused its discretion and committed prejudicial error in suppressing portions of the testimony of defendant's expert."
Appellant sought to introduce into evidence the videotaped expert testimony of Walter Frajola, Ph.D., a chemist. Frajola's proffered testimony consisted basically of his projected calculations of the alcohol content in appellant's system based upon the amount of alcohol allegedly consumed and appellant's weight and Frajola's opinion as to the effect of the alcohol upon appellant.
The court below sua sponte ordered that portions of Frajola's testimony be stricken as irrelevant or because its probative value was outweighed by its potential prejudice, confusion of the issues, or misleading of the jury. Those portions of the testimony which were stricken concern prohibited alcohol concentration levels under the Bowling Green Municipal Code and the possible alcohol level in appellant's blood. The court concluded that this evidence was irrelevant in this case since appellant was charged with driving while under the influence, i.e., that his driving ability was impaired, not with having a specific blood-alcohol concentration. The judge ruled on the admissibility of this evidence prior to the trial to give appellant advance notice of the court's ruling, subject to review at the trial the next day.
Appellant correctly sets forth the law regarding this issue when he stated that the admissibility of evidence is a discretionary matter for the trial court which will be set aside by a reviewing court only upon a showing of an abuse of that discretion. Evid.R. 104(A); State v. Williams (1983), 4 Ohio St.3d 53, 4 OBR 144, 446 N.E.2d 444, paragraph one of the syllabus; and Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 219-220, 24 O.O.3d 322, 323, 436 N.E.2d 1008, 1010.
The basis for appellant's argument that this evidence was relevant is twofold. First, appellant notes that Bowling Green Municipal Code Section 73.01(C) permits the court to admit into evidence test results of the alcohol concentration in the defendant's blood, breath, or urine. That section does not limit the use of such evidence solely to violations of Section 73.01(A) which pertain to prohibited levels of alcohol concentration in the blood, breath, or urine. Therefore, appellant concludes, and we agree, that the legislature intended for such evidence to also be used to prove whether the defendant was driving while under the influence of alcohol irrespective of the alcohol concentration level.
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