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Columbus v. Robbins2/28/1989
McCORMAC, Presiding Judge.
Defendant-appellant, Robert A. Robbins, was charged with speeding, operating a motor vehicle under the influence of alcohol, and operating a motor vehicle while having a blood-alcohol count above .10, to wit: .20. Appellant entered not guilty pleas to all charges and waived his right to trial by jury.
At trial, objection was raised by appellant to the introduction of a document that purported to certify the calibration solution used to calibrate the BAsVerifier machine upon which defendant was tested. Additionally, at the close of appellee's case, appellant moved for acquittal pursuant to Crim.R. 29 and moved to strike the testimony of Columbus Police Sergeant Mills and Officer Paley, contending that they were incompetent to testify. Appellant's objection and motions were overruled by the trial court Appellant was found guilty of driving under the influence of alcohol and of the per se violation and not guilty of speeding.
Appellant appeals, raising the following assignments of error:
"1. The trial court erred when it allowed the testimony of Officer Paley and Sergeant Mills to be admitted when the officers never were shown to be competent pursuant to Ohio Rule of Evidence 601(C).
"2. The trial court erred when it allowed evidence of the results of the breathalyzer test performed on defendant-appellant to be admitted.
"3. The trial court erred in finding defendant-appellant guilty of operating a motor vehicle while under the influence of alcohol under Columbus City Code, Section 2133.01(A) [impaired driving] as it was against the manifest weight of the evidence."
On March 12, 1988, at approximately 2:50 a.m., Columbus Police Sergeant Mills observed appellant traveling southbound on Interstate 71 at a rate in excess of the speed limit. After pulling the defendant over and issuing a citation for speeding, Sergeant Mills called for a second cruiser to process the appellant. Shortly thereafter, Officer Paley arrived on the scene and, observing a strong odor of alcohol on appellant's breath, ordered appellant to undergo a field sobriety test. Officer Paley then cited the appellant for impaired driving in violation of Columbus City Code Section 2133.01(B)(2), and transported him to the Franklin County Jail where appellant underwent a BAC Verifier test.
By his first assignment of error, appellant contends that the arresting officers were incompetent to testify under Evid.R. 601(C) because it was not shown that they were in uniform and operating a properly marked police vehicle. Inasmuch as both branches of appellant's first assignment of error involve the same issue, they will be discussed together.
Evid.R. 601(C) provides:
"Every person is competent to be a witness except:
"* * *
"(C) An officer, while on duty for the exclusive or main purpose of enforcing traffic laws, arresting or assisting in the arrest of a person charged with a traffic violation punishable as a misdemeanor where the officer at the time of the arrest was not using a properly marked motor vehicle as definesby statute or was not wearing a legally distinctive uniform as defined by statute."
This section must be read in light of Evid.R. 104(A), which reads:
(A) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (B). In making its determination it is not bound by the rules of evidence except those with respe
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