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State v. Ruegsegger9/28/1989
MLLLIGAN, Judge.
On defendant's no contest plea, the New Philadelphia Municipal Court found defendant guilty of driving while intoxicated. R.C. 4511.19(A)(3). Defendant assigns as error:
"The trial court erred in ruling that as a matter of law, a jury shall be instructed to disregard any evidence of alcohol consumption between the time of an alleged driving offense and the administration of a BAC verifier test."
On January 17, 1988, between 12:05 and 12:15 a.m., a State Highway Patrol dispatcher on her way home observed defendant's vehicle and another chasing each other on County Road 69. Defendant's vehicle drove into a ditch. At 12:25 a.m., the dispatcher reported the accident. At 12:38 a.m., the investigating officer en route to the accident saw defendant's vehicle pass him by. The trooper stopped the vehicle and questioned defendant, as well as the other three passengers in the car. (Defendant was not driving the vehicle when stopped Defendant told the trooper that he was driving the car earlier when it had a "blowout" and went into the ditch. Defendant was subsequently arrested for driving under the influence of alcohol and given a breathalyzer test. He tested .131.
At pretrial, the state dismissed the R.C. 4511.19(A)(1) violation with prejudice leaving only the R.C. 4511.19(A)(3) charge. At the jury trial, during defendant's cross-examination of the arresting officer, the trial court made a sua sponte order in limine prohibiting defendant from presenting any evidence that defendant drank alcohol after the accident. The court stated:
"I don't want this jury to get the impression that Mr. Ruegsegger may have had a lesser concentration of alcohol in his breath when driving then he did when tested because the instructions that, if the test is taken within two hours of driving, if the test is reliable, if they find it was at least ten hundredths of sgram, then that is determinative of the amount in the breath at the time of driving * * *.
"If a person is going to try and sabotage a test by drinking alcohol after driving, that's why this (A)(3) charge is established. That's not gonna be allowed. You're screwing yourself if you drink. You may not ever be under the influence of alcohol or above the prohibited level at the time of driving. If you consume it afterwards and you test above within two hours, you've caused that to test yourself by your (inaudible)."
Defense counsel ceased questioning after entry of the above order in limine and the state rested its case. Defense counsel proffered for the record the testimony of defendant, and one of his passenger's Matt Foust. The proffer:
"MR. GARTRELL: Okay, I will. Well, the first witness would have been a Matt Foust. Matt was in the car at the time of the blowout out on County Road 69. Matt would have testified that the boys pushed the car--pushed the car out of the ditch and then drove it, just a number of feet to a--like a well road, a road back into an oil well where they changed the tire and they were there about a half an hour by the time they got it out and they did it after dark. Then Matt, in fact, Matt Foust, jacked up the car, that each would've--He would have testified that he changed the tire while the son of the man who owned the car, a Greg Jarvis, who was also present, while this Jarvis boy held a--a cigarette lighter. That was the only light. That's why it took a certain amount of time. That during that time there was beer in the car, that they didn't want to be driving around with beer in the car after this accident, obviously, and Bill Ruegsegger took that period of time to, you know, open and consume up to two or three
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