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State v. Ruegsegger9/28/1989
ved his assignment of error by his no contest plea. The issue is preserved and ripe for review. The trial court had the opportunity to consider the evidence on this issue in a context which provided a determination of admissibility.
Two elements must be proved for the state to prevail:
(a) operation of a vehicle within the state; and
(b) at the time of the alleged offense, that the alleged offender possessed the prohibited alcohol concentration level. State v. Ulrich (1984), 17 Ohio App.3d 182, 17 OBR 372, 478 N.E.2d 812.
Defendant concedes that he was the driver during the accident; that the breathalyzer test was given within two hours and standard guidelines; and that the .131 result is accurate. The result is evidence of defendant's concentration of alcohol at the time of the offense. Ulrich, supra.
" he gravamen of the offense (R.C. 4511.19 ) is the operation of a vehicle within the state after ingestion of a sufficient amount of alcohol to produce an intoxilyzer test result which evidences an alcohol concentration level proscribed by statute within two hours of the time that the alleged offense occurred." (Emphasis added). Ulrich, supra, at 190, 17 OBR at 380, 478 N.E.2d at 821.
The trial court's finding that "if the test is taken within two hours of driving" and the test is reliable "then that is determinative" is erroneous. The test must be given within two hours of an "offense." Driving is not an offense. Driving with a prohibited concentration of alcohol is an offense. However, defendant denies that element of the crime. He claims he did not possess a prohibited alcohol concentration level at the time of the alleged offense and should have been allowed to present evidence of his innocence. Defendant's proffered testimony does not attack the legal sufficiency of the breath alcohol test result as in State v. Yoder (May 13, 1989), Tuscarawas App. No. 88AP100077, unreported, 1989 WL 63302. It goes to the weight of the evidence. As such, the evidence should have been allowed to be resolved by the jury. Compare Commonwealth v. Yapsuga (1987), 369 Pa.Super. 336, 535 A.2d 187; Bickerstaff v. Alabama (Ala.1987), 516 So.2d 800; Minnesota v. Parker (Minn.1988), 417 N.W.2d 643.
Defendant's sole assignment of error is sustained. The judgment of the trial court is vacated, and this cause is remanded to the court with instructions to afford appellant an opportunity to withdraw his no contest plea and proceed to trial.
Judgment vacated and cause remanded.
PUTMAN, P.J., and HOFFMAN, J., concur.
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