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State v. Davis11/30/1983
BROGAN, P.J.
In the early morning hours of June 13, 1982, Howard C. Davis, defendant-appellant herein, was involved in a fatal automobile accident on U.S. Route 68 in Clark County, Ohio. Davis was operating his vehicle southbound when it ran head-on into an automobile travelling north, resulting in the death of Jeffrey Fair, a passenger in the northbound vehicle. Davis was subsequently indicted on two counts. He was charged on Count One with aggravated vehicular homicide in violation of R.C. 2903.06, and on Count Two with involuntary manslaughter in violation of R.C. 2903.04(B).
A jury trial was commenced on February 24, 1983. Following three days of trial the jury returned a verdict of not guilty of aggravated vehicular homicide and its lesser included offense, vehicular homicide. On Count Two, to wit, involuntary manslaughter, the jury returned a verdict of guilty as charged. The judge sentenced the defendant to an indeterminate sentence of not less than three nor more than ten years in the Ohio State Reformatory. From this judgment and sentence the defendant appeals seeking reversal of the conviction or in the alternative a remand for resentencing.
Appellant set forth four assignments of error, the first of which being:
"The trial court erred when it overruled the appellant's motion to suppress the results of appellant's blood analysis as to alcohol content, when said testing failed to comply with Section 4511.19, Revised Code of Ohio."
Following the accident the defendant was transported to Mercy Medical Center where a lab technician withdrew blood from the defendant at the direction of a treating physician. The blood sample was delivered to another technician for analysis. The test results showed appellant had a blood alcohol content of .17. The state offered no evidence as to how long after the alleged violation occurred that the blood was withdrawn. At trial defense counsel objected to the admission of the blood test results on the ground that the test was not conducted in accordance with the requirements of R.C. 4511.19 and Ohio Adm. Code 3701-53-05. The trial court overruled this objection.
R.C. 4511.19 provides in part:
"No person who is under the influence of alcohol or any drug of abuse * * * shall operate any vehicle, streetcar, or trackless trolley within this state.
"In any criminal prosecution for a violation of this section, or ordinance of any municipality relating to driving a vehicle while under the influence of alcohol, the court may admit evidence on the concentration of alcohol in the defendant's blood at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance withdrawn within two hours of the time of such alleged violation. When a person submits to a blood test at the request of a police officer under section 4511.191 of the Revised Code, only a physician or a registeresnurse shall withdraw blood for the purpose of determining the alcoholic content therein. This limitation does not apply to the taking of breath or urine specimens. Such bodily substance shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director of health pursuant to section 3701.143 of the Revised Code. Such evidence gives rise to the following:
"* * *
"(B) If there was at that time a concentration of ten hundredths of one per cent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of alcohol." (Emphasis added.)
Appellant cl
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