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City of Columbus v. Dials11/29/2005
GILBERT]: No.
[MR. BEATTY]: So what are they admissible for?
[OFFICER GILBERT]: For developing my probable cause. It's just one extra thing added onto the probable cause.
[MR. BEATTY]: So you offered the PBT to Mr. Dials?
[OFFICER GILBERT]: Correct.
[MR. BEATTY]: What was his response to your offer?
[OFFICER GILBERT]: "F--- you. I'm not taking it. I'm going to get paid out of this, " you know, "this is bull---, man," you know, "I know and you know me," and it just continued on. (Tr. 229-230.)
{ } In City of Maumee v. Anistik (1994), 69 Ohio St.3d 339, 632 N.E.2d 497, the Supreme Court of Ohio addressed the issue of the admissibility of a refusal of a portable breath test. The Supreme Court of Ohio determined that "under certain circumstances, evidence of a refusal to submit to a chemical test can be used against a defendant at trial." Id. at 342, citing Columbus v. Mullins (1954), 162 Ohio St. 419; Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 122, 239 N.E.2d 41, 44 O.O.2d (Emphasis omitted.)
{ } The Court further explained that:
Where a defendant is being accused of intoxication and is not intoxicated, the taking of a reasonably reliable chemical test for intoxication should establish that he is not intoxicated. On the other hand, if he is not intoxicated * * * such a test will provide evidence for him; but, if he is intoxicated, the test will provide evidence against him. Thus, it is reasonable to infer that a refusal to take such test indicates the defendant's fear of the results of the test and his consciousness of guilt, especially where he is asked his reason for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt.
Maumee at 343, quoting Westerville at 122.
{ } In the case before us, the issue of whether appellant refused to take a portable breath test and the potential reasons why appellant may have refused the test is a relevant issue to be heard by a trier of fact. See State v. Marsh, Belmont App. No. 04 BE 18, 2005-Ohio-4690 at . Because appellant's refusal is probative of his consciousness of guilt, it was entirely proper for the jury to hear testimony from Gilbert regarding appellant's refusal. Therefore, appellant's second assignment of error is overruled.
{ } We next consider appellant's third assignment of error. Appellant asserts that the trial court committed reversible error when it allowed Gilbert to define the term "impairment."
{ } Over the objection of appellant, the City offered the following opinion of Gilbert as to the meaning of the term impairment:
Officer Gilbert: Impairment is my ability to take everything into consideration as far as somebody's actions and somebody's availability to operate a vehicle. (Tr. 346-348.)
{ } Appellant argues that the trial court, in permitting the City to allow Officer Gilbert to define "impairment," unfairly prejudiced appellant.
{ } However, we find that the definition did not prejudice appellant because the trial court cured any error with the definition when it gave the jury its instructions. See State v. Jones (2000), 90 Ohio St.3d 403, 413, 39 N.E.2d 300. The trial court properly defined "under the influence," and accurately conveyed to the jury what it could consider in making its determination of whether appellant was in fact "under the influence." By properly defining "under the influence" the trial court remedied any confusion with Gilbert's definition of "impairment." The trial court instructed the jury that it must accept the instructions as they are
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