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State v. Kilbarger4/28/1999
JUDGMENT: Affirmed
Appellant Anthony L. Kilbarger appeals a judgment of the Lancaster Municipal Court convicting him of driving while intoxicated (R.C. 4511.19)(A)(1)), and driving under suspension (R.C. 4507.02 (D)(1)):
"ASSIGNMENTS OF ERROR "I. THE STATE OF OHIO FAILED TO PROVIDE THE EXPERT TESTIMONY REQUIRED BY NEWARK V. LUCAS, 40 OHIO ST. 3D 100 (1988), AND IT WAS, THEREFORE, ERROR FOR THE TRIAL COURT TO ADMIT THE BREATH ALCOHOL TEST IN EVIDENCE. "II. IMPOSITION OF DEFENDANT-APPELLANT'S SENTENCE IN THIS CASE VIOLATES THE DOUBLE JEOPARDY CLAUSES OF BOTH THE OHIO AND UNITED STATES CONSTITUTIONS."
On May 30,1997, appellant was involved in a single car accident when his pickup truck went off the right side of the roadway on U.S. Route 33. The truck struck an embankment, and suffered heavy damage. From observation of appellant and the administration of field sobriety tests, the State Trooper investigating the accident determined that appellant was impaired by alcohol. A check of the Bureau of Motor Vehicle's record revealed that appellant's license had been suspended from June 13, 1995, through June 5, 2004. Appellant was taken to the State Highway Patrol Post, where he was administered a breath alcohol test. The test revealed .191 grams of alcohol by weight per 210 liters of his breath. Appellant was then charged with driving under the influence of alcohol, driving with a prohibited breath alcohol content, driving under suspension, and failure to control. Additionally, he was placed under an administrative license suspension for testing over the prohibited level. Appellant appealed the ALS suspension. He also filed a motion to suppress the results of the breath test. He later amended the motion to suppress to include an allegation that the breath test was administered more than two hours after the accident. A suppression hearing was scheduled August 28, 1997. While the parties represent to this court that the ALS appeal was heard at the same time, no transcript of this hearing was requested or prepared. Subsequent to the hearing date, the court filed an entry finding that the State did not establish that the breath test was obtained within two hours of the accident. The court dismissed the charge of driving with a prohibited breath alcohol content pursuant to R.C.4511.19 (A)(3). The court did not rule on the ALS. After many continuances, the trial commenced on March 31, 1998. The charge of driving under the influence of alcohol was tried to the jury. The charge of driving under suspension was tried to the court. At trial, the State used evidence of appellant's breath test results by way of expert testimony, pursuant to Newark v. Lucas (1988), 40 Ohio St. 3d 100. Following trial, appellant was convicted on both charges. On the conviction for driving under the influence of alcohol, he was fined $1000, and sentenced to one year incarceration. Further, his driver's license was suspended for ten years, from May 30, 1997 to May 30, 2007, as this was his third DUI offense in six years. Thirty days of the incarceration was suspended on condition of good behavior and total sobriety. On the charge of driving under suspension, appellant was sentenced to thirty days incarceration, consecutive to the driving under the influence charge. He was fined $250.
I.
Appellant argues that the court erred in admitting the result of his breath test through expert testimony. Appellant argues that the testimony of Dr. Craig Sutheiner was inadmissible because the evidence did not support the hypothetical as presented to the expert. Appellant argues that there was no evidence of the time of the accident, or of his height and weight. He also argues that the evidence was inad
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