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State v. Mayer10/5/2000
JUDGMENT: Affirmed
Defendant-appellant Philip L. Mayer appeals his conviction and sentence on operating a motor vehicle while under the influence of alcohol, in violation of R.C. 4511.19(A)(3), entered by the Ashland Municipal Court, following a jury's verdict of guilty. The State of Ohio is plaintiff-appellee.
STATEMENT OF THE FACTS AND CASE
On October 13, 1999, at 1: 57 a.m., appellant was arrested for operating a motor vehicle while under the influence of alcohol. Appellant was given a breath test as a result of his arrest and tested .191 grams of alcohol per 210 liters of breath. Appellant was charged with violating R.C. 4511.19(A)(1) and (A)(3). Appellant plead not guilty at his arraignment. Appellant later filed a pretrial motion to suppress the evidence, which the trial court overruled. The case came on for jury trial on February 2, 2000, on the R.C. 4511.19(A)(3) charge alone. At trial, Village of Loudonville Police Officer Ronald Goltry testified he pulled into the Mohican Camp Grounds to conduct a security check and observed a vehicle parked in the roadway, leading back into a cabin and teepee area. Officer Goltry exited his cruiser, approached the vehicle, and found appellant asleep at the wheel, seatbelt on, seat reclined, shoes off, headlights on, keys in the ignition, and motor running. Officer Goltry woke appellant up and smelled alcohol on or about appellant's person when he opened the door. Officer Goltry requested appellant submit to field sobriety tests, but appellant refused. According to Officer Goltry, appellant became belligerent, was arrested for OMVI, and taken to the Loundonville Police Department. There, he was given a breath test. Officer Goltry testified, ".191 was the breath test sample", and the legal limit in Ohio was ".01." T. at 72. Deputy Christopher LeFever of the Ashland County Sheriff's Department assisted Officer Goltry in appellant's arrest. Deputy LeFever testified appellant's breath test result was ".191." T. at 81. Patrol Andrew Kusik of the Loundonville Police Department testified he was the senior operator of the BAC Data Master at the Loundonville Post. He ran calibration checks on the breath testing machine on October 10, 1999, and October 17, 1999. Patrolman Kusik stated, in his opinion, the machine should have been working properly on October 13, 1999, the date appellant was tested. T. at 90-96. At the close of appellee's case, appellee moved to admit its Exhibits 1-9 into evidence. Appellant objected, stating "neither one of the officers testified that the defendant had .191 grams of alcohol per 210 liters of breath." T. at 97. The trial court agreed, but, nevertheless, overruled appellant's motion for acquittal and admitted appellee's nine exhibits. Among the exhibits admitted was the Data Master test report form. (Exhibit 2). That report indicated appellant's test result was ".191 GRAMS OF ALCOHOL PER 210 LITERS OF BREATH." Appellant testified he was not intoxicated when he first started driving, but after a short while he began to feel the effects of the alcohol he consumed. As a result, he pulled off the road and parked in a safe place to sleep it [the alcohol] off. T. at 107-108. After closing argument, the trial court instructed the jury, in pertinent part, if appellee proved beyond a reasonable doubt the essential elements appellant was operating a vehicle with a concentration of .10 of a gram or more by weight of alcohol per 210 liters of breath, their verdict must be guilty. However, if appellee failed to prove beyond a reasonable doubt any one of the essential elements appellant was operating a vehicle with the concentration of .10 of a gram by weight of alcohol per 210 liters of breath, their verdict must be not gu
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