Summary
In State v. Ward (1984), 15 Ohio St.3d 355, the Ohio Supreme Court held that intoxilyzer calibration logs are admissible pursuant to R.C. 2317.41 (which provides for the admissibility of official reports) and Evid.R. 803(8).
Summary of this case from State v. MortonOpinion
Nos. 84-613 and 84-800
Decided December 31, 1984.
Criminal law — Motor vehicles — Driving while intoxicated — Evidence — Certified copies of police logs showing calibration of intoxilyzer admissible, when — R.C. 4511.19.
O.Jur 3d Criminal Law § 2250.
Certified copies of police logs showing calibration of intoxilyzer equipment are admissible against a defendant in a prosecution for violation of R.C. 4511.19, despite the absence of the calibrating officer at trial.
CERTIFIED by the Court of Appeals for Tuscarawas County.
CERTIFIED by the Court of Appeals for Ottawa County.
The two cases involved herein present the same question and are, therefore, decided together.
In case No. 84-613, Robert G. Ward, appellant, was charged in the New Philadelphia Municipal Court with operating a motor vehicle under the influence of alcohol, in violation of R.C. 4511.19, and with speeding. Appellant pleaded not guilty to both charges and filed a motion to suppress the results of an intoxilyzer test taken at the time of his arrest. His motion, treated by the trial court as a motion in limine, was overruled.
At trial, certified copies of a police log showing calibration of the intoxilyzer used to test appellant were admitted into evidence. The person who performed the calibration tests did not testify and appellant was subsequently convicted of both charges.
Appellant appealed to the Court of Appeals for Tuscarawas County, claiming that the calibration logs are hearsay under Evid. R. 803(8) and were improperly admitted into evidence. The court of appeals affirmed the judgment of the trial court and held that the intoxilyzer calibration logs were admissible. The court of appeals in effect relied on R.C. 2317.42 and State v. Walker (1978), 53 Ohio St.2d 192 [7 O.O.3d 368], and found these authorities to be consistent with Evid. R. 803(8). The court of appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Hancock County in State v. Emch (1982), 7 Ohio App.3d 7, certified the record of the case to this court for review and final determination.
In case No. 84-800, Mark Miller, appellant, was charged in the Port Clinton Municipal Court with operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1), and with having a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred and ten liters of his breath in violation of R.C. 4511.19(A)(3). Appellant pleaded not guilty to both charges and filed a motion to suppress the results of an intoxilyzer test taken on April 16, 1983. His motion was overruled. Thereafter, the court dismissed the charge alleging violation of R.C. 4511.19(A)(1), and appellant entered a no contest plea on the remaining charge. Appellant was convicted of a violation of R.C. 4511.19(A)(3).
Appellant appealed his conviction to the Court of Appeals for Ottawa County. His appeal was based on the admission into evidence of a certified copy of a police log book, containing a report of the calibration taken on April 10, 1983 of the intoxilyzer used to test appellant. Appellant alleged that the calibration log was inadmissible hearsay under Evid. R. 803(8).
The court of appeals held that the intoxilyzer calibration logs were admissible pursuant to R.C. 2317.42, Evid. R. 803(8) and State v. Walker, supra. The court of appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Hancock County in State v. Emch, supra, certified the record of the case to this court for review and final determination.
Mr. James A. Range, city prosecutor, for appellee state of Ohio in 84-613.
Mr. Ralph L. Oates and Mr. James M. Looker, for appellant Robert G. Ward in 84-613.
Ms. Barbara Petersen, assistant prosecuting attorney, for appellee state of Ohio in 84-800.
Mr. Thomas A. Mathews, for appellant Mark Miller in 84-800.
The question presented by these appeals is whether certified copies of police logs showing calibration of intoxilyzer equipment are admissible against a defendant in a prosecution for violation of R.C. 4511.19. For the foregoing reasons, we hold that such copies are admissible despite the absence of the calibrating officer at trial.
Before this court's adoption of the Ohio Rules of Evidence in July 1980, the question at bar was governed by R.C. 2317.42 and our decision in State v. Walker, supra.
"Official reports made by officers of this state, or certified copies of the same, on a matter within the scope of their duty as defined by statute, shall, in so far as relevant, be admitted as evidence of the matters stated therein." R.C. 2317.42.
This court in Walker interpreted that statute and held:
"In a criminal prosecution for violation of R.C. 4511.19 or a municipal ordinance relating to driving a vehicle while under the influence of alcohol, certified copies of pages from a permanent log book maintained by a police department in accordance with regulations promulgated by the Director of Health pursuant to R.C. 3701.143 are admissible in evidence as an exception to the hearsay rule under R.C. 2317.42."
Thus, before July 1980, police logs showing calibration of intoxilyzer equipment were clearly admissible as an exception to the rule against hearsay.
This court's purpose in adopting the Ohio Rules of Evidence was to clarify and codify the existing law. Evid. R. 102 enunciates that purpose and provides in part: "These rules shall be construed to state the common law of Ohio unless the rule clearly indicates that a change is intended and shall not supersede substantive statutory provisions." We find no clear indication in the Rules of Evidence of an intention to change the effect of R.C. 2317.42 and Walker, supra.
Appellants' contention that Evid. R. 803(8) must be construed to supersede R.C. 2317.42 and to overrule Walker has no merit. Evid. R. 803(8) is the public records and reports exception to the rule against hearsay and provides:
"Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness."
Appellants rely solely on the language, "* * * excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant * * *," to argue that R.C. 2317.42 and Walker are defunct, and that the logs in this case were improperly admitted at trial. The above-quoted language, in and of itself, does not clearly indicate the intent to change the preexisting common law. The staff notes to Evid. R. 803(8) expressly indicate that R.C. 2317.42 is to remain in effect as an exception to the rule against hearsay: "* * * [T]he rule [803(8)] permits introduction of public reports subject to the exceptions enumerated. Several Ohio statutory provisions accomplish a similar result. See, for example, R.C. 2317.39 and 2317.42 regarding public records." Furthermore, there is no mention in the staff notes of any intent to change the common law enunciated in Walker.
We interpret the exclusionary language of Evid. R. 803(8) as consistent with the law prior to its adoption. The phrase, "excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel * * *," prohibits the introduction of reports which recite an officer's observations of criminal activities or observations made as part of an investigation of criminal activities. This phrase does not prohibit introduction of records of a routine, intra-police, or machine maintenance nature, such as intoxilyzer calibration logs. Such routine records are highly likely to be reliable, and are precisely the type contemplated as admissible by the public records exception to the rule against hearsay.
Accordingly, we reject the reasoning of the court of appeals in State v. Emch, supra, and affirm the judgment of both of the courts of appeals in the cases at bar.
Judgments affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
C. BROWN, J., dissents.
Because I am firmly convinced that the police logs pertaining to calibration of intoxilyzer equipment constitute inadmissible hearsay, I dissent.
Such records are specifically barred from admission into evidence by Evid. R. 803(8). This rule expressly excludes reports of public offices or agencies forth matters observed by police officers and other law enforcement personnel in criminal cases, unless offered by the defendant. Such reports are hearsay and are not subject to any exemption.
This court's decision in State v. Walker (1978), 53 Ohio St.2d 192 [7 O.O.3d 368], to the effect that such records are admissible as an exemption to the hearsay rule, was predicated on R.C. 2317.42. Walker, however, predated the adoption of the Ohio Rules of Evidence. R.C. 2317.42 has clearly been superseded by the subsequently enacted Evid. R. 803(8), which specifically excludes such evidence. The rule plainly provides that reports such as those in the instant causes are hearsay and not admissible, regardless of authentication or the supporting testimony of the calibrating officer. Evid. R. 803(8) being later than the statute in terms of the date of enactment, the rule prevails over R.C. 2317.42. See R.C. 1.52.
Based on this analysis, I would reverse the judgment of the courts of appeals in both of the cases at bar.