Opinion
No. 70-571
Decided June 23, 1971.
Criminal law — Operating motor vehicle while intoxicated — Evidence — Chemical test to determine intoxication — Failure to advise accused of statutory right — Does not render test results inadmissible — R.C. 4511.19 — Appeal — Question not raised during trial not decided on appeal.
CERTIFIED by the Court of Appeals for Mahoning County.
The narrative bill of exceptions which was agreed to by counsel recites that the appellant, Richard John Mohr, Jr., was arrested on March 30, 1969, for violation of R.C. 4511.19. After administering a field sobriety test to the defendant, Patrolman Garloch, one of the two arresting officers, drove the defendant to the police station where he withdrew a sample of defendant's blood, to which the defendant voluntarily submitted. Officer Garloch did not testify as to the time when he administered the test to the defendant. Garloch stated that he sent the test blood sample to David Wetzel, a chemist in Columbus, Ohio. Wetzel testified that he received the "paraphernalia" sent by Officer Garloch, and he described how he performed the test. His chemical analysis of defendant's blood indicated a .22 alcohol content. The paraphernalia which was sent to Wetzel by Officer Garloch was offered and admitted in evidence over the defendant's objection. The narrative bill of exceptions does not state the grounds of the defendant's objection to the admission of the paraphernalia. At the conclusion of the state's case the defendant rested. The narrative bill of exceptions states that the defendant moved for an acquittal, but it does not state upon what grounds the acquittal was requested.
Officer Garloch did not advise the defendant that he "* * * may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a police officer * * *" R.C. 4511.19(B). The narrative bill of exceptions contains no indication that the test administered by Officer Garloch was taken within two hours of the defendant's alleged violation.
The trial court found the defendant guilty, and the Court of Appeals affirmed the judgment of conviction. Subsequently, the Court of Appeals sustained the defendant's motion to certify the record to the Supreme Court of Ohio because it conflicted with that of the Court of Appeals for Montgomery County in Couch v. Rice (1970), 23 Ohio App.2d 160.
Mr. Ted Macejko, Jr., prosecuting attorney, for appellee.
Mr. Samuel E. Karam, for appellant.
The Court of Appeals below certified this case to this court on the ground that its decision conflicted with the following statement in paragraph one of the syllabus of Couch v. Rice, supra ( 23 Ohio App.2d 160):
"The results of a chemical test for alcohol of one accused of driving while intoxicated, made at the request of a police officer, are not admissible in evidence unless the accused was advised, as required by Section 4511.19, Revised Code, of his right to have a physician or other qualified person of his own choosing administer an additional test."
This issue is basically the same as that raised in State v. Myers (1971), 26 Ohio St.2d 190. For the reasons stated in that opinion, this issue must be decided in favor of the appellee.
Appellant's second contention is that it was prejudicial error for the trial court to admit evidence pertaining to the results of the chemical analysis of the defendant's bodily substance, unless the prosecution affirmatively proved that such substance was withdrawn within two hours of the time of defendant's arrest. Reviewing the narrative bill of exceptions, the trial judge's separate findings of fact and conclusions of law, and the transcript, we can find no indication that this question was brought to the attention of the trial judge so that he could have ruled thereon. In its opinion, the Court of Appeals stated that the question of "* * * the time which transpired from arrest to test * * *" was not questioned during trial. As this was the case, we shall not decide the question raised in this assignment of error.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, DUNCAN, STERN and LEACH, JJ., concur.
SCHNEIDER and CORRIGAN, JJ., dissent.
SCHNEIDER, J., dissents for the reasons stated in his dissenting opinion in State v. Myers, 26 Ohio St.2d 190.