The opinion
Sean C. Gallagher, Judge,
concurring.
{¶ 44} I concur in judgment with the majority that the state offered sufficient evidence to support the convictions under R.C. 2903.08(A)(1), but write separately to address issues concerning the charging of the OMNI offense, application of the term “under the influence,” and the challenge to the legitimacy of urine testing raised by appellant for a conviction under R.C. 4511.19(A)(4).
{¶ 45} The state of Ohio charged Gordon with aggravated vehicular assault under R.C. 2903.08(A)(1). This provision requires proof of an underlying OMVI, either operating a motor vehicle under the influence under R.C. 4511.19(A)(1) or operating a motor vehicle with a concentration of alcohol above the limits set under at least one of the three proscribed methods outlined in R.C. 4511.19(A)(2) to (7).
{¶ 46} In this case, the state charged Gordon under R.C. 4511.19(A)(4), a violation based on a person having a concentration of .14 of one gram or more but less than .238 of one gram by weight of alcohol per one hundred milliliters of the person’s urine.
{¶ 47} In addition to the (A)(4) (urine sample) violation, the state could have simultaneously charged this offense under R.C. 4511.19(A)(1), alleging that Gordon was under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse. Driving under the influence, as outlined under R.C. 4511.19(A)(1), and the offenses of operating a vehicle with a prohibited blood, breath, or urine level under R.C. 4511.19(A)(2) to (7) are allied offenses of similar import. A person may be found guilty of both but may be convicted and sentenced for only one of the two.
Cincinnati v. Moore
(1989), Hamilton App. Nos. C-880689, C-880690, and C-880691, 1989 WL 136387 . In effect, there are two separate types of offenses: (1) being under the influence, and (2) operating with a prohibited alcohol level in blood, breath, or urine.
State v. Wilcox
(1983), 10 Ohio App.3d 11 , 10 OBR 17, 460 N.E.2d 323 . In the instant case, the state failed to charge under R.C. 4511.19(A)(1).
{¶ 48} Even in the absence of field sobriety tests, due to Gordon’s request for medical treatment, evidence of impaired driving under R.C. 4511.19(A)(1) could have been established by factors that include erratic driving, the accident, the commission of a traffic offense, the odor of alcohol, the admission of alcohol consumption, any noted observable physical conditions related to alcohol or drug consumption, or “blood shot” eyes, or slurred speech, to name just a few. Any of these factors, if believed by the trier of fact, could be used without a chemical test
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result or field test results to support a conviction for OMVI under R.C. 4511.19(A)(1).
{¶ 49} The failure by the state to include an (A)(1) charge under R.C. 4511.19 resulted in the state’s having to rely exclusively on the validity of the urine test result for the underlying OMVI conviction and the conviction under R.C. 2903.08(A)(1).
{¶ 50} The majority’s reference to the language “under the influence” in relation to a violation under the “per se” limit of R.C. 4511.19(A)(4) is misplaced. The “under the influence” reference is applicable only to violations under R.C. 4511.19(A)(1).
{¶ 51} This distinction was made clear in an early decision involving Ohio’s revamped OMVI law in
State v. Murphy
(1983), 7 Ohio Misc.2d 1 , 7 OBR 51, 453 N.E.2d 1304 , where the court held:
{¶ 52} “It is still a violation of law to operate a motor vehicle while under the influence of alcohol. R.C. 4511.19(A)(1). No longer, however, is this the sole basis for conviction. Effective March 16, 1983, it is now an offense for any individual to operate a motor vehicle with a prohibited concentration of alcohol as measured by blood, R.C. 4511.19(A)(2), urine, R.C. 4511.19(A)(4), or * * * breath, R.C. 4511.19(A)(3). The controversial ‘per se’ provisions mandate convictions exclusively on the quantity of alcohol, regardless of evidence of physical impairment or lack thereof. One may be in violation of driving under the influence without violating a ‘per se’ provision and vice versa.”
{¶ 53} Gordon’s urine sample reading was .16, or .02 above the proscribed limit under R.C. 4511.19(A)(4) in place at the time of the incident.
2
{¶ 54} Gordon does not expressly challenge the testing procedures or methods utilized by the Cuyahoga County Coroner’s toxicologist as mandated by the Ohio Department of Health regulations in the Ohio Adm.Code 3701-53 et seq. Rather, Gordon challenges the underlying sufficiency of urine testing as a scientific, reliable, and accurate determination of alcohol in a person’s system at the time of operation.
{¶ 55} This unique challenge is based directly on the state’s expert witness, Dr. Amanda Jenkins, Chief Toxicologist of the Cuyahoga County Coroner’s Office,
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who testified, in part, that “using urine results to infer impairment is not scientifically valid.” Dr. Jenkins also testified that “urinalysis was an accepted method of testing under the Ohio Administrative Code.”
{¶ 56} Gordon’s reliance on
Miller v. Bike Athletic Co.
(1988), 80 Ohio St.3d 607 , 687 N.E.2d 735 , and Evid.R. 702 is misplaced. The very testimony Gordon uses to bring into question the validity of the urine test result is the same evidence Gordon seeks to exclude as unreliable. Nevertheless, logic would appear to dictate that the alcohol concentration in urine detected at the time of a test should have some correlation to the prohibitive level of alcohol in the blood at the time of operation that would indicate impairment. This, however, is not the requirement of the statute. The legal per se limits are just that, legal limits that, once established, create a strict liability offense.
State v. Cleary
(1986), 22 Ohio St.3d 198 , 22 OBR 351, 490 N.E.2d 574 ;
State v. Grimsley
(1982), 3 Ohio App.3d 265 , 3 OBR 308, 444 N.E.2d 1071 . Thus, the Ohio legislature has set limits that create a point at which the legal operation of a vehicle is precluded, regardless of individual impairment.
{¶ 57} Further, an acquittal on an “impairment” charge under R.C. 4511.19(A)(1) is not an affirmative defense to a conviction under a per se violation under R.C. 4511.19(A)(2) to (7). A defendant can be acquitted on a charge alleging “impairment,” while still being convicted under a prohibited level offense arising out of the same facts.
State v. Cox
(1985), Franklin App. Nos. 84AP-671 and 84AP-672, 1985 WL 10246 , citing
State v. Jamison
(June 26, 1984), Franklin App. No. 83AP-1163, 1984 WL 5801 .
{¶ 58} In
State v. Cox,
supra, the Tenth District held that guilt based on a chemical test result rather than individual impairment did not deny a defendant equal protection under the law. The court, citing
State v. Woemer
(1984), 16 Ohio App.3d 59 ,16 OBR 63, 474 N.E.2d 354 , stated:
{¶ 59} “The General Assembly has the constitutional authority to define offenses and presumably could prohibit the operation of motor vehicles when a motorist has consumed any alcohol. Although individual reaction to drinking a specified amount of alcohol may vary, the General Assembly has, after appropriate legislative hearings and presumably based upon scientific evidence, decided that there is universal impairment of motorists at or above the prescribed level. The fact that some persons may be more impaired at that level than others and still receive the same penalty does not render the statute constitutionally invalid.”
{¶ 60} Gordon’s challenge in this case goes to the very validity of using urine test results as the basis of his criminal conviction. The Supreme Court of Ohio, in
State v. Vega
(1984), 12 Ohio St.3d 185 , 12 OBR 251, 465 N.E.2d 1303 , held that the defendant cannot challenge the general reliability of alcohol-testing equipment. In effect,
Vega ,
a very controversial case, held that a general attack on the
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science of the test would not be allowed, while a specific challenge to the test results of the individual defendant would be permissible. Id. Although
Vega
involved a breath-testing challenge, there is nothing in the analysis to suggest that the court would view blood or urine testing any differently than breath. The majority stated:
{¶ 61} “ ‘[The judiciary must recognize] the necessary legislative determination that breath tests, properly conducted, are reliable irrespective that not all experts wholly agree and that the common law foundational evidence has, for admissibility, been replaced by statute and rule; and that the legislative delegation was to the Director of Health, not the court, the discretionary authority for adoption of appropriate tests and procedures, including breath test devices.’ ” Id. at 188-189 , 12 O.B.R. 251 , 465 N.E.2d 1303 , quoting
State v. Brockway
(1981), 2 Ohio App.3d 227, 232 , 2 OBR 247, 441 N.E.2d 602 .
{¶ 62} Nevertheless, the controversial legacy of
Vega
cannot be ignored. The question of whether the Fourteenth Amendment prohibition against conclusive presumptions in criminal cases applies to OMVI cases involving urine testing remains unresolved. See Palmer,
State v. Vega
and Ohio’s O.M.V.I. Law: Per Se Unconstitutional? (1995), 24 Cap.U.L.Rev. 687.
{¶ 63} Clearly, if the focus of “per se” or “prohibited level” offenses was the “impairment” of the individual, the defendant’s assignment of error, in light of Dr. Jenkins’s analysis, would have to be sustained.
{¶ 64} The Ohio Supreme Court has upheld the authority of the Ohio legislature to authorize the Ohio Department of Health to determine the techniques or methods for chemically analyzing a person’s blood breath or urine. See
Vega,
supra; R.C. 3701.143. In light of this holding, I agree with the majority that appellant’s assignment of error is overruled.
{¶ 65} Had Gordon brought in his own expert to challenge his specific results or used Dr. Jenkins under cross-examination to challenge the results in his specific test,
Vega
would not be applicable. Further, this case leaves unresolved the question of a challenge to urine testing, not based on the general reliability of the test but on the issue of whether the Director of the Ohio Department of Health has done enough to determine, or cause to be determined, under R.C. 3701.143, that the latest and best techniques and methods are in -place for urine testing.
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{¶ 66} Nonetheless, I concur with the majority opinion that the evidence presented was sufficient to support the challenged convictions.
James D. Sweeney, J., concurs in the foregoing concurring opinion.
2
. House Bill No. 87, effective June 30, 2003, has reduced the per se limits for the concentration of alcohol in a person's blood, breath, or urine. The bill prohibits a person of any age from operating a motor vehicle within this state and from boating on the waters of this state if he has a concentration of .08 of 1 percent or more by weight of alcohol in his blood, a concentration of .08 of one gram or more by weight of alcohol per 210 liters of his breath, or a concentration of .11 of one gram or more by weight of alcohol per 100 milliliters of his urine (R.C. 1547.11 [A] and 4511.19[A]).
3
. R.C. 3701.143 reads as follows: "For purposes of section 4511.19 of the Revised Code, the director of health shall determine, or cause to be determined, techniques or methods for chemically analyzing a person’s blood, urine, breath, or other bodily substance in order to ascertain the amount of alcohol, a drug of abuse, or alcohol and a drug of abuse in the person’s blood, urine, breath, or other bodily substance. The director shall approve satisfacto
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ry techniques or methods, ascertain the qualifications of individuals to conduct such analyses, and issue permits to qualified persons authorizing them to perform such analyses. Such permits shall be subject to termination or revocation at the discretion of the director.”