# Petition — Garrett v. Ohio

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0574%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 867

## Text

tp Supreme Court, U. &,
FILE

13 hua 5% J
‘7

JUL 1% 1979

bs
Talat, K JR: CLERK

ee eee ed

IN THE
SUPREME COURT OF THE UNITED STATES

TERM, 1979

WILLIAM A. GARRETT,

Petitioner
VS.

PEOPLE OF THE STATE OF OHIO,
Respondent

ON PETITION FR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF OHIO

William A. Garrett

Attorney at Law

726 West Temperance Road
Post Office Box 230
Temperance, Michigan 48182
Phone: (318) 847-8080 *

COUNSEL FOR PETITIONER
AND PETITIONER

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216

SS

INDEX

Page
SEARS es |
jecletitios eS GEER l
Coe Fee 2
Constitutional Provisions Involved _...
es Nee ee

Assertion and Preservation of the Federal Claim 4

Reason for Granting the Writ 0.00. 7

THE OHIO SUPREME COURT BY ITS RE-
FUSAL TO EVEN HEAR PETITIONER'S AP-
PEAL HAS SET IN MOTION A DECISION TO
CIRCUMVENT THE LANDMARK DECISION
OF POINTER VS. TEXAS, 380 US 400 AND
EFFECTIVELY DENY PETITIONER AND
FUTURE DEFENDANTS IN CRIMINAL, FEL-
ONY, AND MISDEMEANOR CASES TO BE.
CONFRONTED WITH THEIR ACCUSERS AND
THEIR RIGHT TO CROSS EXAMINE THEIR
ACCUSERS. SHOULD THIS COURT REFUSE
TO ALTER THE OHIO SUPREME COURT'S
AND COURT OF APPEALS’ DECISIONS, THE
CITIZENS OF THE STATE OF OHIO IN BOTH
FELONY AND MISDEMEANOR CASES WILL
HAVE PURE HEARSAY DOCUMENTS AD-
MITTED INTO EVIDENCE TO ESTABLISH
THEIR GUILT AND PETITIONER AND FU-
TURE DEFENDANTS WILL BE PROHIBITED
FROM CONFRONTING THEIR ACCUSERS
AND CROSS EXAMINING THEM.

i

VIII Conclusion 13

Certificate of Service 15
APPENDIX

A. Journal Entry of Ohio Supreme Court... 1A
B. Opinion of Ohio Appellate Court 2A
C. Exhibit Number Three DA

CITATIONS

Cases:
Barber vs. Page, 390 US. 719 (1968) . HOE
Cal. vs. Green, 399 U.S. 149 (1970) sid
Davis vs. Alaska, 415 U.S. 308 (1974) 12
Mancusi vs. Stubbs, 408 U.S. 204 (1972) 12
Parker vs. Gladden, 385 U.S. 363 (1966) ___—-:18
People vs. Lewis, 294 Mich. 684; 298 NW 907__ 10
Pointer vs. Texas, 380 U.S. 400 __ 7, 9, 10, 11, 15
Smith vs. Ill., 390 U.S. 129 (1968). sid
State vs. Tims, 9 Ohio State 2nd 186... 8
Turner vs. La., 379 U.S. 466 (1965) _. sd

Statutes:
RS MPI ioe en a a 3
oR 8 aaa eeaa EW a oS) 2 en nna Se 8

ii

IN THE
SUPREME COURT OF THE UNITED. STATES

WILLIAM A. GARRETT,
Petitioner

VS.

PEOPLE OF THE STATE OF OHIO,
Respondent

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF OHIO

The Petitioner, William A. Garrett, respectfully prays
that a Writ of Certiorari issue to review the judgment
and opinion of the Supreme Court of Ohio entered on
April 23, 1979.

I

OPINIONS BELOW

The unpublished opinion and judgment of the Supreme
Court of Ohio, File No. 79-323, is set out in full in

Appendix A.
The opinion of the Court of Appeals, Lucas County,
Ohio unpublished is set out in full in Appendix B.

II

JURISDICTION
The jurisdiction of this Court is invoked under 28 U.S.C.
§1257(3). This Petition is being filed within 90 days of
the final order below, entered April 23, 1979.

2

Ill
QUESTION PRESENTED

One question is presented, even though the charge is
a driving under the influence offense which is a six month
misdemeanor offense. Can the State of Ohio deny peti-
tioner's sixth amendment right of confronting and cross-
examining his accuser by allowing a hearsay document
into evidence over petitioner's objection to attempt to
prove petitioner's guilt?

IV
CONSTITUTIONAL PROVISIONS INVOLVED

Amendment VI

In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have
been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the wit-
nesses against him; to have compulsory process for obtain-
ing witnesses in his favor, and to have the assistance of
counsel for his defense.

Amendment XIV

SECTION 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of he State wherein they
reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person
of life, liberty or property, without due process of law;

3

nor deny any person within its jurisdiction the equal pro-
tection of the laws.

V.
STATEMENT OF THE CASE

Petitioner, William A. Garrett, was driving his auto-
mobile north bound on US Route 23 when he was stopped
by Officer James Walker of the Ohio State Highway Pa-
trol on or about the evening of Tuesday, October 4, 1977,
and charged with the vehicular offense of Driving While
Intoxicated pursuant to ORC 4511.19.

Further, petitioner was administered an _ intoxilyzer
breath test and tested at .16 pursuant to the Implied
Consent Statute, ORC 4511.19.1. Subsequently, jury trial
was scheduled for February 28, 1978 in Sylvania Mu-
nicipal Court before the Honorable William Erb, Sylvania
Municipal Judge.

On February 28, 1978 petitioner was found guilty of
Driving Under the Influence of Liquor by the jury. Peti-
tioner filed a motion for a new trial and an amended
motion for new trial. On April 3, 1978 petitioner's motion
for new trial was denied and petitioner was sentenced
to serve three (3) days in jail and received fine and costs
totalling $293.00 and his driving privileges were sus-
pended in the State of Ohio for thirty (30) days. On
April 3, 1978 petitioner filed his Notice of Appeal.

On February 9, 1979 the Court of Appeals affirmed
petitioner’s conviction and the matter was remanded back
to the Sylvania Municipal Court for sentencing. On Feb-
ruary 16, 1979 petitioner filed a motion with the Sylvania
Municipal Court to stay execution of sentence and con-
tinue appellant's personal recognizance bond to seek
leave to appeal to the Supreme Court of Ohio. On Feb-
ruary 16, 1979 the Sylvania Municipal Court granted

4

petitioner's motion to stay execution of sentence and con-
tinue his personal recognizance bond to permit petitioner
to bring the appeal to the Supreme Court of Ohio.
Thereafter, on February 26, 1979 petitioner filed his notice
of appeal with the Lucas County Court of Appeals.

On or about February 26, 1979 petitioner filed a brief
in support of jurisdiction requesting that the Ohio Su-
preme Court grant leave to appeal. On April 23, 1979
the Ohio Supreme Court denied levae to appeal. Peti-
tioner on the 30th day of April, 1979 obtained a stay of
execution of sentence from the trial court, Sylvania Mu-
nicipal Court, Lucas County, Ohio.

During the course of the trial a heresay document was
introduced into evidence over petitioner's objection pur-
porting that the breath testing device, to wit, an Omicron
Intoxilyzer was in good working order and properly cali-
brated. Petitioner, in the body of this brief, will go into
greater detail.

VI

ASSERTION AND PRESERVATION OF
THE FEDERAL CLAIM.

During the course of petitioner’s trial on February 28,
1978 the People introduced evidence of an intoxilyzer
breath test which was administered to petitioner after
his arrest. (See transcript Page 39)

Petitioner objected to the admission into evidence of
the test for various reasons including that the People did
not show by proper foundation that the intoxilyzer was
in proper working condition. (See transcript Pages 37-39)

During the course of trial, Officer James Walker, the
only witness produced the intoxilyzer test to petitioner,
he performed a simulator test on intoxilyzer #001162 and

5

received a reading of 0.106 using a simulator solution
prepared by the Ohio Department of Health, Batch No.
77-05, Bottle No. 77-48-05. At the trial, Exhibit No. 3
was introduced by the People over petitioner's objection
and admitted into evidence by the trial court. (See tran-
script Page 37) Said exhibit was an affidavit signed by
Trooper Robert W. Gochoel, Jr., a chemist and laboratory
technician of the State of Ohio Department of Health,
dated September 15, 1977 which said affidavit stated in
Part:

“This calibration solution contains 1/23 mg/m]
ethyl alcohol in distilled water and when used
according to manufacturer's stated methods will
produce a reading of 0.102% blood alcohol in
the above named breath testing instrument when
that instrument is in proper working condition
for a period of three (3) months from the date
of first use.”

On Page 37 of the transcript the People introduced

Exhibit No. 3 into evidence. This document was used to

illustrate that the simulator was prepared and checked
out by the Ohio Department of Health within the 90-day
prescribed period and the affidayit was signed by a
Trooper Robert W. Gochoel, Jr. On Page 37 of the tran-
script it reads in part as follows:

Q Mr. Walker, I’m showing you what's been
marked as State’s exhibit three and asking you if
you can identify it.

A This is a record of analysis of the calibra-

tion solution and the batch number and bottle
number is 77-48-05, and it was prepared for the

6

Toledo Post of Ohio State Patrol on the thirtieth
of August, 1977.

Q And what is the percentage of alcohol in
that simular solution?

MR. GARRETT: I'm going to have an objec-
tion at this point. Excuse me, Mr. Ramey. This
is a piece of paper signed by somebody from the
department, supposedly the Department of
Health. I feel that they are going to rely on the
simulator to show that this so-called machine is
going to be a functioning, good-working ma-
chine that that individual from down here testi-
fied to the jury that he checked that batch out.
And I would respectfully move to strike any fur-
ther testimony from the contents of that affi-
davit as it is nothing more than pure heresay.
And I don't have a right to cross examine a piece
of paper. I can't very well do that effectively,
Your Honor.

THE COURT: Your objection is overruled.
You may proceed.

Petitioner contends that Exhibit No. 3 was nothing
more than a hearsay document. Petitioner could not cross
examine the deponent and was denied his constitutional
right to confront his accusers.

Petitioner's constitutional claim was renewed before
the Lucas County Court of Appeals along with several
other state arguments. The Court of Appeals affirmed peti-
tioner's conviction and the Ohio Supreme Court on April
23, 1979 denied petitioner's leave to appeal stating no
constitutional questions were presented.

7

Vil
REASON FOR GRANTING THE WRIT

THE OHIO SUPREME COURT BY ITS REFUSAL
TO EVEN HEAR PETITIONER'S APPEAL HAS SET
IN MOTION A DECISION TO CIRCUMVENT THE
LANDMARK DECISION OF POINTER VS. TEXAS,
380 US 400 AND EFFECTIVELY DENY PETITIONER
AND FUTURE DEFENDANTS IN CRIMINAL, FEL-
ONY, AND MISDEMEANOR CASES TO BE CON-
FRONTED WITH THEIR ACCUSERS AND THEIR
RIGHT TO CROSS EXAMINE THEIR ACCUSERS.
SHOULD THIS COURT REFUSE TO ALTER THE
OHIO SUPREME COURT'S AND COURT OF AP-
PEALS’ DECISIONS, THE CITIZENS OF THE STATE
OF OHIO IN BOTH FELONY AND MISDEMEANOR
CASES WILL HAVE PURE HEARSAY DOCUMENTS
ADMITTED INTO EVIDENCE TO ESTABLISH
THEIR GUILT AND PETITIONER AND FUTURE
DEFENDANTS WILL BE PROHIBITED FROM CON-
FRONTING THEIR ACCUSERS AND CROSS EX-
AMINING THEM.

The central issue of this appeal is the admission of a
hearsay document into evidence to corroborate that a
breath testing instrument, an intoxilyzer, was in proper
working condition. Under Ohio law in a drunk driving
case the prosecution is required to show that a breath
testing device is in proper working condition. One of the
conditions required to show tha a breath testing device
is in properly working condition is to show that the breath
testing device was properly calibrated with a simulator
solution prepared by the chemists of the Ohio Department
of Health. It is the job of the chemist of the Ohio Depart-
ment of Health to check the simulator solution to make

8

sure it is accurate before it is dispensed to the police
agencies in the State of Ohio.

If the prosecution fails to show that the simulator solu-
tion is accurate, then the results of the breath testing
devise are inadmissible into evidence. In petitioner’s trial
Exhibit No. 3 was admitted into evidence over petitioner's
objection. Exhibit No. 3 is set out in full and is attached
to this petition in the Appendix C.

In this case Exhibit No. 3 was an affidavit signed by
respondent's chemist purporting that the simulation solu-
tion was properly checked and that it was correct. The
affidavit sought to prove that the intoxilyzer was in proper
working condition so that the intoxilyzer could be ad-
mitted into evidence. Petitioner, of course, had no chance
to cross examine this unsworn witness as to what scien-
tific procedures and techniques he performed to come to
the conclusion that the simulator solution used in peti-
tioner's breath test was accurate. Instead, a piece of paper
was admitted into evidence purporting that the simulator
solution was accurate and that the breath testing device
was in proper working condition. Petitioner, of course,
had no opportunity to cross examine this witness.

In the Ohio State case of State vs. Tims, 9 Ohio State
2nd 136, the defendant was charged with statutory rape.
During the course of the trial, the prosecution introduced
a physician’s report pursuant to ORC 2317.40 (Business
Records as Evidence Act) instead of producing the phy-
sician. The defendant objected to this procedure. On
appeal the Ohio Supreme Court reversed defendant's
conviction stating that an accused has a constitutional
rigot to cross examine his accuser. On pages 188 and 139
the court said:

“One of the basic and fundamental rights

9

guaranteed an accused by both the state and
federal constitutions is the confrontation of the
witnesses against him. Section 10, Article I of the
Ohio Constitution provides that an accused has
a right ‘to meet the witnesses face to face.’ As
was said in Pointer vs. Texas, 380 U.S. 400, at
405:

‘There are few subjects, perhaps, upon which
this court and other courts have been more
nearly unanimous that in their expressions of be-
lief that the right of confrontation and cross-
examination is an essential and fundamental
requirement for the kind of fair trial which is
this country’s constructional goal. In deed, we
have expressly declared that to deprive an ac-
cused of the right to cross-examine the witnesses
against him is a denial of the F~urteenth Amend-
ment’s guarantee of due process of law.’

This right of confrontation includes the right
of cross-examination of the person who is the
actual witness against him. If applicable in a
criminal case, the Business Records and Evi-
dence Act denies him such right. The act permits
the introduction of evidence in the form of rec-
ords without requiring the presence of the per-
son who actually made the examination. It is
this person who is the actual witness against the
accused, not the custodian, and it is this witness
that the accused has the right to cross-examine
to determine his qualifications and to determine
whether the tests were made properly.

Here, the actual witness against the appellant
was the examining physician whose findings

10

were incorporated in the record offered as evi-
dence.

The effect of admitting hospital records in this
type of case would be to allow the examining
physician to testify without being subject to
cross-examination.

The rules of civil procedure are not, therefore,
applicable in a criminal case, whether such rules
would serve to deprive an accused of a consti-
tutional right to confront the witnesses used
against him, the Business Records as Evidence
Act is not applicable to criminal proceedings to
allow the admission into evidence of hospital
records showing the results of a physical ex-
amination of an alleged rape victim. This, of
course, does not bar the introduction of such
records where they are offered through and sub-
stantiated by the person who conducted such
examination. People vs. Lewis, 294 Mich. 684,
293 N.W. 907.

In the instant case, appellant consistently
denied that he had had sexual intercourse with
the girl. The report substantiated the essential
element of the state’s case, the fact that the girl
had been subjected to recent sexual intercourse.
Its admission was clearly prejudicial to the ap-
pellant.”

The Sixth Amendment right of the defendant “to be
confronted with witnesses against him” had not received
extensive interpretation prior to its incorporation within
the Fourteenth Amendment in Pointer vs. Texas, 380 U.S.
300 p. 20. Since Pointer, the Court has decided more than
a dozen cases involving confrontation issues. These cases

11

reveal both the potentially broad impact of the confron-
tation clause and the Court’s emphasis upon a functional
analysis relating each decision to its particular procedural
setting.

A substantial number of confrontation cases have con-
cerned the admissability of hearsay. The Court has
stressed that the crucial question under the confrontation
clause is not compliance with common law hearsay rules,
but fulfilment of the “mission of the confrontation clause
to advance the accuracy of the truth determining process
* * © by assuring that the trier of fact has a satisfactory
basis for evaluating the truth of a prior statement.” Cal.
vs. Green, 399 U.S. 149 (1970). Thus, the states have
leeway to recognize new exceptions to the prohibition
against hearsay evidence if those exceptions assure
defendant an adequate opportunity for cross-examination.
Cal vs. Green, supra (upholding a state rule that incon-
sistent prior statements of a witness now subject to cross-
examination may be admitted to prove the truth of the
matters asserted therein). On the other hand, well estab-
lished hearsay exceptions will not be acceptable when
applied so as to unnecessarily subvert the opportunity
for cross-examination. For example, the Court has ac-
cepted as consistent with the confrontation clause the
hearsay exception permitting admission of prior testimony
of a currently unavailable witness, but has stressed that
the testimony must have been obtained at a prior pro-
ceeding where counsel had “full and adequate oppor-
tunity for cross-examination.” Compare Cal. vs. Green,
supra (prior preliminary hearing testimony admissible
since counsel had full cross-examination rights at the pre-
liminary hearing) with Pointer vs. Texas, supra (prelim-
inary hearing testimony inadmissible where defendant
lacked counsel to assist in cross-examination at the hear-

12

ing). The Court also has stressed that the witness must
truly be unavailable for the prior testimony exception
to be applied. While permanent transfer to a foreign
country was sufficient to establish unavailability, Mancusi
vs. Stubbs, 408 U.S. 204 (1972), imprisonment in a fed-
eral prison was not sufficient when the state had made
no effort to secure the prisoner’s appearance through the
cooperation of federal authorities, Barber vs. Page, 390
U.S. 719 (1968).

The confrontation clause has also been recognized as
having a significant bearing upon the proper scope of
cross-examination. Here again, rulings tend to be tied to
the facts of the particular case. Smith vs. Ill., 390 U.S.
129 (1968), found a constitutional violation when de-
fendant was not allowed to ask the principal prosecution
witnesses, a police informer, either his correct name or
address. Davis vs. Alaska, 415 U.S. 308 (1974), found
that the trial judge committed constitutional error in
denying defense the opportunity to raise a key witness’
juvenile delinquent probationary status. The Court noted
that the state has a legitimate interest in protecting the
anonymity of juvenile offenders, but that interest could
not be utilized to bar cross-examination as to a factor
obviously relevant to the witness’ possible improper
motivation.

Perhaps the most unique application of the confronta-
tion clause has been to the out-of-court presentation of
information to the jury. Arguably such presentations
easily could be invalidated upon due process grounds
analogous to those cited in the prejudicial pretrial pub-
licity cases (p. 56). However, if the source supplying
the out-of-court information is treated as a witness, the
confrontation clause provides another ground for objec-

13

tion. That approach was taken in Parker vs. Gladden, 385
U.S. 363 (1966), where a bailiff casually commented to
the jury, “ch that wicked fellow, he is guilty” and, “if
there is anything wrong [in rendering a guilty verdict]
° * * the Supreme Court will fix it.” The Court concluded
that defendant had been denied the right of confronta-
tion since the bailiff had become, in effect, a secret wit-
ness. Compare Turner vs. La., 379 ,U.S. 466 (1965)
where the Court relied solely on the impartial jury ration-
ale in reversing a conviction when two deputy sheriffs,
who were key prosecution witnesses, were placed in
charge of the jury and fraternized with them throughout

the trial.
VII
CONCLUSION

Petitioner asserts that if this honorable court does not
grant the writ prayed for, the State of Ohio can in both
felony and misdemeanor cases use hearsay documents
to prove the truth contained therein to prove the guilt of
defendants.

In the case in bar, especially in drunk driving cases,
the use of exhibits such as exhibit number three, is now
widely used in Ohio by police authorities. They are used
to substantitate that the simulator solution used to prove
that the breath testing devices are in proper working
condition to convict defendants of driving under the
influence.

It is important to note that if the prosecution is unable
to show that the breath testing device is in proper work-
ing condition, the breath testing device cannot be ad-
mitted into evidence. The breath testing device if ad-
mitted into evidence can show a certain percentage of

14

alcohol in the defendant's bloodstream and ultimately
the jury can be instructed that a percentage of .10 per
cent in the bloodstream constitutes a rebuttable presump-
tion that the defendant is guilty of driving under the in-
fluence. It is, therefore, quite critical that the prosecution
show that the breath testing device is properly calibrated.
To calibrate the breath testing device under Ohio law,
a simulator test is performed on a breath testing device
used in a defendant's case every ten days or every ten
tests. The simulator solution consists of ethyl alcohol in-
jected into the device and should give a pre-determined
test score to verify the accuracy of the breath testing
device. It is, therefore, quite critical that the simulator
solution be accurate. If the simulator solution is not ac-
curate, then the test conducted on the defendant is not
accurate and the breath test result is not admissible into
evidence. The key, therefore, is the accuracy of the simu-
lator solution prepared by chemists of the Ohio Depart-
ment of Health.

In the case in bar the petitioner, like other defendants,
cannot cross examine the chemists as to the accuracy of
the simulator solution prepared by them in the form of
an affidavit. Petitioner contends such an affidavit, as ex-
hibit number three, denies the petitioner of his 6th
Amendment right to cross examine an unseen witness
against him.

If this honorable court does not put a stop to this un-
constitutional action of the State of Ohio, it will not be
long before criminal jury trials are conducted by hearsay
and defendants will be prohibited from confronting their

15

accusers and the rule in Pointer vs. Texas will mean
nothing.

RESPECTFULLY SUBMITTED,

W diem O, Ypvrm

WILLIAM A. GARRETT

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Petition
for a Writ of Certiorari to the Supreme Court of the State
of Ohio was sent by United States first class mail, postage
prepaid, to soyaee" ay of py to this pro-
ceeding this '% day of _U’y7 . 1979, said
service being made on the City of Sylvania Prosecuting
Attorney representing the City of Sylvania, Ohio.

Willian Yar

WILLIAM A. GARRETT

la

APPENDIX A

THE SUPREME COURT OF OHIO

No. 79-323
1979 TERM
To wit: April 20, 1979
THE STATE OF OHIO,
City of Columbus.
State of Ohio,

Appellee,
vs.
William A. Garrett,
Appellant.
APPEAL FROM THE COURT OF

APPEALS
for Lucas County

This cause, here on appeal as of right from the Court
of Appeals for Lucas County, was heard in the manner
prescribed by law, and, no motion to dismiss such appeal
having been filed, the Court sua sponte dismisses the
appeal for the reason that no substantial constitutional
question exists herein.

It is further ordered that a copy of this entry be certi-
fied to the Clerk of the Court of Appeals for Lucas County
for entry.

I, Thomas L. Startzman, Clerk of the Supreme Court
of Ohio, certify that the foregoing entry was correctly
copied from the Journal of this Court.

Witness my hand and the seal of the Court
hte ep a Se

__Clerk
__......... Deputy

2a

APPENDIX B

IN THE COURT OF APPEALS OF
LUCAS COUNTY, OHIO
State of Ohio
Plaintiff-Appellee
vs.

William A. Garrett
Defendant-Appellant

C.A, No. L-78-095
S.M.C. No. 77-C-4190

OPINION
Decided: February 9, 1979

Mr. William A. Garrett, Attorney for Appellant.
Mr, Scott Ramey, Attorney for Appellee.

POTTER, P.J. The defendant, William A. Garrett, was
charged with the offense of driving while intoxicated,
contrary to the provisions of R.C, 4511.19. He was given
an intoxilyzer breath test and registered .16. R.C. 4511.19
provides that if there is a concentration of ten-hundredths
of one percent or more by weight of alcohol’ in a de-
fendant’s blood, it shall be presumed that he was under
the influence of alcohol. Defendant requested a second
intoxilyzer test which was refused.

After a jury trial the defendant was found guilty. From
the verdict and judgment the defendant appeals and has
filed ten assignments of error. Although we find all assign-
ments of error not well taken, we find assignments of
error Nos. 4 and 7 to contain the most novel issues of
law and comment on them first.

3a

Assignments of error Nos. 4 and 7 are as follows:

“4. The intoxilyzer test is not a chemical test as
required by ORC 4511.91, Admission of said test
constituted reversible error,

“7. The People failed to establish the health
regulation that the intoxilyzer was an approved
testing device as set down by the Ohio Depart-
ment of Health.”

Defendant-appellant asserts that the Omicron Intoxi-
lyzer is, “an infrared electromagnetic spectrum” analysis
and is not a chemical test as required by R.C. 4511.19.

In the case of State vs. Moore (1973), Del. Super. Ct.
307 A. 2d 548, that court described the operation of the
Omicron Intoxilyzer as follows:

“After some rather elementary preliminary pro-
cedures performed by the operator of the device
the suspect is required to blow his breath into it
through a small tube.

“A given wave length of infra red light is caused
to pass through the suspect's breath as it passes
through the device. If the breath contains ethyl
alcohol, a part of the light will be absorbed by
the ethyl alcohol. The amount of light thus ab-
sorbed indicates the amount of ethyl alcohol
present in the breath. The device then translates
the amount of ethyl alcohol present in the breath
to the amount present in the blood and the result
is flashed on a small screen which is part of the
device and printed on a card which the operator
had previously inserted in the device.”
That court held that the test in question was a chemical
analysis, regardless of the fact that the procedure was
purely mechanical.

4a

This court had an opportunity to comment on a similar
assignment of error and argument in the case of Monak
vs. Registrar, Bureau of Motor Vehicles, Court of Ap-
peals, Ottawa County, No. 78-CV-17, November 24,
1978. In that case we said the following:

“This assignment of error is not well taken. Appel-
lant alleges that the measurement of the alcohol
content of his breath by the intoxilyzer is not a
chemical test since the intoxilyzer measures alco-
hol content by using light rather than chemicals.
We assume that this characterization of the ma-
chine is correct, since it is not disputed in the
record, Nonetheless, we find that the intoxilyzer
test is a chemical test, within the meaning of R.C.
4511.191, since the intoxilyzer makes a chemical
analysis of the breath; whether it does so by
chemical or physical means is irrelevant.”

In the Monak case, supra, appellant was appealing
from an adverse decision pursuant to the filing of his
petition under R.C. 4511.191(F), the implied consent
statute. However, the reasoning of this court in that case
and our holding is equally applicable to the case sub
judice. We, therefore, find assignment of error No. 4 not
well taken.

As to assignment of error No. 7, the defendant-appellant
maintains that prior to trial he objected to his test result
being submitted in evidence because the Ohio Depart-
ment of Health did not list and approve the intoxilyzer
as a breath-testing device. Inferentially, appellant also
maintains that the State had the burden to establish
reliability of the test and the admissibility of the score.

In a prior case involving the MR-7 moving radar device,

5a

see State s. Shelt (1976), 46 Ohio App. 2d 115, we did
require expert testimony before we accepted evidence
based on MR-7 readings. The State asserts that the situ-
ation is not analogous, and we agree. The Legislature has
provided in R.C, 4511.19 that a court may admit evidence
of the concentration of alcohol in a defendant's blood as
shown by chemical analysis of the defendant's breath or
other bodily substance. The bodily substance must be
analyzed in accordance with methods approved by the
Director of Health. Cincinnati vs. Duhart (1974), 41 Ohio
App. 2d 127, stands for the proposition that a court may
take judicial notice of the rules and regulations adopted
by the Director of Health. The intoxilyzer is an approved
breath-testing instrument. See State of Ohio, Department
of Health, Alcohol, Testing, Approval and Permit Pro-
gram HD-102, “Breath Tests”. The State called the trial
court’s attention to the regulations; the defendant pro-
duced no testimony that the Omicron Intoxilyzer was
unreliable. See State vs. Moore, supra, and Best vs. State
(1974), Del. Super. Ct. 328 A. 2d 141, to the affect that,
absent testimony by the defendant to the contrary, the
court may assume that it is reliable. Absent any showing
by the defendant that the instrument was unreliable, we
find, as we did assignment of error No. 4, assignment of
error No. 7 not well taken.

We next consider assignments of error Nos. 1 and 2.
They are as follows:

“1. The test result of appellant should not have
been admitted into evidence because the people
failed to establish that the intoxilyzer was in
proper working condition.

“2. Admission of exhibit No. 3 into evidence to

6a

esatblish that the intoxilyzer was in proper work-
ing condition was hearsay.”

Defendant maintains that the instrument was not work-
ing properly for the reason that a test solution run through
the machine should have tested 0.102%. It tested 0.106%.
This contention is not well taken as official instruments
#008 of the Alcohol Testing Program per regulation
HD-1-04(A) permits a difference of no greater than
+-0.005% between the instrument analysis and the solu-
tion. The machine in question fell within the limits toler-
ated and, therefore, was in proper working condition.
The defendant questions the use of the simulator solu-
tion as there was no showing as to when the solution was
first used. The evidence shows the solution was prepared
on August 30, 1977, and used on October 4, 1977. This
assignment of error is not well taken.

Assignment of error No. 2 attacks the admissibility of
Exhibit 3. This exhibit was used to prove that the simu-
lator solution was prepared and checked out by the De-
partment of Health within 90 days of its use.

This exhibit is admissible as an exception to the hear-
say rule under authority of State vs. Walker (1978), 53
Ohio St. 2d 192. The syllabus of that case is as follows:

“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 perm-
anent log book maintained by a police depart-
ment in accordance with regulations promul-
gated by the Director of Health pursuant to R.C.
3701.143 are admissible in evidence as an excep-
tion to the hearsay rule under R.C. 2317.42.”

7a

That case refers to the admissibility of a log book. Ex-
hibit 3 falls within the rationale of the Walker decision.
Exhibit 3 was a document signed by Trooper Robert W.
Gochoel, Jr., of the Ohio Department of Health to the
effect that the simulator solution was prepared and ap-
proved by the Ohio Department of Health within the
90-day prescribed period. It also contained a record of
the analysis of the calibration of the solution and the
batch number, and stated it was prepared for the Toledo
Post of the Ohio State Patrol on the 30th of August 1977,
In Walker, supra, we find and quote the applicable lan-
guage, as follows:

“Determination of the applicable exception to the
hearsay rule directly affects the outcome in this
cause,’ since, in authenticating the document
during trial the prosecution did not call as a wit-
ness the custodian, supervisor, or maker of the
record as required under R.C. 2317.40, but
rather merely submitted a certified copy of the
report as permitted under R.C, 2317.42.

“R.C. 2317.42 provides:

“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, insofar as relevant, be admitted as evi-
dence of the matters stated therein.’

“In discussing the necessity for the official-re-
ports-as-evidence exception, this court noted
that:

““The General Assembly, recognizing the need
for an authority that “would make admissible
various sorts of reports dealing with matters

8a

seldom disputable and only provable otherwise
at disproportionate inconvenience and cost” (5
Wigmore on Evidence [3 Ed.], 699 Section
1672), enacted Section 2317.42, Revised Code,
thereby greatly facilitating the production of
evidence with little chance of it being untrust-
worthy.’ State vs. Colvin (1969), 19 Ohio St. 2d
86, at 89. As commented in 5 Wigmore on Evi-
dence (3 Ed.), 618, Section 1632:

“se * * When it is a part of the duty of a public
officer to make a statement as to a fact coming
within his official cognizance, the great prob-
ability is that he does his duty and makes a cor-
rect statement. The consideration that regularity
of habit, a chief basis for the exception for regu-
lar entries ° ° *, will tend to this end is not here
an essential one; for casual statements, such as
certificates, may be admissible, as well as a regu-
lar series of entries in a registry. The funda-
mental circumstance is that an official duty
exists to make an accurate statement, and that
this special and weighty duty will usually suffice
as a motive to incite the officer to its fulfillment.’

“Applying the above statutory provisions to the
cause at bar, the court finds that portions of the
permanent log book are admissible under the
official-reports-as-evidence exception.”

We also quote the following from page 200:

“In conclusion, the court finds that the documen-
tary evidence sub judice qualifies under the
Official Reports as Evidence Act pursuant to
R.C, 2317.42, that the document is sufficiently

Ha

reliable to warrant its admissibility in evidence
despite the fact that the declarant is not present
at trial, and that the holding of Tims, supra, is
not controlling given the facts of this cause.”

Assignment of error No, 2 is not well taken,
Assignment of error No, 3 is as follows;

“3, Failure on the part of the People to produce
the repair and maintenance logs dented appel-
lant due process of law and violated the Ohio
Department of Health's own rules and regula.
tions,”

Defendant argues that there should be a repair and
maintenance log book, However, only one log book is
required by the Department of Health Rules, It was pro-
duced, The intoxilyzer in question at the time of trial had
had no repairs or maintenance performed, The testimony
was to the effect that if the calibration test is not true,
then the machine would not be used, Assignmet of error
No, 3 is not well taken,

Assignment of error No, 5 is as follows:

“5S. That reversible error was made when the
appellant requested that a second intoxilyser
test be given to him and the owcer refused said
second test,”

This assignment of error is not well taken, B.C,
4511,19(C) is as follows, in pertinent part;

“The person tested 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

10a

any administered at the direction of a police
officer, and shall be so advised, The failure or
inability to obtain an additional test by a person
shall not preclude the admission of evidence
relating to the test or test taken at the direction
of a police officer,”

Defendant-appellant did not seek to avail himself of
R.C, 4511, 19°C) tests,

Assignment of error No, 6 is as follows:

"6, The court committed reversible error when
it allowed the witness to use his notes and testify
to alleged observations when the witness could
not remember the details,”

We find no error in permitting the officer to refresh
his memory by referral to his notes, Assignment of error
No. 6 is not well taken.

Assignment of error No, 8 is as follows:

"8, The trial court should have granted appel-
lant’s motion to produce the intoxilyzer before
the jury”

In a case wherein the present counsel represented a
different defendant, the same assignment of error was
asserted, See City of Toledo vs, Huff, C.A. No, L-76-283,
March 25, 1977.

We held then that this assignment of error was not
well taken. We apparently did not convince counsel of
the merit of our holding. We will try to do so again and,
consistent with our prior decision, we hold assignment
of error No, 8 is not well taken.

lla

Assignment of error No. 9 is as follows:

“9. Failure to record the first breath sample of
appellant constituted error.”

Defendant's first effort in breathing into the machine
was apparently not strong enough to activate the ma-
chine, It could not, therefore, be recorded. This assign-
ment of error is not well taken,

Assignment of error No, 10 is as follows:

“10. Failure to give reckless operation of a motor
vehicle and improper lane usage as a lesser in-
cluded offense constitutes error.”

In City of Akron vs, Kline (1956), 165 Ohio St. 322,
the Ohio Supreme Court held at page 324 the following:

“Evidence which would be sufficient to sustain a
conviction for reckless driving would not be
sufficient to sustain a conviction for operating or
being in control of a vehicle while intoxicated.
Being under the influence of intoxicating liquor
is not necessarily an element of the former
offense, and reckless operation is not an element
of the latter offense.”

See also City of Toledo vs. Huff, supra. Likewise, im-
proper lane usage is not a lesser included offense. Assign-
ment of error No. 10 is not well taken.

Finally, apart from the score the defendant made on
the intoxilyzer, we find abundant probative evidence
from which the jury could find beyond a reasonable doubt
that the defendant was driving while intoxicated, con-
trary to R.C. 4511.19.

The judgment of the Sylvania Municipal Court is

12a

affirmed at appellant's costs. Cause remanded for execu-
tion of sentence and for costs.

JUDGMENT AFFIRMED.

Brown and Wiley, J]., concur.

Judge Frank W. Wiley, Retired, Sitting by assignment
of the Chief Justice of the Supreme Court of Ohio.

APPENDIX C
Exuisir 3

OHIO STATE HIGHWAY PATROL
CRIME LABORATORY

CHEMISTS: Sgt. Robert L. Ely
Tpr. Robert W. Gochoel, Jr.

REPORT OF ANALYSIS: CALIBRATION SOLUTION,
REGULATION HD-1-04, OHIO DEPARTMENT OF
HEALTH

BATCH NO. 77-05

BOTTLE NO. 77-48-05

DATE August 30, 1977
PREPARED FOR TOLEDO POST

To be used in Simulator for calibration of Intoxilyzer
breath testing equipment.

(This calibration solution contains 1.23 ma/ml ethyl alco-
hol in distilled water and when used according to manu-
facturer’s stated methods will produce a reading of 0.102%
blood alcohol in the above named breath testing instru-

13a

ment when that instrument is in proper working condi-
tion for a period of three (3) months from the date of
first use. )

AFFIDAVIT
STATE OF OILLO, FRANKLIN COUNTY:

I hereby certify that the calibration solution denoted by
this report has been analyzed by me and found to contain
ethyl alcohol in the amount denoted and constitutes an
appropriate calibration solution as required under regu-
lation HD-1-04 Ohio Department of Health, Calibration.

Tpr. Robert W. Gochoel, Jr.
Laboratory Technician

State of Ohio

Department of Health

Laboratory Technician Permit No. 296

Laboratory Technician permit has been valid from date of
issuance on September 24, 1974 through September 15,
1977,

Sworn to and signed in my presence this
15th day of September, 1977.
Notary Public D, A. Lawrence

Notary Seal

cee eee

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0574%3A1. Public record. Not legal advice.