State v. Ott , 133 Ohio App. 3d 532 ( 1999 )

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellant-defendant, Daniel C. Ott, appeals from his conviction and sentence by the Wayne County Municipal Court for driving under the influence of alcohol, improperly changing lanes, and failing to wear a seat belt. We reverse.

The city of Orrville filed complaints against Defendant for driving under the influence in violation of R.C. 4511.19(A)(1), for improperly changing lanes in violation of R.C. 4511.33, and for failing to wear a seat belt in violation of R.C.4513.263(B)(1). After a jury trial, Defendant was found guilty of each offense. On March 20, 1998, the trial court imposed a one-year jail sentence, a ten-year license suspension, and a $1,000 fine upon Defendant.

Defendant submitted to a breath test at the time of his arrest. The test indicated that Defendant possessed a .098% concentration of alcohol in his blood. During Defendant's trial, the trial court refused to admit the results of this test into evidence.

Defendant timely appeals and raises five assignments of error.

ASSIGNMENT OF ERROR I Defendant was denied due process of law and his constitutional right to present a defense when the court ruled that defendant could not offer evidence to the jury concerning breath tests given to defendant which produced a reading below the presumptive level of .10.

Defendant contends that the trial court erred by not allowing Defendant to enter the results of his alcohol concentration breath test into evidence. We agree.

The prosecution filed a motion in limine to exclude the results of Defendant's breath test on the basis that, pursuant to Evid.R. 402, such evidence would not be relevant for a charge under R.C. 4511.19(A)(1). Over Defendant's objections, the trial court granted the motion in limine and prevented any testimony regarding this test to be entered into evidence during the trial.

Trial courts possess discretion when determining whether to admit or to exclude evidence, and such determinations by a trial court should not be disturbed by a reviewing court unless a clear abuse of discretion has occurred and the defendant has been materially prejudiced by the admission or exclusion. State v.Hymore (1967), 9 Ohio St. 2d 122, 128. Evid.R. 402 provides that relevant evidence is generally admissible, while irrelevant evidence is inadmissible. Evidence is relevant where it has a tendency to make the existence of a fact more or less likely, and all relevant evidence is admissible in court unless excluded by an evidentiary rule. In re Dukes (1991), 81 Ohio App. 3d 145, 152-53.

R.C. 4511.19(D)(2) provides that evidence that an accused's blood alcohol level is below a certain percentage may be considered with other competent evidence when determining the guilt or innocence of a defendant in a criminal prosecution for a violation of division (A) of R.C. 4511.19. Although the prosecution has claimed that Defendant's breath test result is irrelevant because Defendant was charged with violating R.C.4511.19(A)(1), this distinction is not contemplated by R.C.4511.19(D)(2).

In this case, Defendant's blood alcohol concentration of .098% may tend to make it more or less likely that a trier of fact would conclude that he had operated a vehicle while under the influence of alcohol. Accordingly, such evidence should not have been excluded as irrelevant. At trial, the prosecution submitted the following evidence to support the presence of guilt under R.C.4511.19(A)(1): the failure of Defendant to satisfactorily perform field sobriety and divided attention skills tests; the smell of alcohol on Defendant and his vehicle; and observations of Defendant driving erratically and at an excessive rate of speed. The results of Defendant's breath test may have demonstrated an absence of guilt under R.C. 4511.19(A)(1). As a result, Defendant was materially prejudiced by the exclusion.

Based on the foregoing, we find that the trial court abused its discretion by excluding Defendant's breath alcohol concentration test results as irrelevant. Defendant's first assignment of error is sustained.

ASSIGNMENT OF ERROR II Defendant was denied his constitutional right to [p]resent a defense when the court granted the prosecution's motion in limine precluding defendant from offering relevant evidence concerning whether he was under the influence of alcohol. ASSIGNMENT OF ERROR III Defendant was denied due process of law when the court immediately sentenced defendant to the maximum term of imprisonment, a maximum fine and a maximum license suspension based upon bias and prejudice of the trial judge. ASSIGNMENT OF ERROR IV Defendant was denied a fair trial when the court allowed hearsay testimony concerning defendant's erratic driving in argument to the jury. ASSIGNMENT OF ERROR V Defendant was denied a fair trial by reason of improper cross-examination by the prosecutor.

Our disposition of Defendant's first assignment of error renders Defendant's remaining assignments of error moot. Accordingly, we need not address them. See App.R. 12(A)(1)(c).

Defendant's first assignment of error is sustained. The judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion.

Judgment reversed, and cause remanded

The Court finds that there were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the County of Wayne, Municipal Court, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file-stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).

FOR THE COURT

BAIRD, P. J.

CARR, J.

CONCUR