[Cite as State v. Overmeyer,
2015-Ohio-4479.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 15-CA-15
ROBERT OVERMEYER (NOA) :
(OVERMYER) :
: OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Municipal Court, Case No. 14-TRC-03110
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 27, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AMY S. DAVISON ANDREW SANDERSON
40 West Main Street 73 North Street
Newark, OH 43055 Newark, OH 43055
[Cite as State v. Overmeyer, 2015-Ohio-4479.]
Gwin, P.J.
{¶1} Appellant Robert Overmeyer ["Overmeyer"] appeals his conviction and
sentence after a bench trial in the Licking County Municipal Court for Operating a Motor
Vehicle while Impaired in violation R.C. 4511.19(A)(1)(d).
Facts and Procedural History
{¶2} Overmeyer stipulated he was operating a motor vehicle on December 13,
2014. In the course of that operation, an Ohio Highway Patrol trooper observed
Overmeyer. Overmeyer provided a sample of his breath for chemical testing and the
trooper reported the test results as 0.081 BAC. All of this occurred in Licking County,
Ohio.
{¶3} In a proffer, Overmeyer placed in the record that testimony from the trooper
would have revealed that Overmeyer was not showing signs of impairment at the time of
the offense at issue. Further, it was proffered into the record that the calibration of the
BAC Datamaster used to measure the sample collected from Overmeyer is calibrated to
plus or minus 0.003 and that Mr. Overmeyer's personal sample was less than 0.003 over
the legal limit.
{¶4} Overmeyer was charged with two counts of Operating a Motor Vehicle while
Impaired, “under the influence” in violation of R.C. 4511.19(A) (1) (a); and “prohibited
level” in violation of R.C. 4511.19(A) (1) (d).
{¶5} On March 3, 2015, prior to the commencement of trial, the state dismissed
the R.C. 4511.19(A) (1) (a) charge. Overmeyer then waived his right to a trial by jury and
the matter was tried to the court.
Licking County, Case No. 15-CA-15 3
{¶6} Prior to the commencement of the same, the trial court issued several, in
limine rulings regarding the introduction of evidence during the trial. Pertinent to the
instant appeal, the trial court precluded any evidence and testimony regarding
Overmeyer's lack of impairment at the time of the alleged offense and that his BAC test
result was less than "0.003" over the legal limit and, finally, that the machine in question
is calibrated to within "+/- 0.003".
{¶7} Following a stipulation to the evidence, Overmeyer was convicted of a
violation of R.C. 4511.19(A) (1) (d). The trial court then sentenced the Overmeyer to a
term of incarceration, a mandatory fine and a period of probation.
Assignments of Error
{¶8} Overmeyer raises one assignment of error,
{¶9} "I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN
PROHIBITING THE DEFENDANT-APPELLANT FROM PRESENTING A DEFENSE
BELOW."
Analysis
{¶10} Overmeyer maintains that he should have been permitted to introduce
evidence and testimony in his "per se" OVI case that he did not show signs of impairment
at the time of the alleged offense and further, the trial court erred in refusing to allow
Overmeyer to introduce evidence related to the "margin of error" in the calibration of the
machine used to test the sample of his breath.
{¶11} “It is axiomatic that a determination as to the admissibility of evidence is a
matter within the sound discretion of the trial court. The court of appeals committed error
when it reversed the trial court's ruling. The admissibility of evidence rests within the
Licking County, Case No. 15-CA-15 4
sound discretion of the trial judge and should not be disturbed in the absence of a clear
abuse of discretion. O'Brien v. Angley, 63 Ohio St.2d 159,
407 N.E.2d 490(1980);
Calderon v. Sharkey,
70 Ohio St.2d 218, 223,
436 N.E.2d 1008(1982) (“close evidentiary
questions are within the domain of the trial court”); Beard v. Meridia Huron Hosp.,
106
Ohio St.3d 237,
2005-Ohio-4787,
834 N.E. 2d 323, ¶ 20.
{¶12} Evid.R. 103(A) requires any claim of error relating to the exclusion of
evidence to (1) affect a substantial right of the party and (2) the substance of the excluded
evidence must be made known to the court by proffer or should be apparent from the
context within which questions were asked.
{¶13} “The purpose of a proffer is to assist the reviewing court in determining,
pursuant to Evid.R. 103, whether the trial court's exclusion of evidence affected a
substantial right of the appellant.” In re Walker, 162 Ohio App.3d 303, 2005–Ohio–3773,
833 N.E.2d 362 (11th Dist.), ¶ 37; State v. Mullins, 2nd Dist. Montgomery No. 21277,
2007–Ohio-1051, ¶ 36.
Evidence of non-impairment
{¶14} In State v. French, 72 Ohio St.3d 446, 449,
1995-Ohio-32,
650 N.E.2d 887,
the Ohio Supreme Court held that a defendant must use a motion to suppress in order to
contest the admissibility of blood-alcohol test results on foundational grounds that relate
to compliance with the directives of the Director of Health. Specifically, if the defendant
contends that the test is not admissible because: (1) the sample was not withdrawn within
two hours of the time of the alleged violation; (2) the analysis was not conducted in
accordance with methods approved by the Director of Health; or (3) the test was not
conducted by a qualified permit holder, the defendant must file a motion to suppress.
Licking County, Case No. 15-CA-15 5
French, supra, at paragraph one of the syllabus. Failure to do so or, alternatively, failure
to succeed on the merits of the motion will result in admission of the test results without
the necessity of the State laying a foundation on these issues. Id.
{¶15} However, French specifically states that a defendant may challenge blood-
alcohol test results at trial under the Rules of Evidence. Id. at 452, 650 N.E.2d 887.
“Evidentiary objections challenging the competency, admissibility, relevancy, authenticity,
and credibility of the chemical test results may still be raised at trial.” Id.; State v. Edwards,
107 Ohio St. 3d 169, 171,
2005-Ohio-6180 at ¶ 16,
837 N.E. 2d 752, 757; State v. Luke,
Franklin App. No. 05AP-371,
2006-Ohio-2306, ¶ 26. Accord, Cincinnati v. Ilg,
141 Ohio
St.3d 22,
2014-Ohio-4258,
21 N.E.3d 278, ¶24.
{¶16} In State v. Vega, the Ohio Supreme Court has explained what type of
evidence a defendant may rely upon at trial,
Under the statute, the accused may introduce any other competent
evidence bearing upon the question of whether he was under the influence
of intoxicating liquor. Rebuttable evidence may include non-technical
evidence of sobriety, such as a videotape or testimony by the accused or
by witnesses concerning the accused’s sobriety and the amount of
consumption, as well as technical evidence, such as additional chemical
tests and the completion of field sobriety tests. There is no question that the
accused may also attack the reliability of the specific testing procedure and
the qualifications of the operator. See, e.g., Cincinnati v. Sand (1975), 43
Ohio St.2d 79,
330 N.E.2d 908 [
72 O.O.2d 44]. Defense expert testimony
as to testing procedures at trial going to weight rather than admissibility is
Licking County, Case No. 15-CA-15 6
allowed. Accord State v. Brockway, supra, 2 Ohio App.3d at 232,
441
N.E.2d 602. Since the presumption is rebuttable and the defendant may go
forward with evidence, the “… [d]efendant cannot be heard to complain
that the provisions of R.C. 4511.19 eliminate his presumption of innocence
or hamper the presentation of his defense.” State v. Myers, supra, 26 Ohio
St.2d at 201, 271 N.E.2d 245.
12 Ohio St.3d 185, 189,
456 N.E.2d 1303(1984)1.
{¶17} Even if we assume that the trial court abused its discretion in refusing to
admit testimony concerning Overmeyer's performance on certain of the Standardized
Field Sobriety Tests (SFST), reversal would not be warranted in this case. In Beard v.
Meridia Huron Hosp., the Ohio Supreme Court set forth the following standard,
An improper evidentiary ruling constitutes reversible error only when
the error affects the substantial rights of the adverse party or the ruling is
inconsistent with substantial justice. O’Brien, 63 Ohio St.2d at 164–165,
17.O.O.3d 98, 407 N.E.2d 490. “‘Generally, in order to find that substantial
justice has been done to [a party] so as to prevent reversal of a judgment
for errors occurring at the trial, the reviewing court must not only weigh the
prejudicial effect of those errors but also determine that, if those errors had
not occurred, the jury or other trier of the facts would probably have made
the same decision.’ ” Id., quoting Hallworth v. Republic Steel Corp. (1950),
153 Ohio St. 349,
41 O.O. 341,
91 N.E.2d 690, paragraph three of the
syllabus.
1 R.C. 4511.19 was amended subsequent to the decision in Vega to eliminate the term
"presumption". City of Newark v. Lucas, 40 Ohio St.3d 100, 103,
532 N.E.2d 130(1988).
Licking County, Case No. 15-CA-15 7
{¶18} Concerning the SFST's in the case at bar, the trooper received all six clues
on the Horizontal Gaze Nystagmus (HGN) test. The trooper reported a "strong odor of an
alcoholic beverage" on Overmeyer's breath. Overmeyer admitted to the officer that he
had consumed "a couple of beers earlier."
{¶19} Thus, the trier of fact would have heard the bad as well as the good
concerning the trooper's encounter with Overmeyer and Overmeyer's indicia of
impairment.
Error Existing In Blood Alcohol Testing By the BAC Datamaster Machine.
{¶20} In State v. Schuck, the Ohio Supreme Court rejected Overmeyer's
contention and provided the following analysis,
In vacating defendants’ convictions, the court below essentially held
that the intoxilyzer is only as accurate as the limits stated in its design
specifications, and that the margin for error described therein was such that
the test results for both defendants could not constitute sufficient evidence
of prohibited alcohol concentration. The state argues that this holding fails
to recognize the crucial fact that design specifications are only an estimate
of possible error. The exact level of accuracy of a particular intoxilyzer at a
particular time is readily verifiable by reference to calibration checks. These
checks are regularly conducted for every intoxilyzer. They involve testing a
solution, the alcohol concentration of which is already known to the tester.
The reading given by the intoxilyzer from this solution is then compared to
the actual known alcohol concentration. The range of accuracy is thereby
established.
Licking County, Case No. 15-CA-15 8
We agree with the state’s contention that, in analyzing the accuracy
of a particular intoxilyzer reading, a court may not rely solely on the
intoxilyzer’s design specifications where data from calibration checks have
been properly submitted. In holding that the intoxilyzer results were not
necessarily precise enough to sustain a conviction, the court below relied
on the least reliable measure of accuracy. The design specifications are
simply a maximum range of error for intoxilyzers generally. The actual
accuracy of a given intoxilyzer is determined only by calibration checks.
These checks are the truest measure of accuracy of a particular intoxilyzer
at a particular time. Where this range of accuracy, compared against a
particular reading, is such that an actual alcohol concentration level of .10
percent or more is assured, the intoxilyzer reading is relevant, admissible,
and sufficient to sustain a conviction when coupled with evidence of
operation of a motor vehicle. See State v. Boyd (1985), 18 Ohio St.3d 30,
479 N.E.2d 850, syllabus.
22 Ohio St.3d 296, 297,
490 N.E.2d 596(1986). Accord, State v. Sommer, 5th Dist.
Fairfield No. 04CA36,
2005-Ohio-1707; State v. Brandt, 5th Dist. Tuscarawas No. 2002
AP 02 0008,
2002 WL 31883747(Oct. 4, 2002).
{¶21} In the case at bar, Overmeyer stipulated that he was operating the vehicle
and that his BAC Datamaster test resulted in a reading of .081%. Overmeyer did not file
a motion to suppress alleging that the BAC Datamaster had not been properly calibrated.
Overmeyer did not proffer the pre and post calibration tests of the BAC Datamaster used
in his case.
Licking County, Case No. 15-CA-15 9
{¶22} As our brethren in the Fourth District have observed,
In the case at bar appellant contends that the breath-testing
instrument’s design specifications, which provide for a margin for error for
each breath alcohol test, require the conclusion that his breath alcohol test
fell below the statutory limit. We disagree with appellant. In Schuck, supra,
the Supreme Court determined that in determining the accuracy of a breath
testing instrument’s results, a court should not rely on the instrument’s
design specifications. Rather, a court’s inquiry must focus on properly
submitted calibration checks. In this case, the parties stipulated to the
calibration checks. Thus, in the case at bar the breath-testing instrument’s
design specifications need not be considered and have no bearing on the
accuracy of the instrument’s results.
State v. Sams, 4th Dist. Washington No. 94 CA 48, 1995 WL 649906(Oct. 25, 1995) at
*2.
{¶23} As was true in Sommer, Overmeyer did not proffer any evidence concerning
a pre-test or post-test calibration result; rather Overmeyer, like Sommer, chose to
challenge the design specification margin of error. Accordingly, we find no error in the trial
court's ruling under the facts of the case at bar.
{¶24} Overmeyer's sole assignment of error is overruled.
{¶25} The judgment of the Licking County Municipal Court is affirmed.
Licking County, Case No. 15-CA-15 10
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
