[Cite as State v. Klintworth , 2011-Ohio-3553.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                             WASHINGTON COUNTY

STATE OF OHIO,                  :
                                :
     Plaintiff-Appellee,        : Case No. 10CA40
                                :
     vs.                        : Released: July 13, 2011
                                :
WILLIAM T. KLINTWORTH,          : DECISION AND JUDGMENT
                                : ENTRY
     Defendant-Appellant.       :
_____________________________________________________________
                          APPEARANCES:

Nathan Kott, West Salem, Ohio, for Appellant.

Roland W. Riggs, III., Marietta City Law Director, and Mark. C. Sleeper,
Marietta City Assistant Law Director, Marietta, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, William Klintworth, appeals the decision and

judgment of the Marietta Municipal Court entered after a jury found him

guilty of OVI per se, in violation of R.C. 4511.19(A)(1)(e). On appeal,

Appellant raises four assignments of error, contending that: 1) the trial

court abused its discretion and committed reversible error when it granted

the state’s motion in limine suppressing portions of his expert’s testimony;

2) the judgment of the trial court is against the manifest weight of the

evidence; 3) the application of R.C. 4511.19(A)(1)(e) is a violation of due
Washington App. No. 10CA40                                                       2


process because the uncontroverted expert opinion demonstrates that a

person of ordinary intelligence cannot comply with the statute’s mandate;

and 4) the selective and arbitrary imposition of blood and urine tests results

in treating similarly situated individuals differently for no rational reason,

which is a violation of the Equal Protection Clauses of the Ohio and United

States Constitutions.

      {¶2} In light of our conclusion that the testimony proffered by the

expert would have constituted an impermissible attack on the general

reliability of Ohio’s approved method for determining alcohol concentration

in urine, the trial court did not err in granting the State’s motion in limine

and thereby excluding such testimony. Thus, Appellant’s first assignment of

error is overruled. Further, based upon our conclusion that the State

presented substantial evidence upon which the jury could reasonably

conclude that all essential elements of the offense of OVI per se had been

established beyond a reasonable doubt, Appellant’s second assignment of

error is overruled.

      {¶3} Finally, as Appellant failed to raise the constitutional challenges

to R.C. 4511.19 set forth in his third and fourth assignments of error, he

cannot raise them for the first time on appeal. As such, we decline to
Washington App. No. 10CA40                                                    3


address them. Accordingly, the decision and judgment of the trial court is

affirmed.

                                   FACTS

      {¶4} Appellant was stopped for a marked lanes violation at

approximately 8:30 p.m. on the evening of February 3, 2010, while a driving

a vehicle owned by his passenger and friend. Trooper Gossett, upon noting

an odor of alcohol asked Appellant how much he had consumed to which

Appellant responded that he had consumed a couple of drinks. Appellant

later told the trooper he had three drinks beginning at about 5:00 p.m.,

having consumed his last drink about forty-five minutes before the stop. At

the trooper’s request, Appellant performed several field sobriety tests and

was eventually placed under arrest. After being arrested, Appellant was

transported to the Washington County Jail where he consented to a urine test

and was charged with operating a vehicle while under the influence of

alcohol in violation of R.C. 4511.19(A)(1)(a).

      {¶5} After the urine test results revealed a prohibited concentration of

alcohol in Appellant’s urine, the complaint was amended to include a charge

that Appellant had operated a vehicle with a concentration of eleven-

hundredths of one gram or more but less than two hundred thirty-eight-

thousandths of one gram by weight of alcohol per one hundred milliliters of
Washington App. No. 10CA40                                                        4


urine, in violation of R.C. 4511.19(A)(1)(e). The case proceeded to a jury

trial on October 14, 2010. At trial, the State presented testimony from

Trooper Gossett, as well as Mark Hiatt, a criminologist with the Ohio State

Highway Patrol Crime Lab, who testified regarding the procedures used to

test Appellant’ urine, which were in compliance with Department of Health

regulations. Specifically, Hiatt testified Appellant’s alcohol level was

measured at .172 grams by weight of alcohol per one hundred milliliters of

urine, using gas chromatography.

       {¶6} Appellant testified on his own behalf and also presented expert

testimony from Dr. Alfred E. Staubus, Ph.D. and emeritus faculty member

with The Ohio State University’s College of Pharmacy. After granting the

State’s motion in limine seeking to exclude any testimony from Dr. Staubus

“on the issue of first urine void testing and its reliability,” the trial court

permitted Appellant to proffer testimony by Dr. Staubus related to the

reliability of first versus second void urine testing. Further, Dr. Staubus

was permitted to testify before the jury at length regarding his opinion that

“urine collection is not a valid reflection of the alcohol in the human body at

the time the void is collected” and that the most important factor to know,

scientifically, is when a person last voided. Dr. Staubus was also permitted

to testify that whether a urine test is valid or not depends on knowing the last
Washington App. No. 10CA40                                                     5


time the person voided before taking the test, and that in this case, that

information is not known.

       {¶7} After hearing the evidence presented, the jury acquitted

Appellant of the driving under the influence charge, in violation of R.C.

4511.19(A)(1)(a), but convicted Appellant of the OVI per se charge, in

violation of R.C. 4511.19(A)(1)(e). The trial court entered its decision and

judgment entry on October 26, 2010, and it is from this decision that

Appellant now brings his timely appeal, assigning the following errors for

our review.

                        ASSIGNMENTS OF ERROR

“I.    THE TRIAL COURT ABUSED ITS DISCRETION AND
       COMMITTED REVERSIBLE ERROR WHEN IT GRANTED THE
       STATE’S MOTION IN LIMINE.

II.    THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

III.   THE APPLICATION OF R.C. 4511.19(A)(1)(e) IS A VIOLATION
       OF DUE PROCESS BECAUSE THE UNCONTROVERTED
       EXPERT OPINION DEMONSTRATES THAT A PERSON OF
       ORDINARY INTELLIGENCE CANNOT COMPLY WITH THE
       STATUTE’S MANDATE.

IV.    THE SELECTIVE, AND ARBITRARY, IMPOSITION OF BLOOD
       AND URINE TESTS RESULTS IN TREATING SIMILARLY
       SITUATED INDIVIDUALS DIFFERENTLY FOR NO RATIONAL
       REASON, WHICH IS A VIOLATION OF THE EQUAL
       PROTECTION CLAUSES OF THE OHIO AND UNITED STATES
       CONSTITUTIONS.”
Washington App. No. 10CA40                                                       6


                         ASSIGNMENT OF ERROR I

      {¶8} In his first assignment of error, Appellant contends that the trial

court abused its discretion and committed reversible error when it granted

the State’s motion in limine suppressing portions of Appellant’s expert’s

testimony. “The purpose of a motion in limine ‘is to avoid injection into

[the] trial of matters which are irrelevant, inadmissible and prejudicial[,] and

granting of [the] motion is not a ruling on evidence and, where properly

drawn, granting of [the] motion cannot be error.’ ” State v. Moon, Adams

App. No. 08CA875, 2009-Ohio-4830 at ¶ 27; citing State v. French, 72 Ohio

St.3d 446, 450, 1995-Ohio-32, 650 N.E.2d 887 (internal citations omitted).

      {¶9} The record reveals that the State filed a motion in limine seeking

to exclude any testimony from Appellant’s expert, Dr. Alfred Staubus, “on

the issue of first urine void testing and its reliability,” arguing that such

testimony essentially amounted to a general attack on urine testing using

only a single sample, which it argued was barred by State v. Vega (1984), 12

Ohio St.3d 185, 465 N.E.2d 1303, State v. Columber, Marion App. No. 9-

06-05, 2006-Ohio-5490, and State v. Peprah, 139 Ohio Misc.2d 6, 2006-

Ohio-4222, 858 N.E.2d 436.

      {¶10} The trial court granted the State’s motion, finding that:

“* * * a reliability challenge on a specific first void urine test is in essence a
challenge to the general reliability of the first void urine test and procedure.
Washington App. No. 10CA40                                                      7


This challenge is precluded by Vega, and that this ruling does not violate the
defendant’s due process rights.”

The trial court then permitted Appellant to proffer testimony from Dr.

Staubus to the effect that blood testing is much preferred over urine testing

in terms of accuracy, and testing of a second urine void is much more

accurate than a first urine void. Further, Dr. Staubus was permitted to testify

before the jury regarding his opinion that “urine collection is not a valid

reflection of the alcohol in the human body at the time the void is collected”

and that the most important factor to know, scientifically, is when a person

last voided. Dr. Staubus was also permitted to testify that whether a urine

test is valid or not depends on knowing the last time the person voided

before taking the test, and that in this case, it was not known when Appellant

last voided prior to being tested.

      {¶11} In State v. Vega, the Supreme Court of Ohio held that “an

accused may not make a general attack upon the reliability and validity of

the breath testing instrument.” Vega at 190. Admittedly, Vega dealt with

breath testing rather than urine testing. In State v. Columber, supra, the

Third District Court of Appeals reasoned that Dr. Staubus’ proffered

testimony regarding his preference for dual breath testing amounted to an

attack upon the reliability of the testing procedures approved by the Director

of the Ohio Department of Health. Columber at ¶ 13. We conclude that Dr.
Washington App. No. 10CA40                                                        8


Staubus’ proffered testimony as to his preference for second void urine

testing rather than first void urine testing is akin to his opinions regarding

dual breath testing and, as such, we find the reasoning of both Vega and

Columber to be both applicable and persuasive.

      {¶12} Our reasoning is supported by other court decisions. See, State

v. Peprah, supra, at ¶ 46, (holding that “this court will not allow the

defendant to us expert testimony to attack the general reliability or general

accuracy of a legislatively determined test procedure – urine testing – as a

valid scientific means of determining blood alcohol levels.”); State v. Estep

(1991), 73 Ohio App.3d 609, 598 N.E.2d 96 (“expert testimony designed to

impeach the general reliability of Ohio’s legislatively determined urine-

alcohol testing procedures is clearly inadmissible[,]” relying on Vega,

supra.); Wellston v. Brown, Jackson App. No. 03CA25, 2005-Ohio-532

(Judge Abele, dissenting, reasoned that Dr. Staubus’ opinion did not

challenge the specific breathalyzer test results but rather was an

impermissible attack on the general reliability of alcohol testing, essentially

opening the door for future arguments that breath and urine testing are

unreliable and only blood tests should be accepted into evidence).

      {¶13} This issue was also considered by the Fifth District Court of

Appeals in State v. Watson, Knox App. No. 06CA000025, 2007-Ohio-2804,
Washington App. No. 10CA40                                                                              9


albeit in the context of a motion to suppress, rather than in the context of a

motion in limine. In Watson, Appellant filed a motion to suppress, which

was ultimately denied, arguing that the test of a first void urine sample is

scientifically unreliable. Watson at ¶ 9. In evaluating what the court

deemed an attack “on the scientific reliability of testing the first void of a

urine test for alcohol[,]” the court determined it was necessary to “look at

the statutory and corresponding administrative code regulations for

guidance.” Id. at ¶ 21. As such, the court reviewed the pertinent version

R.C. 4511.19(D)(1),1 which governed the procedure for collection and

analysis of bodily substances in connection with violations of R.C.

4511.19(A). Id. at ¶ 22. The court also reviewed the former version of R.C.

3701.143, which, just as the version in effect at the time of Appellant’s

arrest, essentially provides that the director of health shall determine the

techniques and methods for chemically analyzing a person’s blood, urine,

breath and other bodily substances in order to ascertain the amount of

alcohol or other controlled substances present therein. Id. at ¶ 23-24.

        {¶14} The Watson court ultimately determined that the “Ohio Director

of Health is silent on whether the urine sample collected should be the first

or second void.” Id. at ¶ 35. Thus, the court reasoned that “[s]ince there is
1
 The version of R.C. 4511.19 in effect at the time of Watson’s arrest had an effective date of September
23, 2004. The statute was revised prior to Appellant’s arrest and the pertinent provision became numbered
as R.C. 4511.19(D)(1)(b).
Washington App. No. 10CA40                                                      10


silence on this issue, this Court will not presume to determine whether it is

necessary to test the first or second void. This is a decision that should be

left up to the Ohio Director of Health.” Id. at ¶ 36. Admittedly, this

reasoning was issued in the context of whether or not urine tests should be

admitted as part of the State’s case, rather than whether a defendant can

attack the reliability of the results through expert testimony at trial.

Nonetheless, we find the reasoning to be pertinent to the extent that it notes

that the Director of Health does not require second void urine testing, rather

than first void urine testing. To that that end, we conclude that Dr. Staubus’

proffered testimony, which opined that first void urine testing was

unreliable, would have constituted an attack on the general reliability of

Ohio’s legislatively determined urine-alcohol testing procedures, which is

clearly impermissible. Thus, we cannot conclude that the trial court erred in

granting the State’s motion in limine excluding such testimony by

Appellant’ expert at trial. Accordingly, Appellant first assignment of error is

overruled.

                        ASSIGNMENT OF ERROR II

      {¶15} In his second assignment of error, Appellant contends that the

judgment of the trial court is against the manifest weight of the evidence.

When determining whether a criminal conviction is against the manifest
Washington App. No. 10CA40                                                      11


weight of the evidence, we “will not reverse a conviction where there is

substantial evidence upon which the [trier of fact] could reasonably conclude

that all the elements of an offense have been proven beyond a reasonable

doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304,

paragraph two of the syllabus; see, also, State v. Smith, Pickaway App. No.

06CA7, 2007-Ohio-502 at ¶ 41. We “must review the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of the

witnesses, and determine whether, in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial granted.” Smith

at ¶ 41, citing State v. Garrow (1995), 103 Ohio App.3d 368, 370–371, 659

N.E.2d 814; State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717. However, “[o]n the trial of a case, * * * the weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the

facts.” State v. DeHass (1967) 10 Ohio St.2d 230, 227 N.E.2d 212,

paragraph one of the syllabus.

      {¶16} R.C. § 4511.19(A)(1)(e) states as follows:

“No person shall operate any vehicle ... if, at the time of the operation, ...
[t]he person has a concentration of eleven-hundredths of one gram or more
but less than two hundred thirty-eight-thousandths of one gram by weight of
alcohol per one hundred milliliters of the person's urine.”
Washington App. No. 10CA40                                                   12


Thus, the prosecution needed only to prove that that Appellant’s

concentration exceeded eleven-hundredths of one gram by weight of alcohol

per one hundred milliliters of urine.

      {¶17} Here, the State Highway Patrol Crime Lab report states that the

alcohol result was “0.172 grams by weight of alcohol per one hundred

milliliters (grams percent) of urine.”       Appellant contends that such a

concentration, if correct, would indicate substantial intoxication, and argues

that the fact that the jury acquitted him of the “under the influence” charge

further bolsters his argument that the urine test results were invalid.

      {¶18} R.C. 4511.19 is a strict liability statute. State v. Sabo, Franklin

App. No. 04AP-1114, 2006-Ohio-1521 at ¶ 18; citing Defiance v. Kretz

(1991), 60 Ohio St.3d 1, 3, 573 N.E.2d 32. When determining whether

Appellant committed the “per se” offense set forth in R.C. 4511.19(A)(1)(e),

the trier of fact was not required to find that Appellant operated a motor

vehicle while under the influence of alcohol or drugs; rather, the trier of fact

was only required to find that Appellant’s chemical test reading was at the

proscribed level and he operated a motor vehicle within the state. Sabo at ¶

18; citing Kretz, supra; citing Newark v. Lucas (1988), 40 Ohio St.3d 100,

103, 532 N.E.2d 130; see also, State v. Gordon, 155 Ohio App.3d 357,

2003-Ohio-6160, 801 N.E.2d 493 at ¶ 57 (concurring opinion noting that an
Washington App. No. 10CA40                                                    13


acquittal on an “impairment” charge is not an affirmative defense to a

conviction under a per se violation). As such, we are not persuaded by

Appellant’s reasoning.

      {¶19} Further, after reviewing the record, we find there was sufficient

evidence    to   establish   appellant    violated    R.C.    4511.19(A)(1)(e).

Accordingly, Appellant’s second assignment of error is overruled.

                  ASSIGNMENTS OF ERROR III AND IV

      {¶20} In his third and fourth assignments of error, Appellant raises

facial and as applied constitutional arguments related to R.C.

4511.19(A)(1)(e). Specifically, Appellant claims that the application of R.C.

4511.19(A)(1)(e) is a violation of due process based upon a void for

vagueness argument. Appellant further claims that the statute’s “selective,

and arbitrary, imposition of blood and urine tests results in treating similarly

situated individuals differently for no rational reason, which is a violation of

the Equal Protection Clauses of the Ohio and United States Constitutions.”

      {¶21} The State contends that Appellant failed to raise these

constitutional arguments at the trial court level and thus has waived them for

purposes of appeal. This Court was recently presented with a similar

situation in State v. Countryman, Washington App. No. 08CA12, 2008-

Ohio-6700. As explained in Countryman, “App.R. 12(A)(2) states, ‘The
Washington App. No. 10CA40                                                      14


court may disregard an assignment of error presented for review if the party

raising it fails to identify in the record the error on which the assignment of

error is based[.]’ ” Countryman at ¶ 8. Similar to Countryman, Appellant

herein does not cite to the record to show where the trial court overruled the

issues he now presents for review. Further, our review of the record

confirms that Appellant failed to raise these issues in the trial court. Thus, as

Appellant failed to raise his constitutional arguments in the trial court, we

first address whether he may raise them for the first time on appeal. Id.

      {¶22} “Failure to raise at the trial court level the issue of the

constitutionality of a statute or its application, which issue is apparent at the

time of trial, constitutes a waiver of such issue and a deviation from this

state's orderly procedure, and therefore need not be heard for the first time

on appeal.” Countryman at ¶ 9; citing State v. Awan (1986), 22 Ohio St.3d

120, 489 N.E.2d 277, syllabus. “The waiver doctrine announced in Awan is

discretionary.” Countryman at ¶ 9; citing In re M.D. (1988), 38 Ohio St.3d

149, 151, 527 N.E.2d 286.

      {¶23} Here, as in Countryman, we decline to exercise our discretion

to review Appellant’s assignment of error and find that he has forfeited his

right to raise the constitutional issues asserted in his third and fourth
Washington App. No. 10CA40                                                          15


assignments of error. See also, State v. Longpre, Ross App. No. 08CA3017,

2008-Ohio-3832.

      {¶24} In addition, however, we note that the Eighth District has

briefly considered and rejected such a claim that R.C. 4511.19’s “per se”

provisions are impermissibly vague. In State v. Keister, 8 Ohio Misc.2d 1,

455 N.E.2d 1370, the court was presented with constitutional challenges to

Ohio’s newly enacted legislation creating “per se” offenses. Refusing to

find that the statute was impermissibly vague, the Keister court rejected the

arguments, reasoning, in part, as follows:

“It is obvious that a person of normal intelligence who is contemplating
mixing drinking with driving can understand the statutory prohibition of
driving with alcohol in his body exceeding the specified level. Various
materials are readily available to the public which explain in common
language how one may estimate the amount of alcohol that may be
consumed without exceeding the statutory limit. And one obviously can
choose to not drink at all if he intends to drive.” Keister at 2.

We find the reasoning contained in Keister to be persuasive. As such, and

in light of Appellant’s failure to raise these constitutional issues at the trial

court level, we decline to address them and they are therefore overruled.

      {¶25} Having overruled each of Appellant’s assignments of error, the

decision and judgment of the trial court is affirmed.

                                                JUDGMENT AFFIRMED.
Washington App. No. 10CA40                                                    16


                             JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing
the Marietta Municipal Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, P.J.: Concurs in Judgment and Opinion as to Assignments of Error
II, III, & IV and Concurs in Judgment Only as to Assignment of Error I.
                                      For the Court,


                                   BY: _________________________
                                          Matthew W. McFarland, Judge
                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
