[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
