Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-556216
ATTORNEY FOR APPELLANT Britta M. Barthol
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor Fallon Radigan Assistant County Prosecutor
BEFORE: Kilbane, J., S. Gallagher, P.J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION
MARY EILEEN KILBANE, JUDGE
(¶ 1} Defendant-appellant, Robert Jarrells, Jr. ("Jarrells"), appeals his convictions for driving while under the influence. For the reasons set forth below, we affirm.
(¶ 2} In November 2011, Jarrells was charged with two counts of driving while under the influence in violation of R.C. 4511.19, with each count carrying a furthermore clause listing a prior felony conviction in violation of R.C. 4511.19.
(¶ 3} In April 2012, the state of Ohio ("State") filed a motion in limine, requesting that the trial court prevent the admission of the expert opinion of Dr. Alfred Staubus, Pharm.D., Ph.D. ("Dr. Staubus"). The State argues that his report amounted to a general attack on the reliability of the breathalyzer test, which is barred by State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984). Jarrells opposed, arguing that Dr. Staubus's expert opinion goes to the weight to be given to the breathalyzer test. The trial court held a hearing on the matter. At the hearing, the court stated:
[I]f the ultimate opinion is [Jarrells] could have only tested at a blank, blank, blank, based on [the effect of mouth-alcohol contamination], then it goes to that being an invalid sample. If [the defense] expert is going to say, based on everything I know; three beers, eating McDonald's at this time, and the way the body metabolizes alcohol, he could never have tested at — [0.128] — but it goes to the accuracy of the test. He's saying the test is inaccurate. But the law is saying, no, these tests are accurate and admissible as long as the machine was working properly and all that stuff.
(¶4} After the hearing, the trial court granted the State's motion and issued the following opinion:
State's motion in limine is hereby granted specifically as to the findings set forth in the defendant's expert report authored by Dr. Staubus. If defendant calls Dr. Staubus as a witness in trial, the court will conduct a hearing out of the presence of the jury and revisit said ruling on the State's motion in limine.
(¶5} The matter proceeded to a jury trial in October 2012, at which the following evidence was adduced.
(¶6} On the evening of November 2, 2011, Cleveland Police Officers Renee Collins ("Collins") and Ronald Meyers ("Meyers") were working basic patrol when they observed a vehicle in a no park zone. A female, later identified as Stacie Brickman ("Brickman"), was in the front passenger seat and a male, later identified as Jarrells, was in the driver seat. Collins wanted to check on the vehicle because Brickman was "hanging out the side of the door." Meyers turned their police cruiser around to go behind the parked vehicle. Meyers testified that when he placed his spotlight on the vehicle, Jarrells "became extremely scared, great big eyes" and gave him the "oh, shit" look. Meyers could see Jarrells grab the gear shifter, put the vehicle in gear and take off. The officers proceeded behind Jarrells and Brickman. Meyers testified that Jarrells made a left turn without using his turn signal and the license plate was not properly illuminated, so he activated the overhead lights to effectuate a traffic stop. Jarrells stopped the vehicle, opened the driver's side door, jumped out, and quickly walked toward the sidewalk. Collins approached Brickman and Meyers approached Jarrells. Collins secured Brickman and placed her in the back of the zone car. Both Collins and Meyers observed open containers in the center console of the vehicle — one 22 ounce bottle of Mike's Hard Lemonade and one 22 ounce can of beer.
(¶7} Meyers exited the police cruiser and instructed Jarrells to stop. When Meyers asked for Jarrells's identification, he responded that he did not have a valid driver's license. Meyers testified that Jarrells was "obviously intoxicated." Based on his training, Meyers "could smell a strong odor of alcoholic beverage on him; glassy eyes; just slow movements." Meyers did not perform a nystagmus test on Jarrells, but by observing him, Meyers noticed that he did have the eye nystagmus. Meyers asked him to perform the field-sobriety tests, but he refused. Meyers cited Jarrells for operating a vehicle while intoxicated, changing course without a turn signal, failing to properly illuminate the license plate, and an open-container violation. He was then arrested and taken to city jail.
(¶ 8} Meyers took Jarrells to the OVI room once they arrived at the jail. Meyers met with Cleveland Police Officer Tom Hodous ("Hodous") to conduct the breathalyzer test because he was certified to operate the machine. A video recording of the interview with Jarrells and his breath-alcohol test was played for the jury. In the video, Jarrells stated that he had three beers. He also admitted that he drove the car ten feet because Brickman got sick and he wanted to drive her around the corner. Jarrells submitted to the breathalyzer test at 12:35 a.m. (he was cited at 11:15 p.m.), and the result of the test was 0.128.
(¶ 9} Hodous testified that he was certified to run the breath-alcohol test from June 10, 2011 to June 10, 2012. At the time of the test, he filled out the required form and completed the operational checklist. He also observed Jarrells for over 20 minutes before administering the test to prevent oral intake of any material. Hodous pressed the run button on the machine to obtain the results. Jarrells's test result was 0.128, which was over the legal limit of .08. The breathalyzer used in the instant case was the BAC DataMaster.
(¶ 10} Cleveland Police Officer John Healy ("Healy") testified that he is trained as a BAC operator. He has been certified for about 12 years to run the BAC DataMaster, which is the machine the department uses to measure an individual's blood alcohol content In November 2011, he was the only person calibrating the BAC DataMaster. He calibrates the machine every 7 days to a maximum of 192 hours. A logbook is kept for the machine, which contains the instrument check sheet he completes. He calibrated the machine on October 19, 2011, October 24, 2011, and November 1, 2011. If the machine malfunctioned between these dates of testing, he would have been notified immediately. Healy has performed tests with the BAC DataMaster for six years. He stated that a result of .08 or above, while using the BAC DataMaster, would result in an individual being charged with operating a vehicle while intoxicated.
(¶ 11} Jarrells called Brickman to testify on behalf of the defense. Brickman testified that at the time of the incident, she and Jarrells were in a relationship. On the night in question, Brickman picked up Jarrells and they stopped for food at McDonalds. Then, they went to the convenience store where they purchased a six pack of beer and a bottle of Mike's Hard Lemonade. After they left the convenience store, Brickman began to feel ill while she was driving. She pulled over to the side of the road and turned the engine off. Brickman and Jarrells began to get intimate and she began to feel ill again. She exited her car and went to the passenger's side, which was along the curb, and began to vomit. Jarrells exited the vehicle to check on Brickman. Brickman and Jarrells then got back into the car, but this time Brickman sat in the passenger's seat and Jarrells sat in the driver's seat. They began to get intimate again. Brickman felt ill again and ...