I concur in the foregoing opinion. I do so, however, in what I perceive to be much more simple and direct terms, while acknowledging the scholarliness of the opinion.
A court may take judicial notice of adjudicative facts, i.e., the facts of the case. Evid. R. 201(A). A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Evid. R. 201(B). Pursuant to Evid. R. 201(C), a court may take judicial notice, whether requested to or not. Judicial notice may be taken at any stage of the proceeding. Evid. R. 201(F).
It was generally known within this jurisdiction in the year 1982 that the legislature of the state of Ohio was contemplating a new "Drunk Driving Law." Consideration was being given to a revised law because of the alarming number of traffic accidents and, particularly, fatalities that were occurring *Page 194 and which involved drivers who had been drinking before or during the operation of a motor vehicle. The avowed purpose of the legislature was to make the law of Ohio tough on drivers who engaged in drinking and then proceeded to drive a motor vehicle, thereby subjecting citizens of this state to unreasonable and unfair risks of injury or loss of life. The intent of the legislature was unequivocal and perspicuous, and pursuant to the intention that legislature said, effective March 16, 1983, that:
"Sec. 4511.19 (A) No person shall operate any vehicle * * * within this state if any of the following apply:
"* * *
"(3) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath;
"* * *
"(B) In any criminal prosecution for a violation of this section * * * the court may admit evidence on the concentration of alcohol in the defendant's * * * breath * * * at the time of the alleged violation as shown by chemical analysis of the defendant's * * * breath * * * withdrawn within two hours of the time of such alleged violation." (Emphasis added.)
The statute further continues in subsection (B):
"If there was at the time bodily substance was withdraw a concentration of * * * less than ten-hundredths of one gram by weight of alcohol per two hundred ten liters of his breath * * * such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant." (Emphasis added.)
Thus it appears:
(1) That if the concentration is less than the proscribed amount, then that fact is to be considered in determining guilt or innocence;
(2) That the converse would also be true, to wit: if the concentration exceeds the proscribed amount (and the test had been properly administered) as shown by a test given within two hours of the alleged violation, that such occurrence becomes aper se violation of R.C. 4511.19(A)(3); and
(3) That pursuant to Evid. R. 402 the evidence of the test and its results would be admissible as "all relevant evidence is admissible * * *."
It would be hard to imagine how the legislature could have been more clear in carrying out its intent. If one drinks, drives, is stopped and tested within two hours and tests .10 or greater — he has violated the law. That, in my judgment, should be the ruling of this court to apply to all trial courts in this jurisdiction so there can be no question that it is not better to be apprehended in one locality rather than another if one is charged with a violation of R.C. 4511.19(A)(3).
On the question presented by the appellant through its assignment of error, I would find the assignment well-taken and reverse the judgment of the trial court as to its ruling on what is necessary to prove a violation of R.C. 4511.19(A)(3). Of course, this does not in any way affect the ruling of the trial court as to defendant Ulrich as any such consideration is prohibited by R.C. 2945.67 and the fact that defendant Ulrich has been once placed in jeopardy. See Section 10, Article I of the Constitution of Ohio. *Page 195