{¶ 45} I agree that the judgment must be reversed together withthe order denying suppression. {¶ 46} The trial court denied suppression on the basis of Statev. Davis and did not reach the merits of the issue raised by the motionto suppress : whether Mayl's blood was analyzed in accordance with OhioDepartment of Health (ODH) regulations. *Page 726 {¶ 47} Mayl is entitled to have this issue resolved by the trialcourt because the State may very well intend to establish he violatedR.C. 4511.19(A) by establishing a per se violation, i.e. a violation ofsubsection (A)(2) or (A)(5). {¶ 48} Should the trial court conclude that the blood analysis wasnot ODH compliant, then the test result may not be used by the State toprove that Mayl violated R.C. 4511.19(A)(2) or (A)(5) by committing a perse violation. {¶ 49} I write separately to express my view that a determinationthat the blood analysis was not ODH compliant should not necessarilypreclude the admission of the test result in a prosecution based onsubsection (A)(1), i.e. that Mayl was driving under the influence ofalcohol. A subsection (A)(1) violation is not a per se violation. Newarkv. Lucas (1988), 40 Ohio St.3d 1, 3. {¶ 50} While the State's proof of a subsection (A)(1) violationmay not be as straight forward as its proof of a prohibitedconcentration, i.e. per se, violation with an ODH compliant test result,the State should also not be as severely restricted by ODH regulations inusing evidence of test results in subsection (A)(1) prosecutions. SeeState v. Rains (1999), 135 Ohio App.3d 547, 553, citing Newark v. Lucas,syllabus, para. 2. This is because the test result in a subsection (A)(1)prosecution is not as dispositive of whether a defendant violated R.C.4511.19(A) as it is likely to be in a per se, i.e., subsection (A)(2-7),prosecution.
{¶ 51} Newark v. Lucas held: {¶ 52} "In a criminal prosecution for violation of R.C.4511.19(A)(1), or of a municipal ordinance relating to operating a motorvehicle while under the influence of alcohol, a drug of abuse, or alcoholand a drug of abuse, the results of a properly administered bodilysubstances test presented with expert testimony may be admitted inevidence despite the fact that the bodily substance was withdrawn morethan two hours from the time of the alleged violation." {¶ 53} In my opinion, the same approach should be permissible asto a blood test result that is non ODH compliant for a reason or reasonsother than that the sample was not withdrawn within two hours. Just asthe supreme court has authorized the admission of an untimely test resultif presented with expert testimony, the trial court — in asubsection (A)(1) prosecution — should be able to admit a non ODHcompliant test result if presented with expert testimony. The defendantwould thereby be able to cross-examine the expert as to the significanceof any departure from ODH regulations in analyzing the bodily substance. {¶ 54} I must acknowledge that the Fifth District has held that anon ODH compliant test result is inadmissible in a subsection (A)(1)prosecution. State v. Klein (July 15, 1985), Stark App. No. CA 6617; 1985WL 8272. This also appears *Page 727 to be the view of Judge Painter. Painter, OhioDriving Under the Influence Law (West Group 2003 Ed.) p. 118. Finally,the only defect mentioned in State v. Davis was the failure of proof that the blood had been withdrawn within two hours of the accident.
{¶ 55} I agree with the majority opinion to the extent that Statev. Davis should not apply where the aggravated vehicular homicide chargeis based upon a per se violation of R.C. 4511.19(A). {¶ 56} The earlier version of R.C. 4511.19(B) which was applicablein Davis provided that a defendant would be presumed to have been under the influence of alcohol if a timely, ODH compliant blood test revealed blood alcohol content of .10 or more. Id., 267.
{¶ 57} That presumption was eliminated and was replaced by the per se violations March 16, 1983. See Newark v. Lucas, 103. Thus, the sameconcern for accuracy of test results — promoted by timely, ODHcompliant tests — is necessary for aggravated vehicular homicidecharges based on per se violations, as is necessary in prosecutions forper se violations themselves. {¶ 58} Where, as here, however, the charge may be based on R.C.4511.19(A)(1), Davis is still good law because the State is not requiredto prove that Mayl was driving with a prohibited concentration of alcoholin his blood — a per se violation — but, rather, that he wasdriving under the influence of alcohol. Such being the case, "defects inconducting the blood test, if any, go to the weight of the evidence andnot its admissibility" because "(d)riving under the influence may beproved other than by the statutory presumption." Davis, 267. Put in current parlance, a violation of R.C. 4511.19(A) may be proved by other than proof of a prohibited concentration of alcohol in the defendant's blood.
{¶ 59} The trial court accorded Davis a more sweeping effect than is warranted since the enactment of the per se offenses. The trial court must determine whether the blood analysis was ODH compliant by deciding the motion to suppress on the merits. *Page 728