dissenting. I cannot concur that the second part of the trial court’s charge to the jury, as adopted from Masoncup v. State (1933), 47 Ohio App. 32, is erroneous.
*94It is now generally acknowledged that a person who is to “some” extent “under the influence of alcohol” is less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to control an automobile with safety to himself and the general public. The terrible toll taken, both in personal injuries and property damage, by drivers who “drink and drive,” is reason enough for the General Assembly to determine that any person who of his own free will voluntarily lessens his ability to operate a motor vehicle by the use of alcohol, should, while in such condition, be excluded from the use of such vehicles upon the public highway.
The legislative branch has placed no limitation upon the degree of “influence” required. As the Court of Appeals stated in its decision:
“We hold the legislative prohibition runs not against the degree of the influence but against the fact of its existence contemporaneous with the operation of the vehicle.” By holding that the Masoncup instruction is erroneous, the majority has left Ohio courts with the langmage of either State v. Steele (1952), 95 Ohio App. 107, or Toledo v. Starks (1971), 25 Ohio App. 2d 162, as a basis for jury instructions on the meaning of “under the influence.” In Steele, the language was:
“The words, ‘under the influence of alcohol,’ * * * mean that the accused must have consumed sonríe intoxicating beverage in such quantity that its effect on him was to adversely affect his actions, reactions, conduct, movements or mental processes in such manner as to deprive him of that clearness of intellect and control of himself which he would otherwise have possessed under the circumstances then existing.”
And in Starks:
“The condition in which a person finds himself after having consumed some intoxicating beverage in such quantity that its effect on him adversely affects his actions, reactions, conduct, movement or mental processes or impairs his reactions to an appreciable degree, thereby lessening his ability to operate a motor vehicle,”
*95Among other problems, such instructions appear to compel the state to prove, beyond a reasonable donbt, the normal, “un-influenced” driving ability of the accused, and our trial courts to undertake the prodigious feat of explaining to a jury the legalis implicatio of “appreciable.”
The Court of Appeals, in the case at bar, keenly noted:
“We hold the public has a legitimate interest in clearing the highways of drivers under the influence of alcohol. This means getting such drivers off the highway before all reasonable doubt as to their impaired ability to drive has been extinguished by objective evidence of their bad driving.
“If the legitimate interests of the people are to have any meaningful protection at all, the driver under the influence must be cleared from the highway before his impaired ability to drive has become spectacular.
“The rule contended for by appellant would, in practical effect, deny protection to the public in most cases until after an accident.”
The Masoncup instruction is purposely broad, but it is by no means unique. Other jurisdictions use similar phraseology which allows little leeway in the definition of “under the influence.” See State v. Noble (1926), 119 Ore. 674, 250 P. 833; State v. Robinson (1963), 235 Ore. 524, 385 P. 2d 754; Hasten v. State (1929), 35 Ariz. 427, 280 P. 670; Noland v. Wootan (1967), 102 Ariz. 192, 427 P. 2d 143; Steffani v. State (1935), 45 Ariz. 210, 42 P. 2d 615; State v. Storrs (1933), 105 Vt. 180, 163 A. 560; State v. Hedding (1945), 114 Vt. 212, 42 A. 2d 438; Ackerman v. Kogut (1951), 117 Vt. 40, 84 A. 2d 131; State v. Bradbury (1955), 118 Vt. 380, 110 A. 2d 710; State v. Sisneros (1938), 42 N. M. 500, 82 P. 2d 274; State v. Hurd (1940), 5 Wash. 2d 308, 105 P. 2d 59; Snyder v. Denver (1951). 123 Colo. 222, 227 P. 2d 341; State v. Bryce (Me. 1968), 243 A. 2d 726; State v. Chester (Mo. 1969), 445 S. W. 2d 393; Erwin, Defense of Drunk Driving Cases (3 Ed.).
I cannot agree, as the majority believes, that “a conviction satisfying such a vague standard would have only a remote relationship to the intended purpose cf the stat*96ute,” and, thus, run afoul of the constitutional requirements of due process of law.
In enacting R. C. 4511.19, our General Assembly demands that “No person who is under the influence of alcohol # * * shall operate any vehicle * * * within this state.” They did not specify the extent to which such influence must go. If, as I believe, this was purposely done, then the Masoncup instruction is exceedingly relevant to the intent of the statute.
As the court below found: “One purpose of R. C. 4511.19 is to give the government the right to intervene on behalf of the traveling public before the drinking driver has become a manifest menace.”
Even if it could be conceded, however, that the Mason-cup instruction is erroneous, its presence in this case does not constitute prejudicial error. Appellant was given a chemical test, the results of which were properly in evidence, that indicated the concentration of alcohol in his blood to be twenty-two hundredths of one percent by weight. The arresting officer testified that appellant had bloodshot eyes, very slurred speech, and smelled of alcohol. Further, appellant had been observed driving left of center just before the arrest.
Hence, even if the majority be correct in their conclusions, it seems inescapable that the error to which they allude was “harmless beyond a reasonable doubt,” and should not serve as a vehicle for the reversal cf this cause. Chapman v. California (1967), 386 U. S. 18, 17 L. Ed. 2d 705; Harrington v. California (1969), 395 U. S. 250, 23 L. Ed. 2d 284; State v. Tabasko (1970), 22 Ohio St. 2d 36, 257 N. E. 2d 744.
O’Neill, C.. J., and Leach, J., concur in tlm foregoing dissenting opinion.