dissenting. Because I believe that the trial court erred in its refusal to consider the simulated testing of appellee on a BAC Verifier machine, I dissent.
To sustain a conviction under Section 2133.01(b)(2) of the Columbus City Code, a per se offense, the prosecution must prove beyond a reasonable doubt that: (1) the accused was operating a vehicle within the city and (2) at the time of operation the accused had a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of breath. State v. Boyd (1985), 18 Ohio St. 3d 30, 18 OBR 68, 479 N.E. 2d 850. The evidence is limited to that relevant to one or both of the above elements. Id. at 31, 18 OBR at 69, 479 N.E. 2d at 851. *167Thus, an attack may not be made against the general reliability of the BAC Verifier to rebut the presumption created by the statute that the defendant was under the influence of alcohol. See State v. Vega (1984), 12 Ohio St. 3d 185, 12 OBR 251, 465 N.E. 2d 1303. A defendant may, however, challenge the accuracy of his specific test results. State v. Tanner (1984), 15 Ohio St. 3d 1, 15 OBR 1, 472 N.E. 2d 689. A defendant may, for example, introduce the results of an additional chemical test, as provided for in R.C. 4511.19(B). See Vega, supra, at 189, 12 OBR at 255, 465 N.E. 2d at 1307. The purpose of such evidence would be to demonstrate, through a qualified expert, that the amount of alcohol consumed should not have resulted in a BAC level above .10.
In the case before us, the appellee attempted to introduce evidence concerning a simulated test conducted by an expert on a BAC Verifier machine. The simulated test was designed to recreate the drinking pattern of the appellee on the night of the arrest in order to show what his BAC should have been at the time of arrest. When the trial court expressed reservations about the reliability of the test, appellee’s counsel requested that the court voir dire the witness concerning the test’s scientific validity before ruling on its admissibility. Instead, the court excluded the evidence based upon the prosecution’s argument that it was impossible to exactly duplicate the circumstances of the offense.
Exact duplication of conditions existing when the experiment is made and those existing at the time of the occurrence in question is not a precondition to admissibility.
“Evidence of experiments performed out of court, tending to prove or disprove a contention in issue, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence.” (Emphasis added.) St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio RR. Co. (1935), 129 Ohio St. 401, 2 O.O. 396, 195 N.E. 861, paragraph one of the syllabus.
In the present case, the . court excluded the experiment without hearing any evidence as to its scientific validity. The trial court should have conducted • a review of evidence concerning the test’s validity and the qualifications of the expert witness. Once these two determinations were made, the trial judge would have been in a position to make an informed ruling on the proffered experiment.
The admission or rejection of evidence of out-of-court experiments is within the sound discretion of the trial court. “ ‘* * * [T]he exercise of such discretion will, upon appeal, be viewed somewhat more critically when such evidence is rejected than when it is received.’ ” St. Paul Fire & Marine Ins. Co., supra, at 406, 2 O.O. at 399, 195 N.E. at 864. Under this standard, which the majority endorses, the trial court’s rejection of the evidence without a hearing was an abuse of discretion. See State v. Adams (1980), 62 Ohio St. 2d 151, 16 O.O. 3d 169, 404 N.E. 2d 144. Since the proffered evidence appeared crucial to appellee’s defense, the court’s ruling effectively denied him the opportunity to present an adequate defense. Accordingly, I would affirm the judgment of the court of appeals.
Sweeney, J., concurs in the foregoing dissenting opinion.