State v. Ward

474 N.E.2d 300, 15 Ohio St. 3d 355, 15 Ohio B. 477, 1984 Ohio LEXIS 1302

• Court: Ohio Supreme Court
• Decided: December 31, 1984
• Docket: Nos. 84-613 and 84-800
• Status: Published

Opinions

J.P. Celebrezze, J.

The question presented by these appeals is whether certified copies of police logs showing calibration of intoxilyzer equipment are admissible against a defendant in a prosecution for violation of R.C. 4511.19. For the foregoing reasons, we hold that such copies are admissible despite the absence of the calibrating officer at trial.

Before this court’s adoption of the Ohio Rules of Evidence in July 1980, the question at bar was governed by R.C. 2317.42 and our decision in State v. Walker, supra.

“Official reports made by officers of this state, or certified copies of the same, on a matter within the scope of their duty as defined by statute, shall, in so far as relevant, be admitted as evidence of the matters stated therein.” R.C. 2317.42.

This court in Walker interpreted that statute and held:

“In a criminal prosecution for violation of R.C. 4511.19 or a municipal ordinance relating to driving a vehicle while under the influence of alcohol, certified copies of pages from a permanent log book maintained by a police department in accordance with regulations promulgated by the Director of Health pursuant to R.C. 3701.143 are admissible in evidence as an exception to the hearsay rule under R.C. 2317.42.”

Thus, before July 1980, police logs showing calibration of intoxilyzer equipment were clearly admissible as an exception to the rule against hearsay.

This court’s purpose in adopting the Ohio Rules of Evidence was to clarify and codify the existing law. Evid. R. 102 enunciates that purpose and provides in part: “These rules shall be construed to state the common law of Ohio unless the rule clearly indicates that a change is intended and shall not supersede substantive statutory provisions.” We find no clear indication in the Rules of Evidence of an intention to change the effect of R.C. 2317.42 and Walker, supra.

Appellants’ contention that Evid. R. 803(8) must be construed to supersede R.C. 2317.42 and to overrule Walker has no merit. Evid. R. 803(8) is the public records and reports exception to the rule against hearsay and provides:

“Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.”

Appellants rely solely on the language, “* * * excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant * * *,” to argue that R.C. 2317.42 and Walker are defunct, and that the logs in this case were improperly admitted at trial. The above-quoted language, in and of itself, does not clearly indicate the intent to change the preexisting common law. The staff notes to Evid. R. 803(8) expressly indicate that R.C 2317.42 is to remain in effect as an exception to the rule against hearsay: “* * * [T]he rule [803(8)] permits introduction of public reports subject to the exceptions enumerated. Several Ohio statutory provisions accomplish a similar result. See, for example, R.C. 2317.39 and 2317.42 regarding public records.” Furthermore, there is no mention in the staff notes of any intent to change the common law enunciated in Walker.

We interpret the exclusionary language of Evid. R. 803(8) as consistent with the law prior to its adoption. The phrase, “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel * * *,” prohibits the introduction of reports which recite an officer’s observations of criminal activities or observations made as part of an investigation of criminal activities. This phrase does not prohibit introduction of records of a routine, intra-police, or machine maintenance nature, such as intoxilyzer calibration logs. Such routine records are highly likely to be reliable, and are precisely the type contemplated as admissible by the public records exception to the rule against hearsay.

Accordingly, we reject the reasoning of the court of appeals in State v. Emch, supra, and affirm the judgment of both of the courts of appeals in the cases at bar.

Judgments affirmed.

Celebrezze, C.J., W. Brown, Sweeney, Locher and Holmes, JJ., concur. C. Brown, J., dissents.