[Cite as State v. Campbell, 100 Ohio St.3d 361, 2003-Ohio-6804.]

THE STATE OF OHIO, APPELLEE, v. CAMPBELL, APPELLANT. 

[Cite as State v. Campbell, 100 Ohio St.3d 361, 2003-Ohio-6804.] 

Criminal law — Amendment to criminal charge from one subparagraph of R.C. 

4511.19(A) to another subparagraph of the same subsection does not 

change the name and identity of the charged offense within the meaning of 

Crim.R. 7(D). 

(No. 2003-0045 — Submitted October 7, 2003 — Decided December 31, 2003.) 

CERTIFIED by the Court of Appeals for Hamilton County, No. C-010727, 2002-

Ohio-6064. 

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SYLLABUS OF THE COURT

The amendment of a criminal charge from one subparagraph of R.C. 4511.19(A) 

to another subparagraph of the same subsection does not change the name 

and identity of the charged offense within the meaning of Crim.R. 7(D). 

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O’CONNOR, J. 

{¶1} We are presented with a question of law certified by the First 

District Court of Appeals as having received conflicting answers from the various 

districts. To harmonize the application of the laws of the state of Ohio, we hold 

that the amendment of a criminal charge from one subparagraph of R.C. 

4511.19(A) to another subparagraph of the same subsection does not change the 

name and identity of the charged offense within the meaning of Crim.R. 7(B). 

{¶2} Christopher Campbell was cited for driving while under the 

influence of alcohol in violation of R.C. 4511.19 following an automobile 

collision on May 26, 2001. On Campbell’s citation, the arresting officer recorded 

Campbell’s “blood alcohol concentration” as “.203” and checked a box indicating 
SUPREME COURT OF OHIO

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that he obtained this result via a breath test. This information indicates that 

Campbell violated R.C. 4511.19(A)(6). The officer, however, mistakenly 

indicated that the charge was for violation of R.C. 4511.19(A)(5), which may be 

charged following a blood test. Campbell was charged with violating R.C. 

4511.19(A)(5) and 4511.19(A)(1) and with failure to control his motor vehicle. 

{¶3} On August 28, 2001, the state moved that the R.C. 4511.19(A)(5) 

charge be amended to a charge of violating R.C. 4511.19(A)(6). The motion was 

granted over Campbell’s objection, and the cause was reset for trial. On 

September 27, 2001, Campbell changed his plea to no contest on the (A)(6) 

charge. The state dropped the (A)(1) charge and the charge of failure to control. 

Campbell was found guilty of violating R.C. 4511.19(A)(6) and sentenced 

accordingly. 

{¶4} On appeal, Campbell argued that amending the charge violated 

Crim.R. 7(D). Noting conflicting opinions from other appellate districts, the court 

of appeals affirmed the conviction and certified the conflict to us. Upon due 

consideration, we affirm the court of appeals. 

{¶5} We were faced with an analogous question in State v. Spirko

(1991), 59 Ohio St.3d 1, 570 N.E.2d 229. In Spirko, we unanimously affirmed a 

conviction and death sentence where the defendant claimed undue surprise 

because the state had amended the charge to allege a violation of a different 

paragraph of the same statute. “[I]t is clear that the state merely caused the 

correct section number to be applied to the indictment. The language itself was 

not changed, and it is unclear how defendant can claim that he was ‘surprised’ in 

any way.” Id. at 21, 570 N.E.2d 229. This reasoning holds true here. 

{¶6} The officer clearly indicated that he determined alcohol 

concentration by a breath test. Despite the officer’s erroneous reference to R.C. 

4511.19(A)(5), the substantive information provided on the citation provided 

ample warning to Campbell that he was charged with violating R.C. 
January Term, 2003 

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4511.19(A)(6). There is no prejudice to the defendant and no surprise, undue or 

otherwise. 

{¶7} Subparagraphs (2) through (7) of R.C. 4511.19(A) have the same 

name and identity—driving with specified concentrations of alcohol in bodily 

substances. The only difference among them is the particular bodily substance 

and thus the method by which evidence is obtained to prove the offense. 

Judgment affirmed. 

 MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON,

JJ., concur. 

 O’DONNELL, J., concurs in judgment only. 

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 Michael K. Allen and Philip R. Cummings, for appellee. 

 Richard Feil III, for appellant. 

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