Ohio DUI/Breathalyzer challenges

Circleville, Ohio Municipal Court Judge Gary Dumm last Thursday ruled test results from the Intoxilyzer 8000 will not be admitted in his court until the state can present scientific proof that the machine's technology is sound, the Columbus Dispatch this past weekend revealed. Dumm is the first judge in Ohio to rule that results from the breathalyzer cannot be used to convict drivers of driving under the influence. Critics of the machine’s use hope to route a case to the Ohio Supreme Court for a ruling potentially banning its use statewide. [ Decision ]

Several days earlier, Athens County Municipal Judge William A. Grim had agreed to hear testimony challenging the Intoxilyzer 8000, as well, to determine whether it would be allowed in trial. [ Articles Here & Here ]

Typically, such challenges have been dismissed, citing the 1984 Ohio Supreme Court ruling in State v. Vega where it was held that a defendant’s right to a fair trial was not harmed by not permitting expert witnesses to attack the reliability of such machines in general. Grimm's ruling, though, allowed the testimony, with the judge writing that while Vega is often cited to support the claim that breath-testing machines cannot be challenged in court once they're approved by the Ohio Department of Health, he thinks judges have the authority to determine whether that evidence is allowable and that there were important legal issues left unresolved.

In the years since the Vega decision some things have changed. For one thing, the statute in question was amended in 1983, superseding Vega in some respects. Two years after Vega, in the vehicular homicide case, State v. Scheurell, Ohio’s 10^th. District Court of Appeals said of the revision that, "accordingly, it would appear that we have reverted to the pre-presumption version of the statute, insofar as proving a charge of driving under the influence of alcohol pursuant to R.C. 4511.19(A)(1) is concerned. Under those circumstances, the logic supporting Parton v.. Weilnau, remains compelling. Because the field of chemical testing for alcohol concentration is beyond the common knowledge of laymen, a jury is not qualified to assess this kind of special scientific evidence, if unassisted by a knowledgeable expert."

Judge Dumm's decision in Circleville Municipal Court, last week, relays too, that recent supreme court decisions such as State v. Edwards in 2005, indicate "a defendant at trial may challenge breath tests on grounds other than that the results were illegally obtained because they were obtained in noncompliance with health department rules."

"The Ohio Health Department, which calibrates and certifies the Intoxilyzer 8000, bought 700 of the machines with a $5 million federal grant in 2009, according to the Dispatch. 220 units are already in use in 79 of Ohio's 88 counties, although not some of the larger metropolitan areas such as Cuyahoga, Franklin, and here in Hamilton County.