Last month we reported two Ohio municipal court judges’ taking the relatively new position that it's allowable, in some cases, for defense lawyers to present testimony challenging results from a portable breath tester used on suspected drunken drivers -- decisions apparently having the potential for “wide impact” in the state. ( Previous post )
Central Ohio's Pickaway County (Circleville) Municipal Court Judge Gary Dumm last June 2nd. held that his court won't accept evidence from the Intoxilyzer 8000 breathalyzer until the state offers scientific proof that they provide accurate readings, USAToday reported last Monday. Judge Grimm had said that while he found the test results are admissible under Ohio evidence rules, the devices could be vulnerable to interference from smartphones and that readings may be skewed depending on how long a suspect blows into the them. (Judge Dumm’s decision )
Now, Athens County Judge William Grimm has ruled that expert witnesses could be called to testify about the reliability of the Intoxilyzer 8000 if the testimony is specific to the case. ( Judge Grimm’s decision )
Tim Huey, president-elect and DUI chairman of the Ohio Association of Criminal Defense Lawyers, was quoted as saying the decision “was huge, changing the landscape of DUI trials in Ohio, in terms of being able to introduce all relevant evidence,"
The article continued by saying that “While the ruling applies only to Athens County, Huey predicted that it would impact the thinking of judges elsewhere in the state, who may have been inclined to rely upon the 1984 Ohio Supreme Court decision in State v. Vega. Grim wrote that that precedent has been misread as barring any challenges to the reliability of breath-test instruments.”
As we noted in our previous posting, 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 10th. 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 month, stated 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."