Yes: Ohio Bars Defendants from Challenging Breathalyzers
Posted by Lawrence Taylor on December 4th, 2008I’ve received a lot of email from readers who think there was some misunderstanding at the end of my last post, that it could not possibly be true:
It looks like Ohio is asking themselves the same question I’ve been asking: "What are they hiding?". Oh, and let me repeat that last paragraph in the news story:
(Public Safety Department counsel Joshua) Engel predicted "we will not see any lawsuits in Ohio" because the Ohio Supreme Court established in an earlier ruling that the accuracy of drunken driving testing machines could not be brought up as a defense.
What? An American citizen accused of driving over .08% is not permitted to question the accuracy of the machine — the only blood-alcohol evidence in the case?
Yep. Ohio is the only state in the country saying that if a breath machine is approved for use by the State, it’s accuracy cannot be challenged in court. See the Ohio Supreme Court case of State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984).
That’s right, folks. No typo, no misinterpretation, no mistake. That has been the law in the State of Ohio for 25 years now. Right here in America: if you are accused of drunk driving, you are not permitted to question the reliability or accuracy of the breath machine – and the manufacturers won’t even let you see what’s inside. The machine is judge, jury and executioner.
One of those emailing me, an individual who is highly qualified to comment, wrote:
What is interesting is your comment on Vega and Mr. Engles statement…It is indicative of the attitudes that are created when the validity of forensic science is allowed to hide behind a judges robe. His comment was an arrogant affront to every judge in this state and an insult to our judicial system.
What is also interesting is that in the 25 or so years since Vega, no other state has taken judicial notice nor has any other state had a similar decision.
Just imagine if you were accused of, say, burglary based upon fingerprints found at the scene — and you were not permitted to question the fingerprint analysis. Or you were on trial for murder– but you couldn’t challenge the DNA analysis pointing to you as the killer.
Just another example of "The DUI Exception to the Constitution".
i think people are missing the point, or have no clue, no defense attorneys, not anyone….. these instruments, especially the alcotest, can be made to conform with basic fundamental analytical requirements, that if followed to the letter, and within tolerance, would make the result correct. the fact that a state like ohio would not have these in place that would make the bac right in legal terms, as right as result for a prednisone tablet being tested is wrong. … it is not like they cant shgow the result is right, .. they just refuse to do it themselves, yet the state, through the fda forces all dsrug companies to do it, to showe the work, if you will, the calculation, ….. to show the signal response for standards and samples.
Seen this about U.S. Rep. Vito Fossella?
http://www.washingtonpost.com/wp-dyn/content/article/2008/12/08/AR2008120803371.html
Why I passed this along is that his first BA test showed 0.13 while his second, three hours later, showed 0.17. Huh? (long-time lurker, first-time commenter)
[…] drunk driving defense guru Lawrence Taylor weighs in on the Kafkaesque absurdity of Ohio’s breathalyzer laws in OVI cases. It is true that a […]
I regret to inform you that the person who wrote to you indicating that the Ohio case of State v Vega had never been cited by another court in over 25 years was mistaken.
Following an evidentiary hearing that lasted months in the State of Michigan, the trial court ruled that the BAC Datamaster failed to satisfy criteria under Daubert. As a result, the judge suppressed the test. The Michigan Court of Appeals reversed that decision in People v. Timothy Bain, 2007 Mich. App. LEXIS 1647 (2007), citing Vega as if it were black letter law. The Michigan Court of Appeals further held that, “the Legislature, through the authority granted to the Department of State Police to promulgate administrative rules governing the selection of breath-alcohol testing instruments and their use, has made a legislative determination that testing under the DataMaster is generally reliable and admissible.”
Well, the state police didn’t actually determine that the Datamaster was generally reliable or admissible. Actually, the state police adopted every approved breath test instrument under the “Model Specifications for Evidential Breath Testing Devices.†None of Michigan’s statutes or administrative rules ever mention the word, “Datamaster.†So, whether it was the state police or the Legislature, Michigan adopted virtually every breath instrument ever on the market dating back to the early 1960s. And they’re all great little gizmos that I supposed we’ve determined are “generally reliable and admissible.â€
– William Maze