As I’ve written over and over in past years, breath machines used in DUI cases to determine blood alcohol level are inaccurate and unreliable. See. for example, How Breathalyzers Work (and Why They Don’t), Attorney General Finds Massive Breathalyzer Inaccuracies: Police Shut Down All Machines, and 400 Wrongly Convicted in Washington: Faulty Breathalyzers. And yet these machines continue to be treated by the courts and legislatures as bullet-proof. Laws continue to admit breath test results in as nearly conclusive evidence of guilt — and severely restrict those accused of challenging their accuracy.
One of the most significant examples was an Ohio Supreme Court case, State v. Vega. In that 1984 case, the court incredibly held that in DUI cases breath test results could not be challenged: if the state legislature approved the use of the device, then defense attorneys could not attack it in cross-examination or offer independent evidence of its inaccuracy or unreliability. See my post Ohio Bars Defendants from Challenging Breathalyzers.
This has been the law in Ohio for over 30 years: a citizen accused of drunk driving could not question the machine’s accuracy. A few days ago, however, that blind acceptance finally changed….
Ohio Supreme Court Ruling Could Change State Breathalyzer Test Laws
Columbus, OH. Oct 1 – Defense attorneys are calling it a major blow to alcohol breath machines used to convict people of driving under the influence.
For the first time, the Ohio Department of Health must turn over all data captured by a machine that helps to determine if a person is driving under the influence. The ruling by the Ohio Supreme Court is a considered a victory by defense attorneys. Many have argued for years that denying that information to clients makes it difficult to prove if the alcohol breath machines are reliable.
Defense attorneys believe the ruling will give them a better chance of helping prove their clients were not above the legal limit when they blow into the state’s two approved breathalyzer machines.
The Ohio Health Department says the machine is scientifically proven to accurately measure a person’s alcohol level in their lungs. It’s the breathalyzer police use to determine if someone is guilty of driving over the limit.
“Clearly, if you have a situation where a breath test machine shows a lot of issues, then the folks who blessed it really ought to be re-thinking that decision,” says attorney Tim Huey…
The Ohio Supreme Court was also puzzled, and later ordered the state to turn over the information.
“You’re telling me that if a defendant is about to go to jail, and a physicist from Harvard that wanted to say these machines are voodoo and they don’t work… you’re saying that would be improper and not admissible,“ said Justice William O’Neill.
“Correct,” answered Jennifer Bishop, an attorney representing the city of Cincinnati…
Welcome to “The DUI Exception to the Constitution”. At least, this court got it right…this time.