Article from: www.thenewspaper.com/news/39/3975.asp

12/14/2012

Ohio Appeals Court Refuses Challenge to Breath Test Reliability
Ohio Court of Appeals rules that breath testing machines cannot be challenged on accuracy grounds.

Earlier this month the Ohio Court of Appeals overturned a lower court ruling to defend the principle that the accuracy of breath testing machines is presumed to be perfectly accurate. Under state statutes, the reading of the machine determines guilt, and the burden is on the defendant to prove otherwise.

The decision was a blow to Justin C. Miller who had been pulled over for speeding on November 24, 2011 and subsequently arrested for driving under the influence of alcohol (DUI). At trial in April, Miller's attorney demanded that the state prove its Intoxilyzer 8000 breath testing machine was reliable. Prosecutors cited the 1984 court decision Ohio v. Vega saying any challenge to the scientific validity of the machine was automatically invalid. A Portage County Municipal Court judge believed this was insufficient and refused to admit the breath test evidence. The state appealed.

Miller's attorney insisted this appeal violated proper court procedures in which only final orders could be challenged in a higher court. The judge had granted a motion in limine, which is a tentative, pre-trial ruling that prevents a lawyer from bringing highly prejudicial and disputed evidence before a jury. The appellate majority believed the label was irrelevant.

"We disagree," Judge Diane V. Grendell wrote for the court. "The municipal court's ruling in the present case was not a tentative or precautionary ruling, but determined that 'the defendant's breath test shall not be admitted during the trial.' Any doubt as to the finality of this ruling is removed by the court's dismissal of the charge of operating a vehicle with a prohibited breath alcohol concentration."

If the state can prove its employees followed the regulations on the books, its job was done. Attacks could then not be used to suppress the evidence. Instead, any proof of unreliability would have far less impact and could only be considered as a factor in the weight of the evidence.

"In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in Vega," Grendell wrote. "The court has emphasized that, when regulations are promulgated pursuant to R.C. 4511.19 and 3701.143, it must be presumed that the Director of Health acted upon adequate investigation and that the courts 'must defer to the department's authority and not substitute our judgment for that of the Director of Health.'"

The three-judge panel remanded the case to the lower court instructing it to accept the Intoxilyzer 8000 as reliable but to respond to the specific challenges raised by Miller.

"Because the instrument is presumed to be a reliable breath testing instrument, appellee had the burden to produce evidence that the Intoxilyzer is not reliable," Judge Cynthia Westcott Rice wrote in a concurring opinion. "I write separately to acknowledge that it is the defendant's, not the state's, burden to go forward, once the presumption of reliability has been triggered."

A copy of the decision is available in a 60k PDF file at the source link below.

Source: Ohio v. Miller (Court of Appeals, State of Ohio, 12/2/2012)

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