Appeals court rules breathalyzer unreliable

An appellate court ruled in favor of a Sandusky attorney Friday, agreeing with Erie County Municipal Court Judge Paul Lux that a breathalyzer machine used by the Ohio State Highway Patrol was not reliable in procuring consistent readings of blood-alcohol content.
Courtney Astolfi
Dec 17, 2013
Kenneth Bailey, an attorney with the Bailey Legal Group, was representing Juan Jimenez for a 2012 operating a vehicle under the influence of alcohol offense on the Ohio Turnpike.

Troopers pulled Jimenez over on Oct. 5, 2012, for a marked lanes violation. After Jimenez failed field sobriety tests, he submitted to both portable and BAC Datamaster breath tests.

The legal alcohol limit in Ohio is 0.08 percent. According to the Datamaster test, Jimenez’s blood-alcohol content registered at 0.154 percent, so he was charged with an OVI.

When Jimenez and Bailey appeared before Lux at a suppression hearing, they argued the results of the test should be thrown out.

Procedurally speaking, Datamaster machines must be calibrated once every seven days, and are only taken out of commission when they produce two faulty readings in a row, Bailey said.

“The government always wants to say the only relevant calibrations are the one from the week before the subject takes the test and the one from the week after that” Bailey said.

But Bailey disagreed. He went to the Milan post of the State Highway Patrol to speak with troopers about inaccurate Datamaster readings from an extended span of time and review other calibration test results.

“We found the test failed nine times in 60 days” Bailey said.

Bailey argued calibrations that occur in the weeks and months before and after —not just the single week before and after— a suspect submits to the test should be taken into account when determining a Datamaster’s reliability in court.

Lux agreed, Bailey said.

“The judge said it tested outside its limits so many times that this machine is just not reliable,” said Bailey’s father and fellow Bailey Legal Group attorney, K. Ronald Bailey.

Lux sided with Bailey in the suppression hearing, agreeing to bar Jimenez’s Datamaster results from being mentioned at his jury trial.

The Erie County prosecutor’s office challenged two aspects of Lux’s findings.

First, prosecutors disagreed that the Datamaster results should be thrown out. Second, they argued a suppression hearing was not the proper time to throw out that kind of evidence.

Prosecutors appealed the decision Friday before the Ohio Sixth District Court of Appeals. But the appellate court’s judges ultimately sided with Lux and Bailey, court documents state.

Bailey said the case could set a precedent for future OVI cases.

“A lot of those machines are about 20 years old. It’s just a reminder to people that it’s very old technology and warrants being challenged” Bailey said.

Comments

Capt. Ford

And that defense just cost much more than pleading no contest, accepting your 3 days and paying double for insurance.......just don't get another one.

Pioneer Trail Pimp

I agree. Who cares if you are not guilty. Just roll over and take whatever punishment is dealt. We all know that law enforcement never makes mistakes. The nerve of some people!

4-wheeler al

I remember when it was 1. something, now Since they drop it down to .08 they started making millions.

looking around

It's about time this was challenged, the field sobriety tests given with all the disco lights from the cop car should as well be challenged. I hope a lot of cases will be over turned based on these findings.

No Wake

As far as I've read, there's nothing in the ORC that requires a driver to submit to field sobriety tests, only the chemical tests for alcohol in the bloodstream. Anything you do beyond that, as they say, can and will be used against you in a court of law.

I wouldn't go as far as calling someone a fool for following an officer's instructions on the side of the road, but a refusal to perform field sobriety tests on the side of the road would carry the same weight in court as if the driver had voted Rebublican or Democrat -- since it's not against the law, it's incidental to the case.

yougogomar

Correct. Refuse everything.

Many assume they have to perform their silly field sobriety tests and that's simply not true. Just understand that by not giving them evidence, they probably won't be as courteous and professional as they should be.

Seacher

But, if you refuse the field sobriety test.....you ARE getting arrested and your car towed. I was once stopped after coming home from a bachelor party. I had quit drinking some hours before because I knew I had to drive and was nowhere close to drunk. I was given a field test. I felt I did fine and then a second officer showed up with a portable breathalyzer. I asked, 'Did I not pass the tests'. Wouldn't answer and told me I could take it or head down to the precinct. So, I did it. He wouldn't even tell me the results. He just said I was barely under (which I thought was BS). The other cop also searched my vehicle during this time without my permission which is also illegal. Cops often violate our rights and are rarely held accountable. Above all, he had no reason to even pull me over in the first place(except for time of night) and never would give me a reason. I knew I had rights that I could of objected or refused to participate but everyone would of had me getting handcuffed and my car towed on a night I did nothing wrong.

lugnut2511

Well then all ten of my should be tossed out!!! jk jk jk

bama

Want a real old fashion way out of being wrongfully accused of drunk driving, DON'T DRINK AND DRIVE in the 1st place. Everyone is opposed to the enforcement of drunk driving until someone they know is killed by one or a family with children is taken out by one. Then and only then does anyone get offended or upset and want that person hung on the court house lawn.

yougogomar

Here's the thing. This isn't going to force the OSHP to fix their broken machine, instead they'll just instruct their troopers to draw blood or urine instead. It happened that breath was just easier on the drunk driving suspect, now it gets a lot more personal with the faulty breathalyzer.

Mum-of-One

Clear up the confusion, don't drink and drive. It's that simple.

looking around

I have no problem with enforcement of the laws, however the law states that you may legally drive under .08 limits. What I don't like is over zealous enforcement and at times outright entrapment to bolster enforcement quotas and pad pay rolls for court time. Any test administered should be fool proof and 100% accurate or it should not be used. Field sobriety tests should in no way be admissible as each encounter is of different circumstances and under different conditions. Allegations of questionable driving as crossing the center line, failure to signal ect. given as the reason for the initial stop should require dash cam evidence. The issues surrounding ovi have become more economically driven than in the interest of public safety and thus has become corrupt. The condition of the driver being stopped is an assumption of the officer and the burden of positive evidence should be on him and tests results by indisputable methods.

I have heard eyewitness testimony from passengers as the performance of the driver being subjected to testing that wildly varied from law enforcement accounts as well as accounts of exactly what the driver had consumed.

Peninsula Pundit

+100 to all comments regarding the specious nature of DUI prosecutions. If a person is really impaired enough, even if they try to hide it, it will be easy to tell they're impaired. Remember, the only reason the level is 0.08 (or even the 0.10 before that), is because the federal government blackmailed the states with withholding of highway funds if they didn't lower the limits.