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.