War On Drugs Department:

MADD Man

Mark Draughn

The news media have been having fun reporting that Glynn Birch, the ...   more »

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The Fourth District Court of Appeals slam the use of portable breath test devices as trial evidence in State v. Shuler, 168 Ohio App.3d 183, 2006-Ohio-4336.  The unique facts of this case were that the defendant was stopped on November 6, 2004 for making an erratic, improper turn.  He was "asked" to leave the vehicle for submission to field sobriety tests.  In addition, the officer administed a portable breath test to the defendant.  The PBT result was .078 (below the legal limit).  The defendant was arrested and taken to the station where the results of the BAC test were .126.

Shuler argued for admission of the PBT test as evidence.  The trial court denied the PBT's admission saying that the PBT devise and technology are not sufficiently reliable to be used as evidence.  This should be viewed as perverse since the very same technology is often used by the courts as a basis for probable cause.  See State v. Coates, Athens App. No. 01CA21, 2002-Ohio-2160, 2002 WL 851765 and State v. Gunther, Pickaway App. No. 04CA25, 2005-Ohio-3492, 2005 WL 1594836.

The court stated, "PBT devices are not among those instruments listed in Ohio Adm. Code 3701-53-02 as approved evidential breath-testing instruments for determining the concentration of alcohol in the breath of individuals potentially in violation of R.C. 4511.19. PBT results are considered inherently unreliable because they may register an inaccurate percentage of alcohol present in the breath, and may also be inaccurate as to the presence or absence of any alcohol at all. See State v. Zell (Iowa App. 1992), 491 N.W.2d 196, 197.  PBT devices are designed to measure the amount of certain chemicals in the subject's breath.  The chemicals measured are found in consumable alcohol, but are also present in industrial chemicals and certain nonintoxicating over-the-counter medications.  They may also, appear when the subject suffers from illnesses such as diabetes, acid reflux disease, or certain cancers. Even gasoline containing ethyl alcohol on a drivers clothes or hands may alter the result.  Such factors can cause PBTs to register inaccurate readings such as false positives. See Tebo, New Test for DUI Defense: Advances in Technology and Stricter Laws Create Challenges for DUI Lawyers, Jan. 28, 2005, www.duicentral.com/aba_journal/.  This lack of evidential reliability provides a basis for excluding PBT results from admissibility at trial.  See Elyria v. Hebebrand (1993), 85 Ohio App.3d 141, 619 N.E.2d 445; State v. Kerns (1998), Van Wert App. No. 15-97-8, 1998 WL 142384.

Wow, but they are still good for P.C.

COLUMBUS - The Ohio Supreme Court will decide whether police officers are allowed to stray from court rules when giving roadside sobriety tests to suspected drunken drivers.

The case justices heard Tuesday challenges a 2002 law that loosened the standards for when the tests can be used as evidence at trials.

The tests commonly include requiring suspects to prove their ability to walk and turn without stumbling, to stand on one leg and to smoothly move the eyes from side to side. The rules, approved by the Ohio Supreme Court, say the officers must adhere to federal standards for giving the tests, which can determine reasonable suspicion of intoxication. Instructions for breath tests are not involved in the current case before the court.

The National Highway Traffic Safety Administration has one set of commonly used standards for how to administer the tests, which include instructions on how to "score" various tests, such as the eye movement test.

The Ohio Supreme court is considering whether lawmakers overstepped their authority when saying officers only have to be in "substantial compliance" with the rules instead of following them exactly.

The case testing the relaxed rules was brought by John Boczar, of Ashtabula County in northeast Ohio, who tried to keep an officer from testifying about the sobriety tests Boczar had to perform when pulled over.

Boczar's attorneys argued that the officer had not strictly followed federal standards on how to conduct the tests. They claimed Ohio's law allowing officers greater leeway in conducting the tests infringed on the rights of courts to determine rules of evidence.

However, a county court allowed the officer's testimony and Boczar pleaded no contest to a charge of driving while intoxicated. The court said the new Ohio law gives a judge leeway in determining whether an arresting officer followed the rules when conducting roadside tests.

The 11th Ohio District Court of Appeals upheld the ruling.

Ohio's law grew out of a 2000 Ohio Supreme Court decision that threw out the conviction of a woman who claimed arresting officers did not strictly follow the National Highway Traffic Safety Administration rules for conducting roadside sobriety tests.

Justice Paul Pfeifer was among the justices who voted to throw out the 2000 case because the prosecution wavered from the strict adherence to testing guidelines. He said lawmakers crossed the line in allowing the adherence to be weakened.

"The General Assembly crowded in on this court's rule-making duty," Pfeifer said.

Sponsors of the law said it was needed because the standards for the tests were too strict and made it too easy for the courts to prevent prosecutors from using sobriety tests at trial.

The Ohio law permits judges to allow evidence if the officer conducted the tests in "substantial compliance" with the federal rules or other recognized standards but does not spell out what "substantial" means.

Associated Press

In a Pew poll in 2001, 74% of Americans believe the "War on Drugs" is a failure.  The news media ...   more »