DUIOhio Court Rules on Hospital's Certification
October 6, 2005
The Ohio Supreme Court's narrow decision in a Dayton aggravated vehicular homicide case will be cheered by criminal defense lawyers throughout the Buckeye State, but it seriously obstructs public efforts to rid the highways of dangerous drunken drivers.
The court, voting 4-3 in a ruling written by Justice Judith Lanzinger, threw out the conviction of John Mayl, who was at the wheel of a pickup truck that struck and killed a construction worker, Lorna Dingess, 30. The woman was part of a work crew repairing potholes on I-75 in Dayton around midnight on Nov. 19, 2000.
About 40 minutes after the incident, a sample of Mayl's blood was taken in a hospital during treatment for minor injuries. The test put his blood-alcohol content at 0.207, more than twice the state's 0.08 threshold to prove drunken driving and, thus, aggravated vehicular homicide.
It would seem like a slam-dunk case, but the court ruled the test was invalid and threw out the conviction because the hospital was not certified by the state health department to perform the forensic procedure for use in court, and because it disposed of the blood sample within five days rather than holding it for one year.
According to the court decision, no one quibbled with the accuracy of the blood test, or claimed that the blood analysis was conducted improperly by hospital personnel or the laboratory.
While we are mindful that the law must be scrupulously followed, this is one of those cases that rends the heart of anyone who expects justice in the courts. The perpetrator of the crime is acquitted, but the victim is still dead.
Mayl, who had objected to the blood test but was told it was needed for medical reasons, did not go entirely unpunished. He pleaded no contest, was given a four-year prison term, and served a year before being released on appeal.
Nonetheless, the Supreme Court - which reversed opinions by at least six state appellate courts with its ruling - has made it unnecessarily difficult for authorities to gain convictions in drunken driving cases. None of Toledo's hospitals currently is certified by the state for these particular tests, even though doing so seems to be largely a matter of paperwork rather than expertise or equipment.
This means that perfectly competent hospitals and laboratories must now go to the considerable extra trouble of obtaining health department permits, or the legislature must amend the law, or both. The sooner a solution is accomplished, the safer that motorists will be in this state.
The DUI law already is among the most complicated and heavily nuanced statutes in Ohio's law books, a legacy of the bad old days when drunken driving was winked at rather than vigorously prosecuted. Creating an additional hoop for authorities to jump through to get convictions is probably not what the court intended, but that is the practical effect of its ruling.
It is especially distressing when the list of Ohioans with a dozen or more DUI arrests continues to grow.
More:
Glitch in DUI May Be Trend
Oct. 06, 2005 Judge tosses out a charge because a breath test operator was not certified on particular machine.
By DAVID WEISS dweiss@leader.net
WILKES-BARRE Â A judge's ruling that stopped a police officer from testifying about a man's blood-alcohol level in a drunken-driving case could weaken other cases, attorneys said.
Luzerne County Court of Common Pleas Senior Judge Patrick Toole on Tuesday ruled Wayman Miers, an officer at the county's DUI Processing Center, could not testify about the suspect's blood-alcohol level because Miers was not certified to operate a particular breath-test machine.
An official at the center insists Miers is certified and the decision just highlights a mix up regarding the equipment used at the center.
Miers used the center's Breathalyzer, called an Intoxilyzer 5000EN, to learn David Kresge had a blood-alcohol level of 0.21 percent after he drove a vehicle into a Wilkes-Barre building in November. An adult driver is considered intoxicated with a blood-alcohol level of 0.08.
Kresge's attorney, Joseph Albert, challenged Miers' qualifications to operate the machine saying Miers was certified on the Intoxilyzer 5000, not the Intoxilyzer 5000EN, so he should not be allowed to testify.
Toole agreed, and one count of drunken driving was dismissed.
The jury still convicted Kresge on a separate drunken-driving charge that does not require a blood-alcohol level.
Despite the conviction, attorneys say the ruling will shorten Kresge's sentence and could impact all pending cases from the center.
Under the drunken-driving law, Kresge would have most likely faced a sentence of 90 days to five years in prison based on the high blood-alcohol level and a prior drunken-driving arrest, said local defense attorney Ferris Webby .
Because the blood-alcohol level charge was dismissed, that level could not be used against Kresge at his sentencing, Webby said.
That should reduce Kresge's sentence to five days to six months in prison, Webby said.
Webby said the new drunken-driving law has defense attorneys scrambling for ways to fight the blood-alcohol level because the punishment increases with higher levels.
Because of the ruling, he expects defense attorneys handling drunken-driving cases to subpoena more records related to the testing .
The center's coordinator, Frank Martin, said he and the center's other processing officers have certification cards indicating they are qualified to operate the Intoxilyzer 5000. The certification makes no reference to any specific model number, Martin said.
He said he checked with the state when the center began using the EN model about eight years ago. The state said the officers needed no additional certification to operate the newer model, according to Martin.
Besides, he said, the officers do nothing different in operating either of the machines or analyzing results. The only difference in the machines is an internal element, he said.
"It's like buying a Chevrolet Impala. You could get a four-door, you could get a two-door," Martin said. "It's not going to make the car run any different. It's just a loophole they found."
Defense Attorney James Haggerty said the state's departments of health and transportation set up the rules regarding the breath tests.
Those rules call for a processing officer to be trained on the "particular" machine they are using to take the sample, Haggerty said.
What the word "particular" means, though, is the critical issue, he said.
"Decide what particular means," Haggerty said. "Does it mean the Intoxilyzer 5000, all versions, or does it mean the Intoxilyzer 5000 version one, version two, or version nine?"
Haggerty said he has never raised this issue in a drunken-driving case. But it could become more of an issue after Toole's ruling.
"I think that any lawyer that has a DUI case will need to carefully examine whether the DUI examiner is certified for the particular machine," he said.
The center handles hundreds of drunken-driving cases per year and is open to all Luzerne County police departments during its operating hours of 9 p.m. through 5 a.m., Thursday through Sunday.
Luzerne County Assistant District Attorney C. David Pedri said he argued against Albert's challenge in the Kresge case, claiming the machine Miers used requires no different skills than the machine Miers was certified to use.
"It's operated the same way," he said. "That's my understanding."
Pedri conceded the ruling will likely reduce Kresge's sentence, but Pedri said he will not appeal the ruling because he still secured a conviction.
The prosecutor said he will try to do some legal research on the issue to advise the center of any changes that are needed.
But Haggerty, who is also the mayor of Kingston, said he does not fault the processing center for any errors. He believes any errors that occurred at the center should be attributed to the "complexity of the rules."
Haggerty praised the work of the center, saying it helps police officers and communities save money and time.
David Weiss, a Times Leader staff writer, may be reached at
831-7397
See Article: Times Leader
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