Ohio Court Rules on Hospital's Certification

Aggravating the DUI Menace

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.

Toledo Blade

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 ­ 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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