Columbus OVI/DUI Attorney BlogHistorically, if a driver refused to give a sample of blood, breath or urine, the driver’s license would immediately be suspended for refusing, but there would be no alcohol test to use as evidence against the driver. Things changed in 2009, when the Ohio legislature passed a law saying, if a person with prior O.V.I. convictions refuses to submit to a chemical test, “the law enforcement officer who made the request may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.” R.C. 4511.191(A)(5).
Articles Posted in DUI/OVI blood/breath/urine tests
Hope Of Challenging Critical Evidence In Ohio DUI/OVI Cases
The last post for this blog discussed the defendant’s right to confront and cross examine the people responsible for the chemical test that determines a defendant’s blood alcohol level. On one hand, the United States Supreme Court strengthened this confrontation right in Melendez-Diaz. On the other hand, an Ohio court of appeals in State v. Collins later held it is not a violation of the defendant’s confrontation rights to admit records at the motion hearing regarding maintenance of the breath-testing machine without the testimony of the person that maintained it. This post addresses a case decided after the Collins decision.
No Right To Challenge The Most Critical Evidence In Ohio DUI/OVI Cases?
Imagine a case in which the defendant is not permitted to challenge the most critical evidence. For example, imagine a products liability case in which the plaintiff says, “we know the product was defective because we did scientific testing which showed it was defective.” The defendant would challenge the scientific testing through cross examination to show why the plaintiff’s test was unreliable. In OVI cases in Ohio, the prosecution often introduces a scientific chemical test to prove the defendant’s concentration of blood, breath, or urine. The defense, however, is prohibited from challenging the general reliability of those chemical tests due to State v. Vega (see blog entry May 3, 2010).
My First Case With The Ohio Intoxilyzer 8000
In a previous post, I discussed the Intoxilyzer 8000. The Ohio Department of Health made a controversial purchase of 7000 of these breath-testing machines, and a few are being used in central Ohio D.U.I./O.V.I. cases. In the previous post, I said I would give developments from my first 8000 case.
The Intoxilyzer 8000 In Central Ohio
Breath-testing machines have been used for O.V.I. (D.U.I.) in Ohio for decades. Until recently, the breath-testing instruments approved by the Ohio Department of Health (ODH) were the BAC Datamaster and the Intoxilyzer 5000. In 2009, the Ohio Department of Health approved the use of the Intoxilyzer 8000. In addition, the ODH purchased 700 Intoxilyzer 8000s, at a cost of $6.4 million, to be used throughout the state.
When Does “Expired” Not Really Mean “Expired” In Ohio DUI/OVI Cases?
A police officer is only authorized to administer breath tests in O.V.I. (D.U.I.) cases if the officer has a valid operator’s permit issued by the Ohio Department of Health. To obtain an operator permit, an officer must complete a basic operator training course. Operator permits expire one year after the permit’s issue date, and an officer can apply to renew a permit up to six months before it expires. To renew a permit, an officer must complete an in-service renewal course. These regulations are contained in chapter 3701-53 of the Ohio Administrative Code. A breath test is only admissible if the operator had a valid permit.
For Ohio DUI/OVI, Vega Was Not Just An Unreliable Car
When most people think of “Vega”, they think about the 1970s Chevrolet vehicle, named as one of the “10 most Embarrassing Award Winners in Automotive History” by CarAndDriver.com. When Ohio DUI attorneys think of Vega, we think about the Ohio Supreme Court decision regarding our ability to challenge the reliability of breath testing machines.
You May Refuse To Consent To Ohio DUI/OVI Alcohol Tests…Sometimes
Imagine that the police show up at your door and want to search your house. If you don’t consent, the police can’t search without a warrant or an applicable exception to the warrant requirement. Refusing to consent to a search is not ordinarily a criminal offense. In a recent case from the Ohio Supreme Court, however, the Court concluded that it can be a criminal offense for some people to refuse consent in some circumstances.