Columbus OVI/DUI Attorney Blog
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.
In the case of State v. Syx, the prosecution sought to introduce evidence that the defendant’s blood test showed an alcohol concentration of 0.11. The defendant filed a motion to suppress the results of the blood test. At the hearing on that motion, the prosecution did not call as witnesses the nurse that drew the blood sample or the toxicologist who performed the blood test. Instead, the prosecution called the chief toxicologist to testify about the blood test. The chief toxicologist was not present for the blood draw and was not involved in testing the blood. Nevertheless, the trial court concluded that the blood test was admissible.
The court of appeals concluded otherwise. The Court said the defendant has a constitutional right to cross-examine the nurse and the toxicologist. Because the prosecution did not present the testimony of those witnesses, the prosecution failed to prove that the blood test substantially complied with Ohio regulations regarding blood tests. As a result, the court of appeals reversed the defendant’s conviction.
The court of appeals in Syx recognized that the motion to suppress hearing is the only time the defendant can challenge the admissibility of the breath/blood/urine test, so the defendant must be permitted to cross examine, at the motion hearing, the individuals responsible for the test. This decision gives hope that there is, in fact, a right to challenge the most critical evidence in O.V.I. cases.