State v. Dehner

I respectfully dissent, because the trial court used the wrong standard for the admission of evidence in DUI cases. For example, the trial court rejected appellant's proffered evidence in part because "* * * the report states that the Defendant was observed by Mr. Dehus for twenty minutes after the consumption of the drink but does not say whether any foreign object was placed in her mouth as all the breath testing instrument log entry forms require."

However, paragraph three of the syllabus in State v. Brown (1975), 49 Ohio App.2d 104, 3 O.O.3d 161, 359 N.E.2d 706, states:

"A failure to observe a defendant continuously for twenty minutes prior to the administration of a breathalyzer test goes to the weight to be accorded the results of the test rather than its admissibility, where the defendant offers no evidence tending to establish that he ingested some foreign substance during the period in which he was unobserved."

I began with this example only because it shows the trial court assessed the weight of this evidence and not its relevance, but I have another, more substantial objection to the trial court's refusal to permit this evidence. If we are to rely on these test results for convictions in per se cases, then we must be particularly careful to be sure the tests are accurate. The primary duty of ensuring the accuracy of the tests falls by statute on the Department of Health, not on the courts. The legislature has authorized testing according to standards established by the Department of Health, and if a test is administered in accordance with those standards, it is relevant and admissible. Cincinnati v. Sand (1975), 43 Ohio St.2d 79, 72 O.O.2d 44, 330 N.E.2d 908; State v. Steele (1977), 52 Ohio St.2d 187, 6 O.O.3d 418, 370 N.E.2d 740.

The use of these tests is constitutional. State v. Tanner (1984), 15 Ohio St.3d 1, 15 OBR 1, 472 N.E.2d 689. A defendant may not challenge the validity of breath tests in general or the methods and procedures adopted by the Department of Health.State v. Brockway (1981), 2 Ohio App.3d 227, 2 OBR 247,441 N.E.2d 602; Columbus v. Day (1985), 24 Ohio App.3d 173, 24 OBR 263, 493 N.E.2d 1002.

However, in Tanner, supra, 15 Ohio St.3d at 6, 15 OBR at 5,472 N.E.2d at 693, the Supreme Court held:

"The defendant may still challenge the accuracy of his specific test results, although he may not challenge the general accuracy of the legislatively determined test procedure as a valid scientific means of determining blood alcohol levels."

The proffered evidence made one significant point, that the test which was administered to Dehner was not accurate. This kind of evidence is always relevant and admissible under the holding in State v. Boyd (1985), 18 Ohio St.3d 30, 18 OBR 68,479 N.E.2d 850. The proffered evidence does not challenge Ohio's system of testing, but only the result in Dehner's test.

In this case, the defense indicated its intention to call Dehus as an expert witness and the state responded with a motionin limine. The issue was presented to the court on a stipulation on matters of relevance, but the court decided the issue on matters of weight, as noted at the beginning of this dissent. Essentially, the court raised all the questions which would have to be asked to establish a foundation for this expert's opinion, and then ruled that they could not be asked.

I am particularly distressed by the trial court's refusal to grant this expert the opportunity to lay a foundation for his testimony and then to characterize the expert's work as "sloppy science." For example, the court said, "Mr. Dehus then reports that an analysis of defendant's saliva, not her breath, revealed a `significant' level of ethyl alcohol" and then adds "* * * why the failure to define `significant'?" The meaning of the word "significant" is obvious — it means significant in terms of what is being looked for. Dehus used gas chromatography, a far more accurate method than a simple intoxilyzer machine. Since gas chromatography would discover trace amounts not measurable by an intoxilyzer, he had to qualify his findings by using the word "significant" to mean significant in terms of what the intoxilyzer can measure. Even though the court's characterization is insulting and unfair, implicit in the comment is the standard the court used — "sloppy science" is a judgment on the weight and credibility, not on its relevance.

Finally, I would make one more point on the nature of the challenge to the results of breath testing. Where a defendant offers testimony about the inaccuracy of any particular test, this helps the statutory system. It makes it better, more accurate, more just. For example, several years ago, radio frequency interference ("RFI") challenges came into vogue, and many DUI defendants challenged their tests on the grounds that radio waves can affect the accuracy of some tests. These challenges did not harm the system, but made it better. When it appeared that there was some truth to the RFI defense, the Department of Health amended Ohio Adm. Code 3701-53-02-(C) to require RFI surveys and the placement of the machines to avoid this problem.

I would not venture a guess as to whether alcohol was trapped in Dehner's dental plate so as to make her breath test inaccurate, but I also would not close my mind to expert evidence which might establish that possibility. I most definitely would not hold that evidence which make the existence of that fact more probable is not relevant.

Thus I dissent.