The most common test is a breath test. Ohio Revised Code 4511.19(D)(1) provides that the analysis of bodily substances must be conducted in accordance with methods approved by the Ohio Director of Health as codified in the Ohio Administrative Code.

Ohio Administrative Code Section 3701-53-04(A)(1) requires that breath testing machines be calibrated once every seven days. The machines are calibrated by pumping a mixture of air and ethyl alcohol from a bottle through the machine. If the results are within .005 of the target value listed on the bottle, then the machine passes the test. If the results are more than .005 off, then the machine is tested again using a different bottle. If it then reads within .005 then the machine passes. But if it reads over .005 again, then the machine must be serviced before it can be used again.

The police are required to keep calibration logs containing all calibration tests for the last three years at the testing site. Ohio Administrative Code Section 3701-53-01(A). One police agency failing to do this recently was the Genoa Township Police Department. Officer Craig Jones, a certified senior operator of the testing device testified in court that when the machine failed the test, the results of those calibrations were not recorded in the logs.

The Fifth District Court of Appeals held that this was a violation of Ohio Administrative Code Section 3701-53-01(A) since the code section required that all calibration results, successful and unsuccessful, must be recorded and kept for three years. The Court of Appeals reversed the trial court’s holding that the results of the test were admissible and remanded the matter back to the trial court for further proceedings.

The case on this is State v. Shokery, 2007 Ohio App. LEXIS 3357.

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In Vega, the defendant attempted to introduce the testimony of an expert witness who would testify as to the general reliability of intoxilyzers as valid, reliable breath testing machines. His expert witness was Dr. Walter J. Frajola. But the prosecutor filed a Motion in Liminie (a motion to exclude this evidence) so that the jury could not hear such testimony from this medical doctor. The prosecutor was concerned that the jury might hear evidence that the breath testing machines used in Ohio were unreliable and come to the wrong conclusion as to the guilt or innocence of the defendant.

The Ohio Supreme Court has ruled that Ohio Revised Code 4511.19 is a strict liability statute. Defiance v. Kretz (1991) Ohio St.3d 1 at 3 citing State v. Cleary (1986), 22 Ohio St.3d 198 at 199. In Ohio Revised Code Section 4511.191(A)(3), the General Assembly defined an alcohol limit at which a person can no longer drive without posing a substantial danger to himself and others. State v. Tanner (1984), 15 Ohio St.3d 1 at 6.


When determining whether a defendant committed the “per se” offense set forth in Ohio Revised Code Section 4511.191(A)(3), the trier of fact (that is the jury or, if no jury was requested, the judge) is not required to find that the defendant operated a motor vehicle while under the influence of alcohol or drugs; rather, the trier of fact must find only that the defendant’s chemical test reading was at the proscribed level and that the defendant operated a motor vehicle within the state. Kretz, supra, citing Newark v. Lucas (1988), 40 Ohio St.3d 100 at 103. Because of this, the accuracy of the test results is a critical issue in determining a defendant’s guilt or innocence. Kretz, supra.

Since the accuracy of the results of such tests are critical, one would think that a defendant should be allowed to bring into question the accuracy of the testing equipment. But like all junk science, the rejoinder argument is: “How dare you question me!?”

The Ohio Supreme Court held that the General Assembly has determined that results of breath alcohol tests are reliable evidence when administered in accordance with ODH regulations. State v. Vega (1984), 12 Ohio App.3d 185 at 188.

The Court reasoned that the defendant’s position that he has a constitutional right to question the reliability of the evidence presented against him “simply fails to afford the legislative determination that intoxilyzer tests are proper detective devices the respect it deserves.” Vega at 188. The Court went on to reason that the Ohio General Assembly, by enacting statutes such as R.C. 4511.19 has legislatively resolved the questions of the reliability and relevancy of intoxilyzer tests. The Ohio Supreme Court further reasoned that the judiciary must recognize the necessary legislative determination that breath tests, properly conducted, are reliable irrespective that not all experts wholly agree and that the common law foundational evidence has, for admissibility, been replaced by statute and rule; and that the legislative delegation was to the Director of Health, not the court, the discretionary authority for adoption of appropriate tests and procedures, including breath test devices. Vega at 188-189.

So there you have it. If the legislature says that the testing device is reliable (or that water now runs up hill), your constitutional right to confront the evidence and witnesses against you go out the window because to find otherwise would not give a bunch of politicians the respect they deserve. Don’t get me wrong, I’m all for giving the Ohio General Assembly the respect it deserves. But the open question is how much respect they deserve.

Accordingly, in Ohio, a person accused of DUI/OVI may not make a general attack upon the reliability and validity of the breath testing instrument.

But take heart, the decision of the Ohio Supreme Court in Vega was not unanimous. Three justices, Brown, Sweeney and Celebreeze saw that the emperor had no clothes and dissented. Here are some excerpts of their reasoning which are a lot more convincing than my snide, sacrastic asides above:

“The admissibility of relevant evidence is a judicial function. The Ohio Constitution has delegated the responsibility for the fashioning of evidentiary rules solely to the Ohio Supreme Court. Section 5(B), Article IV of the Constitution provides in part:

“(2) The supreme court shall prescribe rules governing practice and procedure in all courts of the state * * *. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” Vega dissent at 190.

“The decision reached by the court today sanctions an unconstitutional exclusion of evidence from a criminal trial. Under the Constitutions of the state of Ohio and the United States all persons accused of crime have the right to present their own evidence including expert testimony. As I do not believe R.C. 4511.19 stands for the proposition that no expert testimony may be introduced to rebut the statutory presumption created, I dissent. There is no prohibition against the presentation of expert medical testimony by the accused to show the nonexistence of any nexus between the test results and the physical condition of the accused.” Vega dissent at 190.

“The cases relied upon by the majority relate only to the use and admissibility of machine test results by the state. None of the cases holds a defendant may not make a general attack upon the machine used.” Vega dissent at 191.

“The issue of relevancy or admissibility of evidence cannot be usurped by the legislature nor delegated by the legislature to the Director of Health. The constitutional principle of separation of powers among the branches of government demands this conclusion. It is the function of the judiciary to rule on the admissibility of relevant evidence. The exclusion of relevant expert testimony solely because of a legislative or administrative presumption is unconstitutional.” Vega dissent at 191.

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