As anyone who follows this blog regularly knows, I have a deep and abiding hatred for the 1984 Ohio Supreme Court decision in State vs. Vega (1984), 12 Ohio St.3d 185, 465 N.E.2d 1303. Vega has come to stand for the proposition that an attorney may challenge the particulars of his client’s evidential breath test, but the standards and practices of breath testing as determined by the Ohio Department of Health are sacrosanct and cannot be challenged in court. In this commentator’s opinion, the Vega ruling allows junk science to become conclusive evidence (example: Ohio’s adherence to a one-breath-test protocol despite a consensus scientific opinion that this is wrong) and runs afoul of the 6th Amendment guarantee of a fair trial and the right to present a defense.
Imagine if you are on trial for capital murder. The best evidence against you is DNA and fingerprint identification. Using the Vega analysis, you would not be allowed to challenge the science adopted by Ohio for determining your guilt, but only the method of collection. This is patently unfair in the murder context, but somehow acceptable in a DUI context.
A recent case out of Ohio’s 12th Appellate District, State v. Henricksson (2011), 2011-Ohio-1632, 12th District Court of Appeals, upholds the ruling from Vega, holding “It should be noted, however, that appellant could have challenged the accuracy of her specific breathalyzer test result by introducing evidence showing “something went wrong with [the] test and consequently, the result was at variance with what the approved testing procedure should have produced.” Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, ¶24, 27; see, also, State v. Tanner (1984), 15 Ohio St.3d 1, 6 (“[a] 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”).”
It is my hope that even the most vehement advocate of tough DUI laws would allow an open debate on the scientific methodology of convicting a person in court. If you are willing to fight to keep truth out of the courtroom, then you have drifted so far from the principles of fairness as to become blind to what our system of justice should be. I call on MADD, the Century Council and all other advocates for tough DUI laws to join me in having a fair fight over the science and protecting our fragile and vulnerable system of justice.
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