Right to present a defense denied AGAIN!
Since the Ohio Supreme Court decide State v. Vega (1984), 12 Ohio St.3d 185, those accused of drunk driving (now called OVI) are prohibited from challenging the science and procedures used by the government to test a persons breath alcohol concentration. Despite the fact that this flies in the face of Rights guaranteed by the Constitution of the United States and the Ohio Constitution, our courts continue to endorse this policy.
Most recently, in State v. Sabo, 2006-Ohio-1521, the 10th District Court
of Appeals affirmed a trial court's decision to prohibit the Defendant
from offering an expert witness from testifying about the inadequacies
of Ohio's testing procedure. Namely, Defendant's theory was that
he suffered from GERD (also known as acid reflux) and that the single
breath test procedure utilized in Ohio is not sufficient to ensure against
inflated breath tests resulting from stomach gasses mixing with exhaled
deep-lung air. The testimony that Defendant's expert witness would
have provided to the jury would have stated that two (2) seperate breath
tests should be taken to protect against faulty results. In theory, if
the 2 tests were within 0.02 of one another, presumably, the results would
be worthy of relying upon and would thereby be given the "presumption"
of accuracy as intended by Ohio laws.
Why doesn't Ohio perform dual breath testing just as almost 1/2 of the rest of the States do? Quite simply because the legislative and administrative branches of government in Ohio aren't concerned about good evidence collection. According to Mr. Sabo's expert witness, Dr. Al Staubus, Professor Emeritus of Pharmacology at Ohio State University, the dual testing procedure was adopted in 1986 by the National Safety Counsel's Committee on Alcohol and Other Drugs Subcommittee on Technology, yet Ohio continues to reject the adoption of sound and fundamental scientific protocols that would further protect those accused of drunk driving (OVI).
Many other valid issues were vigorously argued by Mr. Sabo's attorney, Cleve Johnson, however, the 10th District Court of Appeals rejected all arguments.