Saturday, April 19, 2008
By Russ Zimmer
NEWARK – A procedural error in the maintenance of a Licking County Sheriff's Office breath test machine could affect drunken driving convictions in the county in the past two years, according to court documents.
Defense attorney Rob Calesaric filed a motion in Licking County Municipal Court last week to withdraw his client's no-contest plea to a September 2006 operating a vehicle while intoxicated violation.
That motion is accompanied by a transcript from a 2007 misdemeanor case in which a Licking County Sheriff's Officer deputy who calibrates the agency's sole Blood Alcohol Content DataMaster machine testified he does not maintain records in accordance with standards.
"There are certain things that must be done, and he wasn't doing them properly," Calesaric said. "You can't fix it. There is no rule or regulation that allows the correction of this error."
According to the Ohio Administrative Code, the BAC DataMaster must be checked for accuracy at least every seven days. This calibration check on the breath test machine is conducted by using an ethyl alcohol solution with a known value – the equivalent of the 0.08 blood alcohol content, the legal limit in Ohio.
For the machine to pass the weekly test, it must register a reading within 0.005 grams of the listed value on the ethyl alcohol solution. If it falls outside that range, a new bottle of solution should be opened and tested, and if a failing result is again registered, the machine must be serviced.
All calibration check records - pass or fail – must be retained for at least three years, the law states.
During a December suppression hearing, a deputy certified by the Ohio Department of Health told Judge Michael Higgins he discarded test results that fell outside the acceptable limits during approximately the past two years.
Higgins ruled a week later those test results could not be used at trial.
"It would appear that the Licking County Sheriff's Department is not following proper protocol with respect to the calibration of the BAC DataMaster," Higgins wrote in his judgment entry.
Sheriff Randy Thorp said the office has no reason to doubt the machine, but whether those results are valid evidence would be up to a judge to decide.
"We feel confident that all of our tests are accurate and valid," he said. "There may have been some procedural issues that the deputy who was in charge of the machine didn't follow."
He said the office is in the early stages of investigating the matter and commenting on specific discipline of the deputy would be premature.
"Typically, if someone has made some type of error, we generally administer some type of discipline or counseling so that the situation does not occur again," he said.
Other deputies will conduct the weekly checks until a thorough examination can be completed, he said.
Thorp said the error in record keeping does not indicate in any fashion the machine is broken.
The deputy appears to have followed procedure appropriately except for the maintaining of the records, he said.
Calesaric argues that without a complete catalogue of records no one can confirm the machine is returning accurate readings.
"You can't allege that it is working when they don't have the records to prove it," he said. "You can't see what was going wrong with the machine if you don't have the records that say it was not accurate."
Licking County Prosecutor Ken Oswalt said his office already is on alert for possible effects of the revelation on cases handled by the county.
In all pending cases where results from the Sheriff's Office breath test machine are being used as evidence, Oswalt said the defense will be notified of the issue.
The state has a responsibility to share evidence favorable to the defense before a trial, but after a case is closed that standard changes, he said.
"Afterwards, the legal obligation isn't near the same; you're probably looking at a moral obligation," he said.
For convictions, Oswalt said his office would, with assistance from the law enforcement agencies' records, examine each on a case-by-case and err on the side of the defense when deciding whether the issue is material to those cases.
Drunken driving convictions might have occurred in which the defendant has served his sentence or video from a cruiser camera or other evidence indicates guilt, he said. The 2007 case in which the sheriff's office test results were suppressed still resulted in a guilty plea.
The questions raised certainly will affect the municipal court to a much greater extent because Licking County Common Pleas Court generally only handles felony operating a vehicle while intoxicated charges.
The Newark Law Director's Office has declined to comment pending a judgment on the matter but filed a response Thursday to Calesaric's motion to withdraw.
In that response, Assistant Law Director Jon Diernbach sets forth multiple arguments – including jurisdictional conflicts with the higher courts, whether or not the deputy's actions influenced this case and counsel already had an opportunity to raise this concern – to rule against the motion.
Calesaric said he wants the city to expend less effort fighting his client's case and more energy informing people they might have been subject to inadmissible evidence.
"It's the actions of people afterwards," he said of the response of officials after the deputy testified. "Why haven't people taken steps to correct the situation?"