Friday, June 03, 2011

DUI Appeal - Sobriety Tests Inadmissible in Per Se Case Says Ohio Court

The below case was provided to DAD thanks to the watchful eyes (and summary) of NCDD member Jeff Meadows. He has provided the summary below:

State v. Henricksson
12th District Court of Appeals

Document QUICK LINK: View Court Published Official Document

Issues: HGN, video, admissibility, 4511.19(A)(1)(h)

Case Summary Overview:
D was stopped for weaving within her lane and changing lanes without signaling. Ultimately she was arrested for OVI and charged with A1a and A1h. Her MTS was denied and the case was tried to the court - whereupon the prosecutor dismissed the A1a and went forward with ONLY the A1h charge.

During trial, the Defense tried to offer evidence of the HGN and cruiser-cam video, but the State objected and the court sustained the objection. Defendant was convicted and sentenced to the high tier penalties. This appeal followed raising many issues but of particular importance is the issue of admissibility of the HGN and video on a PER SE trial.

HELD: The 12th District affirmed holding: "..the state was only required to prove two elements; namely, that appellant was operating a vehicle within the state, and that, at the time of the offense, she had a concentration of .17 of one gram or more by weight of alcohol per 210 liters of her breath." "See State v. Jobe (July 13, 1998), Clermont App. No. CA97-10-083, at 4-5; State v.
Knapke, Franklin App. No. 08AP-933, 2009-Ohio-2989, ¶8. As a result, because these two facts are the only facts of consequence in this case, the HGN test results, as well as the
video taken from Trooper Bierer''s in-dash camera, are not relevant in prosecuting a violation of R.C. 4811.19(A)(1)(h), and therefore, not admissible.1 See State v. Boyd (1985), 18 Ohio St.3d 30, 31; see, also, State v. Obhof, Franklin App. No. 07AP-324, 2007-Ohio-5661, ¶16; Evid.R. 402."

They also include an interesting footnote that states: "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")."

This commentator finds it interesting that the footnote references the "legislatively determined test procedures" since there are NO LEGISLATIVELY DETERMINED TEST PROCEDURES!!!

This commentator also believes this case can be used to open, or at least unlock the VEGA door since the OSC in VEGA stated: "...Rebuttable evidence may include non-technical evidence of sobriety, such as a videotape..." "...and the completion of field sobriety tests." 12 Ohio St.3d 185, 189.

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