I have posted on this case before I believe. The case involves the same device used in South Carolina- the Datamaster.
The rule is old-you cannot cherry pick evidence.
South Carolina has a law requiring records maintenance:
56-5-2954. Breath testing sites; records of problems with devices.
ARTICLE 23. RECKLESS HOMICIDE; RECKLESS DRIVING; DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR, DRUGS OR NARCOTICS
The State Law Enforcement Division and each law enforcement agency with a breath testing site is required to maintain a detailed record of malfunctions, repairs, complaints, or other problems regarding breath testing devices at each site. The records required by this section are subject to compulsory process issued by any court of competent jurisdiction in this State and are public records under the Freedom of Information Act.
Here is the story.
Drunken-driving case overturned by appeals court
Man may withdraw plea because of breath-test uncertainty
BY RUSS ZIMMER • ADVOCATE REPORTER • DECEMBER 27, 2008
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NEWARK -- A controversial drunken-driving case is back in Licking County Municipal Court after a successful appeal, according to an appellate opinion, a move that might pave the way for other challenges to local OVI convictions.
The Fifth District Court of Appeals decided 3-0 that a New Albany man should have been allowed to withdraw his 2006 no-contest plea after information surfaced earlier this year that cast doubt on the validity of a breath test, states the opinion that was released Tuesday.
In April, local attorney Rob Calesaric filed a motion to reverse his client's plea after officials learned the Licking County Sheriff's Office had not been calibrating its BAC Datamaster properly, putting as many as 100 tests in doubt, Calesaric said. The Newark Law Director's Office, which is handling the prosecution, could not be reached for comment Friday.
Municipal Court Judge Michael Higgins rejected the motion the next month, writing in a judgment entry that the defense had failed to prove a manifest injustice -- the burden borne by defendants who ask to change their pleas after sentencing.
The Fifth District disagreed, stating in its opinion the test results should have been thrown out at the suppression hearing, which likely would have affected the defendant's decision to change his plea.
REGULATIONS NOT FOLLOWED
The deputy had testified during an October 2006 suppression hearing for the case at hand that he had followed all state regulations.
However, Calesaric filed a transcript from a November 2007 suppression hearing in a separate OVI case where the same deputy gives testimony about his procedure that shows it to be in direct opposition to some sections of the law.
A sheriff's office internal investigation in April found the deputy, who has been removed from that duty, had not followed state regulations, but had not done so maliciously, according to investigation materials.
Specifically, he had thrown away records of instrument checks that fell outside the acceptable range.
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.
The case will return to Higgins' docket, but Calesaric said he is uncertain what will happen next.
He said the case should be dismissed, but he admits there is some "wiggle room" in the higher court's ruling.
"What I would like to do is sit down with the law director's office and the court and fashion a game plan for where we need to go from here," he said.
MORE CHALLENGES POSSIBLE
The appellate court's decision could have far-reaching effects if those already convicted make the effort, Calesaric said.
"Anyone that was convicted of a breath-test case on the Licking County Sheriff's Office machine in that time frame (for two years before December 2007) needs to re-evaluate the validity of their case," he said.
People facing a felony charge for their fourth OVI in six years might be able to challenge a previous conviction if one was based in part on a BAC Datamaster reading from the sheriff's office, he said.
Other scenarios, with less at stake, exist where people could fight previous penalties, but Calesaric said it was more likely those who already have fulfilled the terms of their sentence will not push to have it overturned.
The defendant, who will not be named by The Advocate because the charge is a misdemeanor, has not served any jail time or completed a mandatory driver's intervention class, Calesaric said.
Russ Zimmer can be reached at (740) 328-8548 or razimmer@newarkadvocate.com.
