Challenging Admissibility and Weight of BAC and SFST Results
Just because the results of a breath or blood alcohol concentration test and/or the results of Standardized Field Sobriety Tests (SFST’s) are determined to be in substantial compliance under their respective statutory exclusionary rules does not mean that the admissibility of such results cannot be challenged on other grounds, nor does it preclude an attack on the weight and credibility of that evidence if it is admitted.
Under Evid. R. 104(A), preliminary questions concerning the admissibility of evidence shall be determined by the court. However, Evid. R. 104(D) states that the rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
R.C. 4511.19(D)(1)(b) is a statutory exclusionary rule. It provides that when a breath or blood alcohol concentration test is administered after an OVI arrest at the request of the police or pursuant to a search warrant the court may admit evidence of the test result: If the substance was withdrawn within three hours of the alleged violation and analyzed in accordance with methods approved by the DOH by an individual possessing a valid permit issued by the DOH. The methods referred to are contained in OAC 3701-53-01 to 10, and the threshold for admissibility under the statute is “substantial compliance.” See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372.
The Supreme Court of Ohio has made it clear that even if breath and blood alcohol concentration test results may be admitted due to substantial compliance with the DOH regulations the admissibility of the results can be challenged on evidentiary grounds. Further, as noted above, if the evidence is admitted its weight and credibility can be attacked at trial.
In State v. French, 72 Ohio St.3d, 446, 1995-Ohio-32 our Supreme Court held that the failure to move to suppress alcohol test results on the basis of lack of substantial compliance with DOH regulations renders a defendant unable to object to the admissibility of the results at trial on that ground. The Court went on to state that this does not mean that the defendant may not challenge the results at trial under the Rules of Evidence. Evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of the results may still be raised.
In State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, the Supreme Court followed and approved French. In essence, it noted that a substantial compliance challenge must be raised by a motion to suppress. Otherwise, the state can get the alcohol test results admitted at trial without laying a foundation as to compliance with the regulations. The Court added that, as stated in French, evidentiary objections challenging the admissibility, competency, relevancy, authenticity and credibility of the test results may still be raised at trial. Finally, the Court stated that a defendant may always attack the weight and credibility of any properly admitted evidence.
In Cincinnati v. Ilg, 141 Ohio St.3d 22, 2014-Ohio-4258, the Supreme Court of Ohio stated that approval by the ODH of a particular model of a breath testing machine bars an accused from presenting expert testimony attacking the general scientific reliability of that type of machine (a Daubert challenge). The Court also stated that its ruling does not preclude a defendant from challenging the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific test results produced by a machine in a pending case. Further, the Court said that the approval of a particular model of a machine does not prevent an accused from challenging his specific test results or whether the specific machine that produced the results operated properly at the time of the test.
In Ilg, the Court cited with approval its previous decisions in State v. Tanner, 15 Ohio St.3d 1 (1984) and Columbus v. Taylor, 39 Ohio St. 3d 162 (1988). In Tanner, the Court explained that the per se (at or over the limit) statute does not impose a conclusive presumption of guilt because the defendant can challenge the accuracy of his specific test results and a jury can consider those results, and all other relevant evidence, in ascertaining whether the state has shown beyond a reasonable doubt that the defendant has violated the statute. In Taylor, the Court noted that it is well established that a defendant may challenge the accuracy of his specific results. In that case, it was appropriate for the trial court to allow the defendant’s expert to testify that breath alcohol concentration test results can be inaccurate due to burping that contaminates a breath sample.
Rounding out the issue, State v. Schuck, 22 Ohio St. 3d 296 (1986) illustrates that even if a relevant instrument check is within plus or minus .005 of the target value of the instrument check solution (substantial compliance with a specific ODH regulation) a defendant can challenge the accuracy of his test result on the basis that the actual accuracy of a given machine is determined by the results of relevant instrument checks. Applying the law of Schuck to a hypothetical, if a defendant’s test result was .08 and the instrument check before or after his test produced a result of .002 above its target value, a jury could find that a per se charge was not proven beyond a reasonable doubt.
Relative to SFST evidence, R.C. 4511.19(D)(4)(b) is another statutory exclusionary rule applicable to OVI cases. It precludes the admissibility of evidence of the purported results of an SFST unless the prosecution shows by clear and convincing evidence that the test was administered in substantial compliance with the testing standards (NHTSA) that were in effect when the test was administered. If such a showing is made the officer who administered the SFST(s) may testify concerning the results and the prosecution may introduce evidence of the results. However, the statute makes clear that such evidence must be otherwise admissible under the Rules of Evidence, and that if admitted the trier of fact shall give it whatever weight it deems appropriate.
In State v Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, the Supreme Court of Ohio recognized that the above statute rendered the strict compliance requirement announced in State v. Homan, 89 Ohio St.3d 421 (2000) a nullity. The Court in Homan only addressed under what circumstances SFST results could be considered in determining probable cause for arrest. Schmitt made clear that compliance (substantial, not strict) was a predicate to the admissibility of the results at trial.
In State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, the Supreme Court of Ohio held that R.C. 4511.19(D)(4)(b) is constitutional. The Court also stated that the General Assembly concluded that failure to strictly comply with test procedures affects the evidentiary value of field sobriety tests but that substantial compliance will not result in the tests’ exclusion. Finally, the Court added “…The potential compromise of reliability caused by lack of strict compliance can be shown by the defense on cross-examination.”
In sum, just because a court decides that BAC results or SFST results meet the threshold for admissibility based on a showing of substantial compliance under the respective statutory exclusionary rules does not preclude a defendant from moving to exclude the evidence under the Rules of Evidence or attacking its weight and credibility if it is admitted at trial.
MuniCourtNotes.net © 2020