Drunk driving is a relatively new crime, not developed until the 20th century as hardly anyone could afford a car let alone own one and get on the road under the influence of intoxicating spirits. Until 1954, the only way to test a driver’s blood-alcohol content (BAC) level was by blood. Unsurprisingly, this method was neither convenient nor safe, and breath testing soon became the most prominent method for ascertaining BAC. When several states began adopting “per se” statutes based solely on BAC levels, BAC testing devices became even more popular.
Since then, BAC testing devices themselves have evolved, and criminal defendants and their counsel have found various ways to challenge the accuracy and fairness of admitting the results of such tests into evidence at trial. The most recent major issues in Ohio arose surrounding the Intoxilyzer 8000. After zealous criminal defense lawyers in Delaware discovered various problems with the device and dug into the science surrounding its workings to show its general unreliability, the State fought back and tried to keep such arguments out of the courtroom. In State v. Yanchar (2013-Ohio-1296), the 11th District Court of Appeals held that defendants may only bring a “specific” reliability attack. A defendant cannot generally argue the instrument itself is unreliable, but he can attack the reliability of the specific testing procedure and the qualifications of the operator, the results of his specific test, and also bring in an expert to attack the science of the workings of the instrument. Thus, while the Intoxilyzer 8000 has a slew of technical shortcomings, defense counsel, through vigorous research and creative trial strategy, can now successful point out such issues to keep most of these test results out of trial.
Now, we face a new challenge. House Bill 388, more commonly referred to as Annie’s Law, will go into effect April 6, 2017. This law is extremely ominous as it will provide first-time offenders the option to have “interlock devices” placed in their cars to avoid the license suspension and limited driving privileges typically associated with an OVI arrest. An ignition interlock device is installed in the defendant’s car and requires the defendant to provide a breath sample under a pre-set limit before driving. They pose a slew of issues and privacy concerns that most will not be aware of at the time they accept such alternative to license suspension. Like the struggle to attack the Intoxilyzer 8000, defense counsel will need to go back to the drawing board and uncover ways to attack the reliability and constitutionality of such devices. Stay tuned for a series of updates as Annie’s law unfolds in Ohio.