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State v. Brockway8/26/1981
STEPHENSON, J.
This is an appeal by the state from a judgment entered by the Athens County Municipal Court granting a motion to suppress evidence of the results of intoxilyzer alcohol breath tests in the prosecution of certain cases of operating a motor vehicle while under the influence of alcohol. The following errors are assigned by appellant with essentiallssimilar assignments of error by the Ohio State Highway Patrol in an amicus curiae brief:
"1. The decision of the Athens County Municipal Court finding that test results of the intoxilyzer Model 4011 are not admissible as evidence in a court of law because the instrument is inherently unreliable is in error as an unlawful encroachment of the judiciary upon a legislative function since Ohio Revised Code Section 4511.19 establishes the blood alcohol level for a rebuttable presumption of intoxication authorizing a breath test approved by the Department of Health to determine this blood alcohol level and the Department of Health by Administrative Rule 3701-53-02(B)(4) approves the use of the intoxilyzer.
"2. The decision of the Athens County Municipal Court finding that test results of the intoxilyzer Model 4011 are not admissible as evidence in a court of law because the instrument employs methods or techniques not generally accepted by the relevant scientific community and because the process incorporates several inferences which cannot be proven by substantial assurance to be more likely valid than invalid is in error because it is against the manifest weight of the evidence." (Numbering by court.)
Appellees filed a dual-pronged pretrial motion in the court below seeking, in effect, (1) to exclude in limine any intoxilyzer test results and attendant presumptions for the reason such tests are not a "chemical analysis" of a person's breath as required by R.C. 4511.19 for admissibility and (2) to suppress the test results for the reason the intoxilyzer process "is not a sufficiently reliable scientific test generally accepted by the scientific community."
An evidentiary hearing was thereafter conducted in which the appellees presented an expert witness, one Walter J. Frajola, Ph.D, an expert in bio-chemistry, and the state presented Leonard J. Porter, Chief of the Division of Bio-chemistry and Toxicology for the Ohio Department of Health and Chief of the Alcohol Testing, Approval and Permit Program of the department.
In summary, Dr. Frajola testified the intoxilyzer process was unreliable for the reason that other carbon-hydrogen compounds are sensitive to light with a wavelength of 3.39 microns. Acetone is a carbon-hydrogen compound which primarily absorbs infrared light at different wave lengths. However, acetone also has a secondary absorption point at 3.39 microns. Dr. Frajola testified that acetone is a substance commonly found in the human body, especially in people who are diabetic or who are dieting. According to Dr. Frajola, the presence of acetone in the body could be detected by the intoxilyzer and cause the intoxilyzer to give a false reading.
Dr. Frajola further testified that the constant 2,100 used to convert the breath-alcohol percentage into a blood-alcohol percentage may lead to inaccurate and misleading results. Dr. Frajola criticized the use of the constant ratio for the reason that the proportion to whicsbreath-alcohol percent relates to blood-alcohol percentage varies from person to person according to several factors including temperature and the person's hematocrit count. According to Dr. Frajola, studies have indicated that a person's blood-breath alcohol ratio varies from a low of 1,900 to a high of 2,400.
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