OVI trials sometimes involve testimony from expert witnesses. Those witnesses include pharmacologists who testify about the accuracy of the defendant’s breath test result. A recent decision from an Ohio Court of Appeals demonstrates the importance of assessing the quality of the expert witness report and evaluating the utility of anticipated expert testimony.
Expert Exclusion Affirmed
The case is Columbus v. Swanson. Swanson was involved in collision with a Sheriff’s Office vehicle. Swanson was arrested for OVI, and her breath test result was .118. Swanson’s attorney obtained an expert witness report from a pharmacologist who completed pharmacokinetic calculations to determine Swanson’s breath alcohol concentration at the time of the accident. The expert concluded the breath test result from the machine was falsely elevated by Swanson’s grillz on her teeth and Swanson’s GastroEsophageal Reflux Disease (GERD). The prosecution filed a motion to exclude the expert’s testimony, and the judge granted the motion. Swanson hired a new lawyer, and the new lawyer obtained a new expert. The new expert testified at trial, and Swanson was found guilty. Swanson appealed, claiming the judge improperly excluded the first expert’s testimony.
The Tenth District Court of Appeals affirmed the judge’s decision to exclude the testimony of the first expert. The Court noted the first expert indicated he used a Widmark calculation, then said he did not do a Widmark calculation and instead used an unspecified series of pharmacokinetic calculations. Further, the expert, “did not disclose his data, his assumptions, or his methodology in either his testimony or his report.” Therefore, the trial court did not abuse its discretion in finding the expert’s proposed testimony, “posed a substantial danger of confusion of the issues.”
Evaluating Anticipated Expert Testimony
The trial testimony of the second expert was not especially helpful to the defense. The expert testified the breath-testing machine’s result was erroneously high because alcohol in the breath sample cam from somewhere other than the defendant’s lungs. The expert opined the defendant’s grillz may have trapped alcohol in her mouth which was added to the alcohol from her lungs. However, the defendant testified that she removed the grillz at some point before the breath test. The expert acknowledged doing so would alter his opinion regarding the grillz as a source of trapped alcohol.
The expert also testified that the defendant belching air from her stomach (due to GERD) could falsely inflate the breath test result. However, the defendant’s testimony was she last drank alcohol six hours before the breath test. The expert admitted, with that amount of time passing, burping up stomach air would not account for the high breath test result.
Strategy In Breath Test Cases
Unfortunately, defense counsel withdrew the motion to suppress the breath test result. It appears there was an issue of non-compliance with the required 20-minute observation period before the breath test which may have resulted in the breath test being suppressed. In this case, given the limited utility of the expert witness testimony, it probably would have been a better strategy to pursue suppression of the breath test evidence rather than introduce expert testimony regarding the accuracy of the test.