Imagine a case in which the defendant is not permitted to challenge the most critical evidence. For example, imagine a products liability case in which the plaintiff says, “we know the product was defective because we did scientific testing which showed it was defective.” The defendant would challenge the scientific testing through cross examination to show why the plaintiff’s test was unreliable. In OVI cases in Ohio, the prosecution often introduces a scientific chemical test to prove the defendant’s concentration of blood, breath, or urine. The defense, however, is prohibited from challenging the general reliability of those chemical tests due to State v. Vega (see blog entry May 3, 2010).
As the defense cannot challenge the chemical test at trial, the defense challenges the admissibility of the test by filing a motion to suppress the chemical test and having a hearing on that motion. At the hearing, the prosecution must demonstrate that the machine used for the test was maintained in compliance with regulations issued by the Ohio Department of Health.
One would expect that, at the motion hearing, the defense would have an opportunity to cross-examine the person that conducted the test and maintained the machine. In fact, the United States Supreme Court declared a similar right to confront witnesses in Melendez-Diaz v. Massachusetts. In that case, the prosecution was trying to prove the defendant possessed cocaine and introduced a laboratory report concluding the substance possessed by the defendant was in fact cocaine. The Court held that admitting the laboratory report without having the testimony of the person who conducted the test violated the defendant’s right to confront witnesses against him.
Even after the Melendez-Diaz decision, however, some Ohio courts continue to admit evidence regarding the maintenance of chemical-testing machines without the testimony of the person responsible for it. In State v. Collins, decided in October of 2010, the court of appeals held that it is not a violation of the defendant’s confrontation rights to admit records at the motion hearing regarding maintenance of the breath-testing machine without the testimony of the person that maintained it.
Under Ohio law, the motion hearing is the time to challenge the admissibility of the breath/blood/urine test, and some courts (like that in Collins) now say the defense has no right to cross examine the person that maintains the testing machine to make its results reliable. Hopefully, this issue will soon be addressed by the Ohio Supreme Court and decided differently.