AKRON — An appeals court has upheld a ruling by Medina Municipal Judge Dale H. Chase to bar prosecutors from using an alcohol breath test given a 49-year-old Cleveland woman accused of drunken driving.
Tina Hogue is charged with operating a vehicle while intoxicated, operating a vehicle with a prohibited blood-alcohol level and making an improper right turn at a stoplight.
Hogue’s attorneys argued the results of the breath test should be thrown out because the Ohio Department of Health never released guidelines to have police officers get permits to handle the Intoxilyzer 8000 alcohol breath machine that led to Hogue’s arrest on Nov. 21, 2011.
In addition, attorneys argued the results of her breath test weren’t stored for five years as required by state law.
The 9th District Court of Appeals by a 2-1 vote Monday upheld Chase’s ruling. Judges Jennifer Hensal and Carla Moore ruled in Hogue’s favor; Judge Donna Carr dissented.
In arguing for the use of the machine, Medina Assistant Prosecutor Matt Lanier said the Intoxilyzer 8000 is the newest model and several other judges including Wadsworth Municipal Judge Stephen McIlvaine — as well as other Ohio appeals courts — have ruled police can use the machines.
“We’re still kind of up in the air about whether the new Intoxylizer 8000 machine is admissible in Judge Chase’s courtroom,” Lanier said. “If he rules against it again, we’ll appeal again.”
Lanier also said a recordkeeping error made the electronic files of Hogue’s test disappear.
Prosecutors had paper files that were slightly different from the digital versions, and the appeals judges decided they were different enough that the records were considered lost.
Lanier said the appellate decision doesn’t change anything about Hogue’s charges.
“We just can’t use the results of the breath test at trial,” he said. “We have cases like this, most often when someone refuses a breath test. So I think we’ll still prosecute using only officer testimony and observation.”
Contact reporter Nick Glunt at (330) 721-4048 or firstname.lastname@example.org.