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11th District rejects Intoxilyzer 8000 challenge in vehicular homicide case
TRACEY BLAIR
Legal News Reporter
Published: October 21, 2014
Trial counsel was not ineffective for failing to challenge results from the Intoxilyzer 8000 in a fatal drunk driving case, the 11th District Court of Appeals recently ruled.
Karin L. Love pled no contest to aggravated vehicular homicide and two counts of OVI in May 2013. She was sentenced to six years in prison by an Ashtabula County judge.
According to case summary:
Michael Totora and his two sons were coming back from celebrating his parents’ 50th wedding anniversary on April 3, 2011 when their car broke down along Route 20 near Geneva. While waiting for help, Totora was hit by a car operated by Love. He was pronounced dead at the scene.
On June 1, 2011, Love filed a motion to suppress the results of her breath test given by the Ohio Highway Patrol. The trial court denied her motion, finding the issue of the Intoxilyzer 8000’s general reliability had already been decided by the 11th District.
On appeal, Love argued the trial court improperly overruled her motion to suppress because the results of the Intoxilyzer were inadmissible since the machine used to test her breath samples did not run a dry gas control before and after each time she blew into it as required at the time by Ohio Adm. Code 3701-53-04(B).
The 11th District previously found in Jones, supra that each breath sample is just a component part of a single test procedure.
The appellate court also rejected Love’s argument claiming the trooper was not properly authorized to operate the machine because he possessed a permit instead of an operator card.
Love also claimed she was prejudiced by her trial counsel’s failure to cross-examine Mary Martin, program administrator for Alcohol and Drug Testing for the Ohio Department of Health, at her suppression hearing.
In a 2-1 majority opinion, 11th District Judge Timothy P. Cannon wrote: “There is nothing in the record to indicate how cross-examination of Martin would have benefitted the arguments raised in the motion to suppress.”
The panel also disagreed with Love’s claims that the issue of whether the state needs to prove the general scientific reliability of a breath testing device is not yet settled.
Judge Cynthia Westcott Rice concurred.
Judge Colleen Mary O’Toole dissented, saying she would reverse and remand.
“I agree with appellant that former Ohio Adm. Code 3701-53-04(B) was ambiguous, and would decline to apply this court’s prior decision in Jones,” O’Toole said in her dissenting opinion.
State v. Love is cited 2014-Ohio-4287.