An Ohio Court of Appeals in Cincinnati has held that results from an Intoxilyzer 8000 are admissible in an OVI case.
The case is State v. Muchmore, 2013-Ohio-5100.
In February 19, 2012, the defendant submitted to a breath-alcohol test at a Cincinnati police station using the Intoxilyzer 8000. He “blew” .137, which is over the legal limit of .08. As a result, he was charged with OVI, or operating a vehicle under the influence.
The defendant tried to suppress the results of the breath test. Among other arguments, he suggested that the Director of Health had failed to set forth the necessary qualifications for individuals to operate the Intoxilyzer 8000.
Mary Martin, the former program administrator for alcohol and drug testing at the ODH, testified at the hearing. (Full disclosure: Mary Martin has left ODH and is now Of Counsel to Michael K. Allen & Associates.) Martin has testified in numerous OVI cases throughout the state on the Intoxilyzer 8000, the new breath testing machine introduced by in Ohio.
Martin testified that the ODH has a standardized process for obtaining an operator access card for the Intoxilyzer 8000. In order to operate the Intoxilyzer 8000, an individual must fill out an application meet certain qualifications.
On November 19, 2013, attorneys for the plaintiffs who are challenging the use of speed cameras in Elmwood Place filed a Motion for Summary Judgement.
A Motion for Summary Judgment is, basically, a request that the Judge decide the case in favor of the plaintiffs without a trial. The plaintiffs believe that no trial is necessary because all of the facts about the automated speed enforcement system are well established.
Read it here: Elmwood Motion for Summary Judgement
The plaintiffs are asking the Court to award the class of persons who paid tickets to Elmwood Place approximately $1.7 million, plus costs and attorneys fees. If the request is granted, then those who paid tickets would receive refunds out of the available funds (litigation expenses and fees would also be paid out of the award).
A hearing is tentatively scheduled for December 16, 2013 on the motion.
The United States Supreme Court is hearing arguments today about whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a search.
The case is Fernandez v. California, 12-7822.
The facts of Fernandez are fairly simple. The police were investigating a possible gang crime. The police came to the defendant’s apartment. When they got there, they heard sounds of a possible fight. The defendant’s live-in girlfriend appeared to be bruised and bloody. The defendant told the police that they could not come in. he said, “You don’t have a right to come in here. I know my rights.”
The officers, who feared domestic abuse, took the defendant from the scene and placed him under arrest for the gang crime. An hour later, the officers returned to the apartment. The girlfriend agreed to allow the police to search the apartment. The police found incriminating evidence, which led to the defendant’s conviction.
The issue is consent. Consent is an exception to the Fourth Amendment’s warrant requirement. The basic rule is that anyone with authority can give consent. In other words, anyone who lives in an apartment can agree to a search. However, the Supreme Court in 2006 created an exception to the basic rule: if one person objects to a search, the police cannot conduct a search even if another person with authority has granted permission.