Do OVI cases betray a hidden agenda behind Daubert?
The following article was authored by Cleve M. Johnson and first appeared in the November/December 2010 issue of Ohio Lawyer, Vol. 24, No. 6. It is being republished here with permission.
Drunken driving convictions can cost defendants their freedom, property, jobs and more, but some question the fairness of case law standards, admissible evidence and "junk science" in OVI cases.
Some have referred to the way Ohio deals with scientific evidence in operating a vehicle while intoxicated (OVI) cases as the ostrich approach. The eyes and ears of the court are officially buried in the sand when it comes to the general reliability of the breath testing machine. If we refuse to see or hear evidence of unreliability, it does not exist. While this criticism may seem harsh, the critics have a point.
In personal injury cases, the courts watch scientific evidence like a hawk to prevent "junk science" from being admitted into evidence. In such cases the judgment of courts in scientific matters is superior to that of the best experts in the field. This has led Justice Pfeiffer, in lamenting the situation, to ask, "Does this court really believe that Evid. R. 702 was designed to keep experts in their field like Drs. Miner and Newton from testifying in a case like this? Or are we to believe that the real cancer experts are not at James Cancer Hospital but at the courthouse in Chillicothe?"
Is alcohol testing really more complicated than cancer?
Unlike the scientific issues involved in cancer, the scientific issues involved in drunken driving cases appear to be just too complicated for the courts to deal with. In OVI cases, the courts have decided that it is best to let a retired police officer make the scientific decisions as to what type of alcohol testing evidence the courts may admit. Unbeknownst to perhaps most judges, the person in charge of devising alcohol testing regulations is a retired Cincinnati police officer without scientific credentials. It is true that, theoretically, the pediatrician who is the director of the Ohio Department of Health promulgates all the alcohol testing regulations in Ohio. In actual practice, that is not what happens.
Are courts really concerned about good science?
The courts do not check to see if the regulations are based on "reliable scientific methodology," as Daubert requires. In fact, except as noted below, the courts are prohibited from hearing evidence or rendering a decision based on the fact that the regulations take a position diametrically opposed to that taken by the National Safety Council and virtually all reputable experts. Evidence controverting the officer's decision is generally inadmissible. The net result is that neither the general liability of breath-testing machines nor the manner in which they are used is subject to challenges based on either admissibility or weight of the evidence. Ohio is also alone among the states in taking this position.
The issue of the scientific validity of the regulations has never been the subject of either testimony or cross-examination. For OVI defendants, bureaucratic fiat is the law, not Daubert. If you think Daubert is fairly and uniformly applied to all parties in Ohio, take a look at State v. Luke and State v. Vega. As the court put it,"[W]e agree with the holding of the Fifth Appellate District that, pursuant to Vega, an attack on the accuracy and credibility of breath test devices in general is prohibited. Therefore, there is no need to determine the reliability of the machine under a Daubert standard."
One might argue at this point that this is all much ado about nothing. Vega and Luke merely substituted a governmental regulation for the court. The problem is that in doing so, a non0adversarial process was substituted for an adversarial one, and the constitutional protections afforded by the courts such as cross-examination and proof beyond a reasonable doubt were eliminated. In fact, the need for any proof whatsoever regarding the general scientific reliability of the chief evidence in the case has been eliminated. Also eliminated is the defendant's right to challenge scientific reliability of evidence used against him or her. It is as if only one side could be heard from in a Daubert hearing with the court having no power t reject any evidence offered by that party. Special rights like those given in Daubert are reserved for mainly corporate defendants, not criminal ones.
In OVI cases, the idea of checks and balances and separation of powers seems to be an outdated notion, since not only do the police bring the charges, they decide what is admissible into evidence as well. A cynic might view the process as not that far removed from the old police courts where police served as prosecutors, judges and juries. Even if the police do not currently sit on the bench, is the process much different if judges are required to defer to the decisions of a retired police officer?
How can this be true? This is what happens when courts get out of the check and balance business and allow their traditional function as arbitrators of admissibility to be usurped. It is what happens when political decisions made by unmonitored bureaucrats are substituted for scientific ones. When a generation passes without judicial oversight, things start to go wrong. The net result is that bureaucratic decisions are made about the admissibility of evidence that are contrary to the generally accepted scientific practice. Since these issues are no longer presented in court, it is not surprising that courts have little idea what scientific decisions are being made by the bureaucrat.
Why have angels dancing on pins supplanted science in OVI cases?
If, as in Ohio, only a single test is performed on one machine, it is hard to tell if there is a problem. When multiple tests are done, things get more interesting, especially if multiple machines from different manufacturers are used. At a seminar sponsored by the Ohio Association of Criminal Defense Lawyers, a number of subjects were tested on a number of different machines. One subject tested at a .087 level on Datamaster. Two minutes later the same subject tested .155 level on an Intoxilyzer 8000. One minute after that he went back to the Datamaster and tested .069. Another subject tested at a .095 level on one Datamaster and .057 on another Datamaster a minute later. Under Ohio's urine testing regulations, a person with .000 alcohol in his or her blood could nevertheless be convicted of OVI alcohol per se if there was alcohol in the urine but not in the blood. Good defense lawyers know things like the above can happen. Because of Vega, courts and the public do not.
Criminal defense attorneys are instead forced to concentrate on technical arguments about regulatory compliance that closely resemble analyzing how many angels can dance on the head of a pin. Guilt or innocence does not depend on factual innocence, but rather on the luck of having a regulatory flaw and counsel's skill in finding it. It is frustrating for counsel, not to mention defendants, to have evidence of factual innocence that the courts will not listen to and instead be forced to engage in vigorous litigation over regulatory compliance on an issue that makes no difference to factual guilt but which can potentially exonerate the defendant. This leaves judges and prosecutors with the impression that the defendant is guilty but just trying to escape on a technicality. In reality just the reverse is true. The defendant has evidence of actual innocence; the courts just refuse to hear it. Instead, the accused is left with only a technical regulatory issue. Thus, Vega leads to an erroneous perception that justice is being done because evidence of innocence has been banned in Ohio for more than a generation.
Why has an anti-Daubert culture prevailed and spread beyond its regulatory rationale while leaving personal injury cases untouched?
This anti-science, anti-Daubert culture has become so omnipresent that it even pervades areas where the original rationale for the anti-Daubert culture is missing. It prevails even where there is no regulation that legally excuses the need to consider science in the first instance.
At a Columbus Bar Association seminar, there was a demonstration that was surprising to many attendees, but not to experienced OVI lawyers. The demonstration was one that that is unlikely to ever be seen in an Ohio court. A common breath testing machine used by the highway patrol and many municipal police departments was demonstrated. A sober subject blew into the machine and tested .000. The subject immediately thereafter consumed some Wonder Bread and tested again. This time the result was in excess of .030, more than the underage consumption per se OVI level.
A corporate civil lawyer might think that in the absence of regulation, courts would revert to the normal mechanisms of Daubert and judicial notice. Traditionally as each new scientific device comes on the market, courts require testimony of a scientific expert before the results can be admitted. A capable OVI lawyer would probably not think this procedure would be followed in OVI cases. Instead, what prevails is the Vega culture, which tells municipal judges that science is not their job. As a result, many courts uncritically allow results from devices that register a prohibited level of Wonder Bread. What happens at motion hearings is that portable breath test results are admitted without scientific foundation. Judicial notice is not the rationale because expert testimony was not elicited in the first instance.
Science by lobbying
Instead of calling experts from the James Cancer Hospital, suppose the plaintiff's lawyers in the Valentine case merely introduced a publication about the causes of workplace-induced cancer that appeared in a periodical published by a trial lawyers association. Suppose further that the publication was then used as proof of something the publication itself expressly asserted was not true. No experienced observer would believe that scientific conclusions appearing in a document published by one's opponent could substitute for actual testimony. At a minimum, expert testimony vouching for the conclusions in the publication would be required, especially where those conclusions are expressly disclaimed by the very publication itself.
By contrast, this is the sort of thing that is done routinely in OVI cases. Opponent's publications are routinely admitted and relied on without proof. While it may seem that the state of Ohio is the plaintiff in drunken driving cases, in a real sense it is the federal government. Drunken driving law has essentially been federalized for some time now. The National Highway Traffic Safety Administration (NHTSA) police training manuals are published by the federal government. They contain scientific claims that are accepted uncritically by courts without first requiring any actual expert testimony or allowing for cross-examination of any such experts.
In particular, the horizontal nystagmus test (HGN), a neurological test used by doctors for other purposes, was historically admitted without proof of validity even before its legislative transmogrification into a test for alcohol. Several years ago, police departments started to teach officers alleged methods of alcohol detection set forth in manuals drafted by the National Association of Chiefs of Police and published by NHTSA. Because the tradition of requiring actual science rather than "junk science" as a prerequisite to admitting evidence had long been dead in OVI cases, these results were admitted by municipal courts more or less uncritically and without expert testimony to their validity.
The Supreme Court of Ohio joined in and approved this practice. In State v. Bresson, the court upheld a lower court decision finding that the HGN test described in the officer's training manual is admissible "without requiring expert testimony."
Perhaps if expert testimony had not been dispensed with, the court in Bresson might not have gone beyond the science and judicially declared that the HGN measures impairment even though NHTSA expressly disclaims the truth of this incorrect assumption. The Court in Bresson held that, 'According to a test manual devised by the United States Department of Transportation for use by law enforcement agencies, the HGN test is the single most accurate field test to use in determining whether a person is alcohol impaired."
What the NHTSA scientists actually say is this:
Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect tests to possess "face validity, "that is, tests that appear to be related to actual driving tasks. Tests of physical and cognitive abilities, such as balance, reaction time, and information processing, have face validity, to varying degrees, based on the involvement of these abilities in driving tasks; that is, the tests seem to be relevant "on the face of it." Horizontal gaze nystagmus lacks face validity because it does not appear to be linked to the requirements of driving a motor vehicle. The reasoning is correct, but it is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment.
Courts in 13 other states have disagreed with Bresson, and no court outside of Ohio has followed it. Ohio, however, is oblivious to this trend, and the war against science has progressed. As a result, things have only become worse since Bresson. The tradition elsewhere of experimental verification by actual scientists has been further supplanted in favor of science by lobbying. Instead of proving the scientific validity of field sobriety tests, prosecution lobbyists now prevail on the legislature to render whatever conclusion is desired without the bother of employing the scientific method or involving any actual scientists.
One result of this effort was S4511.19 (D) (4) (b) (ii). According to this provision, anything in any current or future NHTSA manual is admissible if there was "substantial compliance" with the manual. The net effect is that fudged conclusions in the manuals have been legislatively prevalidated. Whatever is written in the manual is, ipso facto, admissible. Thus, in Ohio, defendants are convicted by a combination of science by fudging the data and science by lobbying.
The aforementioned example of science by lobbying developed because the Supreme Court took the radical step of requiring the police to comply with their own manual, which provides that deviation from the standardized procedure compromises the result. In State v. Homan and State v. Schmitt, the Court concluded that a lack of strict compliance with the manual rendered the results "inherently unreliable." Instead of presenting proof that substantial compliance would not compromise the results, prosecuting attorneys instead went to the legislature and got them to change the strict compliance standard required by Homan. This is the aforementioned substantial compliance standard codified in S4511.19(D)(4)(b)(ii).
Science versus the mandatory admission of "inherently unreliable" evidence
The net effect of this is that the legislature has required the courts to admit scientific evidence that the Supreme Court of Ohio has found to be "inherently unreliable." This legislatively approved backsliding toward "junk science" may not bother the Court. Although it is dicta, the court appears to be inclined to acquiesce in what many believe is a legislative usurpation of its power. In Schmitt, the Court indicates an inclination to eschew Daubert in favor of the legislative approach of science by lobbying. While the statute purports to require compliance with the rules of evidence, such compliance is illusory. This is so because the issue is uniformly decided at the motion hearing stage and the rules of evidence do not apply at motion hearings under Edwards.
A significant problem with the substantial compliance standard is that judges and police officers are not scientifically qualified to determine what effect, is any, such things as incorrect stimulus speed have on the ultimate result of the horizontal gaze nystagmus test. In theory, the prosecution is supposed to bring in experts to testify as to the effect of stimulus speed on result. In actual practice this never happens-the court simply makes ad hoc decisions based on instinct rather than science.
Would a PI plaintiff ever be allowed to use the practices routine in OVI prosecution?
When corporate treasuries are exposed, bona fide experts may not testify. When the freedom of a criminal defendant is involved, anything in a police manual is admissible. It would be interesting to watch what would happen if a plaintiff in a personal injury case were to try using the same practices used by plaintiff's lawyers (i.e. prosecutors) in OVI cases. Corporate counsel would probably become apoplectic at the very thought of a plaintiff's personal injury lawyer calling a retired police officer as an expert on alcohol testing. Would misapplied medical tests be admitted on the basis of a police manual without an expert if offered by a personal injury plaintiff-or would perhaps Daubert be found applicable?
We all know Daubert would be applied. The interesting question is why? Criminal defendants are supposed to have more protections under the constitution than civil defendants. Why is the reverse true? Why is the law extremely sensitive to the admission of allegedly "junk science" when it is offered against a corporate defendant but oblivious to it when it is offered against a criminal defendant?
What is the real rationale?
Cynics would argue that Thucydides gave us the answer 2,500 years ago: [R]ight, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.
If this is true, the following questions become increasingly relevant: Who writes the law, the weak or the strong? Do lobbyists have any effect on the law? Do the weak and the poor hire lobbyists, or is it the rich and the strong? Does it take money to get elected? Who contributes to legislative and judicial campaigns, the weak or the strong? Do the strong contribute to candidates who think like they do? What are we to make of cases like Caperton v. A.T. Massey Coal Co., Inc.? Was Judge Sturgess correct when he said, "Justice is open to everybody in the same way as the Ritz Hotel"?
The difficulty is finding any other rationale that explains the inconsistent application of Daubert, and its progeny. One can argue that the legislature has required such a result. Does that mean that the legislature can dispense with science if that is politically unpopular, and that such quaint notions as due process and proof beyond a reasonable doubt can be satisfied with "junk science" and assumptions without proof? Are the courts powerless to stand up for the Constitution?
Because the Supreme Court of Ohio has refused for more than 25 years to re-examine its four-to-three decision in Vega, lower court judges who recognize the problem feel constrained from doing anything about it. As a result, the anti-science culture and the disparate application of Daubert will most likely continue. Consequently, the rights of corporate defendants will continue to be far more secure than those of criminal defendants. If courts ever start scrutinizing the science behind alcohol testing as closely as they do behind claims of workplace-induced cancer, things may change.
If the principle behind Daubert is good science, then it should be applied consistently across the board in product liability and other civil cases as well as in OVI cases. If the real purpose of Daubert is protecting corporate treasuries, then it makes sense for Daubert to be inapplicable and for bad science to be allowed where corporate treasuries do not suffer and other goals may be accomplished, such as the perceived political necessity of appearing to be tough on drunken driving. The lack of consistent application as demonstrated by Luke appears to lay bare the fact that the real purpose of Daubert may not be good science at all.
This is not to say that some diabolical conspiracy exists among judges to protect corporate treasuries. Most judges think of themselves as good people and try to do a good job. It is, however, possible that very bright and well financed corporate counsel are capable of co-opting, for their own purposes, a line of cases ostensibly designed for one purpose and converting it to another. It is also possible that they are capable of foisting it on busy judges who may not have the time or background to analyze the subtle and sophisticated scientifically developed persuasive techniques that being employed to achieve this goal.
In the meantime, Ohio law will continue to force courts to convict innocent people based on false evidence they cannot challenge. This may not be a significant problem unless it happens to you. Drunken driving convictions can cost people their freedom, property, jobs, houses, pensions, retirement benefits and sometimes political offices. If a person loses a job due to a false OVI conviction, it can even be fatal to the person or a family member if the job loss causes a loss of health benefits. There is an old defense lawyers joke: How do you turn a conservative into a liberal? Answer: Arrest him. If it happens to you, it is a significant problem. If Daubert is good for the goose, should it not be good for the gander as well?
Many liberals, and almost all criminal defense lawyers, believe that the endless war on drugs has done great damage to the constitutional guarantees once provided by the Fourth Amendment. Many conservatives believe the Second Amendment right to bear arms is in constant danger. On the other hand, almost no one believes that the allegedly lesser statutory right to do business in corporate form is in any danger of being diminished or eliminated. Maybe the answer to the disparate application of Daubert is the time honored one: "Little money, little law." Perhaps there is no hidden agenda. Perhaps the answer is merely that corporations have much more money than criminal defendants and thus their legal protections are correspondingly much greater regardless of the logic of the matter.
