The judicial ostrich vs. the judicial hawk.

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1 DO OVI CASES BETRAY A HIDDEN AGENDA BEHIND DAUBERT? Is everything as it seems in both life and the law? When large sums of money are at stake, can hidden agendas result or is that only for the conspiracy minded? If there are no hidden agendas involved with Daubert, then there should be a simple explanation for the apparent contradictions in the approach Ohio courts take in dealing with scientific evidence. Likewise, the obvious answers to the following two questions should be the correct ones: Question one: Whose opinion on matters of scientific evidence is more likely to be accepted in the courts of Ohio, a respected physician at the James Cancer Hospital or a graduate of the Cincinnati Police Academy? If you think it is the former, you are wrong. Question two: True or false: The doctrine expressed in cases such as Daubert and Miller Bike is the law in Ohio and all courts are required to serve as gatekeepers to prevent junk science from affecting jury verdicts. If you answered true to this question you are also wrong. If you think the answers to the questions set forth above must be wrong, then you are probably not familiar with the Alice In Wonderland world that one enters when one seeks to obtain justice in a driving under the influence case. When one goes through the looking glass into the world of OVI law, one encounters the mirror image of the law that applies to corporate defendants. There is an anti-daubert culture or mindset in such cases which holds that the reliability and accuracy of scientific evidence are not proper matters for courts to consider. In breath testing, for example, scientific accuracy and reliability of the testing machine cannot be raised in court. The only permissible issue is regulatory compliance. This has resulted in a culture, at least at the municipal court level, which holds that science is not the job of the courts. The judicial ostrich vs. the judicial hawk. Some have referred to the way Ohio deals with scientific evidence in 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. See Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993), and Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998). 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:

2 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? Valentine v. Conrad, 110 Ohio St.3d 42, 850 N.E.2d 683, 2006-Ohio-3561 (Ohio Jul 26, 2006) Is alcohol testing really more complicated than cancer? Unlike the scientific issues involved in cancer, the scientific issues involved in drunk 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 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; although, at the time of this writing, there were rumors of his imminent retirement. 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 drafted by the retired police officer are based upon reliable scientific methodology as Daubert requires. In fact, except as noted below, the courts are prohibited from hearing evidence or rendering a decision based upon the fact that the regulations take a position diametrically opposed to that taken by the National Safety Counsel and virtually all reputable experts. Evidence controverting the officer s decision is generally inadmissible. The net result is that neither the general reliability of breath testing machines nor the manner in which they are used is subject to challenges based upon 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, (May 11, 2006), Franklin App. No. 05AP-371, 2006 WL and State v. Vega, (1984) 12 Ohio St.3d 185. 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 Dauber * * * standard. Luke, id, 5. In OVI cases, the Daubert junk science prohibitions do not apply to the admission of test results for alcohol. Not only is proof of scientific validity unnecessary, proof to

3 the contrary is strictly barred. In other words, in OVI cases the law goes a step beyond Daubert in the opposite direction. Defendants cannot even try to show that junk science is used in breath testing. Under Vega, the scientific decisions about the general reliability of the breath testing machine cannot be challenged if the regulations promulgated by the Ohio Department of Health are followed. The supreme authority is the bureaucrat in charge of drafting those regulations, the retired Cincinnati police officer. There is one nearly meaningless exception to this rule. A defendant may still attempt to prove that the Department of Health abused its discretion in approving the testing machine and drafting the regulations. Note that this unconstitutionally reverses the burden of proof in a criminal case and puts the burden on the defendant instead of the state. Instead of the prosecution being required to meet the highest burden of proof known to the law, the defendant is instead required to meet the usually insurmountable burden of establishing an abuse of discretion. Since the abuse of discretion issue is one for the court, the defendant is also denied a jury trial on the issue of whether the testing machine used to convict him is generally reliable. With this one nearly meaningless exception, there is a conclusive presumption that the testing machine is generally reliable. One might argue at this point that this is much ado about nothing. Vega and Luke merely substituted a governmental regulator for the court. The problem is that in so doing, a non-adversarial 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 the scientific reliability of evidence used against him. It is as if only one side could be heard from in a Daubert hearing with the court having no power to 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 is apparently a quaint and 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 the police served as prosecutor judge and jury. Even if police do not now 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 it be true that courts are subservient to a retired police officer? The answer is that 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 a retired police officer makes scientific decisions about the admissibility of evidence which are contrary to the generally accepted scientific practice. These issues are no longer presented in court. As such, it is not surprising that courts have no idea what scientific decisions are being made by the bureaucrat.

4 Why has angels dancing on pins supplanted science in OVI but not PI cases? The culture fostered by Vega and Luke which bars evidence to the contrary may play a significant part in nurturing the belief that breath testing machines are uniformly accurate. It is always puzzling that people who cannot tell the difference between a Datamaster and an Inotxilyzer either in appearance or inner workings are still absolutely sure that both function perfectly in testing alcohol levels. An indication as to how well courts keep up with science and technology in this area is demonstrated by the fact that courts even now still often refer to the breath testing machine as the breathalyzer despite the fact that the Breathalyzer has not been approved for use in Ohio for at least 20 years. See, for example, State v. Lester, 2010 WL 58929, 2010-Ohio-41 (Ohio App. 12 Dist. Jan 11, 2010) which uses this incorrect reference. Presumably this occurs because people think that breath testers are like bridges. We assume without proof that someone in the government is paying attention to such things. Most of us do not take the time or have the expertise to inspect bridges before driving over them. We nevertheless assume that they work. Perhaps it is also thought that if testing machines really had problems, defense counsel would expose this. The difficulty is that when a bridge collapses, everyone knows it. When a test is wrong, only the defendant and his counsel know. Nobody believes them because evidence to that effect is barred. People also presumably assume that scientists are in charge of alcohol testing in Ohio rather than a retired Cincinnati police officer. Daubert says that courts are the ultimate bridge inspectors. Vega and Luke say that this bridge inspection function is not necessary unless corporate defendants are using the bridge. Those cases also bar interested parties from sticking their heads under the bridge and checking whether it is rusting out. If, as in Ohio, only a single test is performed on one machine, it is hard to tell that there is a problem. When multiple tests are done, things get more interesting, especially if multiple machines from different manufacturers are used. Here are some results obtained` at a recent 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 a Datamaster. Two minutes later the same subject tested.155 level on an Intoxilyzer One minute after that he went back to the first 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, someone with.000 alcohol in their 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. The scientific reliability of the computer source code which runs the breath testing machines is another area where Daubert is officially unnecessary and scientific accuracy is assumed rather than proven. Ohio recently purchased new breath testing machines

5 from a company called CMI. There has been extensive litigation in several other states regarding the reliability of the computer source code used in breath testing machines produced by that manufacturer. Despite court orders in other states to the contrary, CMI has refused to produce the code thereby running up huge fines for contempt. No one outside of CMI, including the Ohio Department of Health has had access to that code. In the process of obtaining bureaucratic approval for those machines, the manufacturer asserted that this problem would not be an issue in Ohio due to the an Ohio Supreme Court decision, presumably Vega. See the transcript of the November 25, 2008 testimony of Don Leach of CMI before the Ohio Department of Health. In other words, the Daubert requirement of reliable scientific methodology is not an issue that the courts of Ohio or the manufacturer need to worry about. Note also that it is apparently not an issue for the regulators either since the Ohio Department of Health also does not have the source code. This fits nicely with the anti-science, anti-daubert culture which says that science is not a matter for the courts to consider. It goes one step beyond that when it precludes the regulators from considering this as well. Because real science is banned from the courtroom under Vega, 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 upon 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 which the courts will not listen to and to 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 over a generation. Consequently, judges, prosecutors, lawmakers, and the public tend to believe that breath testing is just about perfect and that almost everyone is guilty. If everyone is guilty, it probably would not be much of a leap of imagination for busy courts to think that trials are a waste of time and that technical niceties regarding scientific evidence are unnecessary. This may be particularly true if one is of the following school of thought: the chief purpose of the legal system is to provide a framework for peaceful coexistence, not find ultimate justice Yaakov (James) Mosher. In other words, Vega creates a false perception of scientific validity because it bars evidence that would be inconsistent with this perception. Thus, in a circular fashion, this lack of any evidence of problems with alcohol testing perversely justifies the perception that the abridgment of the constitution authorized in Vega is warranted. Why has an anti-daubert culture prevailed and spread beyond its regulatory rationale while leaving PI cases untouched?

6 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 recent Columbus Bar Association seminar there was a demonstration which was surprising to many attendees but not to experienced OVI lawyers. The demonstration was one which 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 under age consumption per se OVI level. Courts have been divided on the extent to which results from these machines should be admitted into evidence. This issue reached the Ohio Supreme Court on conflict jurisdiction only to have jurisdiction declined as being improvidently granted. See State v. Derov, 121 Ohio St.3d 269, 903 N.E.2d 636, 2009-Ohio-1111 (Ohio Mar 18, 2009). The machine in question was what is commonly referred to as the PBT or preliminary breath test. Officers rely on this machine in making the decision to arrest. Many courts also allow this evidence in making a probable cause determination. The unusual thing about this testing machine is that no regulatory compliance is required because there are no regulations governing the PBT. 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. No capable OVI lawyer would be so naïve as to think that this procedure would be followed in OVI cases. Instead, what prevails is the Vega culture that tells municipal judges that science is not their job. As a result, many courts uncritically allow results from devices that register a prohibited level on Wonder Bread. What happens at motion hearings is that PBT results are admitted without any scientific foundation. Judicial notice is not the rationale because expert testimony was not elicited in the first instance. The case of State v. Edwards, 107 Ohio St.3d 169, 837 N.E.2d 752, 2005-Ohio-6180 (Ohio Dec 07, 2005) also plays a part in admitting PBT results at motion hearings. Edwards, correctly followed the express provision of the rules of evidence which provides that the rules do not apply to motion hearings. Unfortunately Edwards, gave no guidance as to what evidentiary principles do apply if the Ohio rules do not. Do common law rules apply since, at least at the motion stage, they are not supplanted by the Ohio Evidence Rules? Is it the wild west where there is no law of evidence? If the rules of evidence do not apply, what is the basis for objecting to any evidence offered no matter how outlandish or unscientific it might be? In practice, what happens is that judges make gut decisions largely based on the evidence rules until one of the parties complains that the rules do not apply. Then the judge usually allows the evidence and gives it whatever weight his or her gut dictates.

7 The problem with this is that due to Vega and Luke, most municipal court judges gut instinct is that science is not the job of the courts. Thus, the PBT result comes in and is relied upon despite the lack of any proof of scientific accuracy or reliability. It is important to note here that it is the culture or mindset fostered by Vega which controls, rather than the actual holding in Vega. Vega itself only applies where there are actual regulations. There are no regulations for the PBT. Nor is the PBT the only instance of this culture or mindset which holds that scientific accuracy is not the concern of the courts. In the area of field sobriety tests (FST s), legislation also takes the place of proof and it takes the place of science. Results of these tests are routinely admitted in court despite the fact that no Ohio court has ever required expert testimony that they are scientifically accurate. A comparison to the practice in personal injury cases is again apposite. 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 lawyer s 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 without courts registering even the slightest concern about junk science. Opponent s publications are routinely admitted and relied upon without proof. While it may seem that the State of Ohio is the plaintiff in drunk driving cases, in a real sense it is the federal government. Drunk driving law has essentially been federalized for some time now. For example, the states did not independently come to the conclusion that the blood alcohol level should be lowered from.100 to.08. The level was lowered because congress threatened to cutoff federal highway money if states did not change their criminal statutes to comply with federal requirements. The National Highway Traffic Safety Administration police training manuals (NHTSA), 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

8 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 as to their validity. This practice was joined in and approved by the Ohio Supreme Court. See State v. Bresson, 51 Ohio St.3d 123, 554 N.E.2d 1330 (Ohio May 30, 1990) wherein the court upheld a lower court decision finding that the horizontal gaze nystagmus test described in the officer s training manual is admissible: without requiring expert testimony. Id, 124. 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. Id, emphasis added. 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. Stuster, Jack and Burns, Marcelline Validation of the Standardized Field Sobriety Test Battery at BAC s Below 0.10 Percent Final Report Submitted to: U.S. Department of Transportation, National Highway Traffic Safety Administration at p , emphasis added. (Reprinted in the Appendix of the 2004 and 2006 NHTSA instructor s manuals in Session VIII) While the court in a footnote of Bresson refers to NHTSA data, an examination of the data set forth in the footnote discloses that the HGN is linked to a prohibited concentration, not impairment. This is not a distinction without a difference. If the HGN test does not measure impairment, then it should be inadmissible in a case where there is no chemical test. Because once again science was ignored, a test that does not measure impairment is universally admitted in impaired cases, sometimes with testimony that it has an 80 percent reliability level. This is clearly junk science but it is, nevertheless, the law.

9 If an earlier Ohio Supreme Court went beyond the data, they may have been led there by the National Association of Chiefs of Police, the authors of the manuals. The chiefs have been in the vanguard of the going beyond the data movement. Every couple of years or so a new manual comes out with new wording. It should be noted that, these revisions are not based upon new scientific studies. What little science there was behind the manual has not changed significantly. Instead, the revisions are generally made to fudge the data in a manner more consistent with the conclusions the police would like to see. For example, they added wording in the preface indicating that the FST s show impairment which was apparently utterly without foundation and in contradiction of the actual study. In other words, science by manual revision based upon fudged data. Courts in thirteen 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 here 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 upon the legislature to render whatever conclusion is desired without the bother of employing the scientific method or involving any actual scientists. Why should the government go to the bother of proving that the scientific evidence it wants to use either exists or is actually correct? If a bona fide scientific study is done, it might not yield the results the prosecution wants. Furthermore, any expert presenting such results in court would be subject to cross examination and counter testimony could be adduced. The courts might not rule in favor of the prosecution. There is a safer and easier alternative. There is a strong tradition in Ohio of passing a new tough on drunk driving bill every time an election rolls around. It is much easier and safer to go to the legislature and have them legislate whatever scientific result the prosecuting attorney s association wants rather than chancing it in court. One result of this effort was (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 the fudged conclusions in the manuals have been legislatively pre-validated. 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 defense lawyers began arguing that if courts were not going to require any scientific proof of the items in the officer s manual, they should at least require the officers to follow the manual. The theory behind this is that tests such as the horizontal gaze nystagmus test cannot be considered to be lay observations and thus police officers and judges lacking scientific expertise cannot tell the extent to which deviations from the required procedure can affect the results. The manual which sets forth the procedure for administering the so called field sobriety tests would seem to require this conclusion as well. It provides in boldface type

10 and all capitol letters that: IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED. See the 2002, 2004 and 2006 DWI Detection and Standardized Field Sobriety Testing Student Manual, Chapter VIII p. 19. The Ohio Supreme Court agreed with defense arguments and required strict compliance with the manual. See State v. Homan, 89 Ohio St.3d 421 (2000) and State v. Schmitt, 101 Ohio St.3d 79, 801 N.E.2d 446, 2004-Ohio-37 (2004). 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 (D)(4)(b) (ii). The alleged concern for science vs. the mandatory admission of inherently unreliable evidence. The net effect of this is that the legislature has required the courts to admit scientific evidence which has been found by the Ohio Supreme Court to be inherently unreliable. This legislatively approved backsliding towards junk science may not bother the Ohio Supreme 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 9 of Schmitt, supra, 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, supra. A significant problem with the substantial compliance standard is that judges and police officers are not scientifically qualified to determine what effect if any such things as incorrect stimulus speed have upon 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. What happens instead is that the judge makes a gut level guess about the significance of the deviation that is uninstructed by the actual science of the matter. After all, under the culture fostered by Vega and Luke, science is not the job of the courts. Defense objections to this process are ignored. What basis does defense counsel have to object? The rules of evidence do not apply under Edwards. Once again, science is ignored. It is also interesting to note that the legislature imposed a double standard regarding the requirements of the training manual. The substantial compliance standard is only applicable to the police, not to the defendant. Defendants are still scored on a strict compliance standard. The officer has heard the rather complex instructions for the test many times. Even so, if the officer cannot remember them well enough to instruct the

11 defendant correctly, that is usually acceptable. Most defendants have never heard these complex instructions before. If a defendant does not perform perfectly because he cannot remember the instructions exactly right, he is arrested. A secondary problem with science by lobbying is that in court, at least people charged with drunk driving have lawyers. While the law may hamstring the lawyers severely, at least they are present. In the legislature, there is not even a pretense of comparable protections. Nobody gets an appointed lobbyist. It makes perfect sense that the prosecution would want to have scientific issues decided in that forum rather than in court. It can further be argued that the concept of substantial compliance itself says a lot about the law s real attitude towards science. The substantial compliance doctrine is not just applicable to field sobriety tests. It has long been used to weaken the breath testing regulations as well. The purported motivation behind Daubert is a fervent concern for scientific rigor. The theory behind Vega is that the alcohol testing regulations ensure that true science is being employed. So if we are so concerned about science, why do we try to weaken the regulations? Shouldn t we err on the side of good science rather than junk science? If the regulations equal good science under Vega, then, strict compliance (i.e. strict observance of the good science regulations) should mean good science. Substantial compliance would, by definition, then mean something less than good science. Why is it that the law does not even have a term for the opposite of substantial compliance? Presumably such a term would refer to being scientifically more rigorous than the regulations require (strict compliance just indicates meeting the requirement of the regulations, not going beyond them in the direction of good science). If there is such a fervent concern for scientific rigor, why is it that the law will stretch the regulations in the direction of bad science but not in the direction of good science? If courts are absolutely indifferent to good science in OVI cases, can a fervent concern for good science be the real motivating factor behind Daubert? Is it instead possible that there could be some hidden agenda other than good science motivating the exclusion of evidence that might expose corporate treasuries? Would a PI plaintiff ever be allowed to use the slipshod practices routine in OVI prosecution? When corporate treasuries are at exposed, bona fide experts may not testify. When the freedom of a criminal defendant is involved, anything in a police manual is admissible. In addition, graduating from the Cincinnati Police Academy gives one a scientific expertise so strong that all courts must yield to it. It would be interesting to watch what would happen if a plaintiff in a personal injury case were to try using the same shoddy 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 without a college degree as an expert on alcohol testing. Would misapplied medical tests be admitted on the basis of a

12 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 2500 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. Thucydides c. 460 BC c. 400 BC, History of the Peloponnesian War If this is true, then 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 poor hire lobbyists or is it the rich and 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., 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009)? Was Judge Sturgess correct when he said: "Justice is open to everybody in the same way as the Ritz Hotel."--Judge Sturgess, 22 July 1928 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 popular 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 Ohio Supreme Court has refused for over 25 years to reexamine 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 that behind claims of workplace induced cancer, things may change. For now, the scientific testimony of a toxicologist and professor emeritus at The Ohio State University will continue to be barred in OVI cases if it contradicts scientific decisions made by a graduate of the Cincinnati Police Academy. We learned in law school and from the statues on the tops of Victorian courthouses that justice is blind. We are taught that the law is applied equally and fairly to all and that

13 the identity of the party does not influence the application of any precedent or statute. Even so, it is hard not to recall the admonition of former attorney John Mitchell to: Watch what we do, not what we say. We say that justice is blind, but do we apply cases such as Daubert, equally and fairly to all? 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 bad science 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 drunk 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. For other authority that good science may not be the only issue involved in Daubert litigation, see: A Cognitive Scientist Looks at Daubert by George P. Lakoff, PhD. July 2005, Vol 95, No. S1 American Journal of Public Health S114-S120. 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. They believe they are just following the law. No man ever believes that the Bible means what it says: He is always convinced that it says what he means. --George Bernard Shaw. The same could probably be said about people s attitudes about the law. Only the source of the authority is different. 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 upon busy judges who may not have the time or background to analyze the subtle and sophisticated scientifically developed persuasive techniques that are being employed to achieve this goal. The author does not necessarily endorse the views of Thucydides, Shaw, Sturgess, Mosher, Mitchell, and Lakoff; however, he does confess that a consistent alternative explanation is something of a mystery. Ideas about what such an alternate explanation might be are welcomed. In the mean time, Ohio law will continue to force courts to convict innocent people based upon false evidence that they cannot challenge. This may not be a significant problem unless it happens to you. Drunk driving convictions can cost people their freedom, their property, their jobs, their houses, their pensions, their retirement benefits, and sometimes their 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, shouldn t it be good for the gander as well?

14 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. - Anonymous, The Parliament of Byrdes, c 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. Submitted by: CLEVE M. JOHNSON ATTORNEY AT LAW 495 South High Street, Suite 400; Columbus, Ohio (614) Fax (614) ovilawyer.com

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