Margin of Error in Alcohol Tests is a Weak Defense? - DUI News - 8/26/2016

The Fifth District upholds conviction when officer claimed the defendant went back and forth across a marked center line but video did not show the same, and when conviction required an alcohol content of 0.238 and defendant's alcohol content ranged between 0.21 and 0.27 based on the test and margin of error.

State v. Perdue, 2016 Ohio 4947 (5th Dist.).

July 11, 2016

Perdue was pulled over and issued a traffic citation for making a wide turn, during which the police officer claimed his "truck crossed over the double yellow line by a tire width and drove back onto the double yellow line, but then crept over to the left of the double yellow line again."  He was also ultimately cited for an over the limit OVI for having a concentration level of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one hundred milliliters of urine.

Purdue appealed the trial court's denial of his suppression motion, arguing on video of the traffic stop the, "double yellow line is only seen onscreen for a brief time early in the sequence, and thus the back-and-forth movement of the truck is not fully reflected in the recording."  The police officer maintained that he saw the back-and-forth movement and that the angle of views might explain the discrepancy.  The Fifth District agreed with the trial court, however, by deferring to it as the better finder of fact and suggesting that the officer needed reasonable suspicion, not proof beyond a reasonable doubt, to initiate the traffic stop.

With regard to the the charge that he had an alcohol content in excess of 0.238, a criminalist from the crime lab testified that that the urine sample resulted in a level of 0.24; however, the margin of error was .03.  Purdue argued that, with that margin of error, his actual alcohol content could have been anywhere between 0.21 and 0.27.  Because the jury could only guess at whether his alcohol content was over 0.238.  The Fifth District concluded; however, that a reasonable trier of fact could still have convicted, and that, "the jury did not clearly lose its way and create a manifest miscarriage of justice requiring that appellant's conviction be reversed and a new trial ordered."  As a result, Purdue's appeals were denied.