State v. Estep , 73 Ohio App. 3d 609 ( 1991 )

I concur in the judgment and opinion because it correctly decides this case in terms of the constitutional issue involved. I concur separately because mere resolution of the constitutional issue does not resolve the underlying problem of the evidentiary value of scientific tests. Simply put, scientific tests must be both constitutional and reliable.

The cardinal point about scientific evidence is that if we are to use it as a fact-finding tool, we can only use it within the terms of scientific discipline. In science, all test results are questionable and to be valid must be able to be replicated, and must be available to others who would contest the findings. Scientific tests are reliable because the results are always subject to retesting and because they can always be checked by an independent authority. Here we are adopting the results of scientific testing without also adopting the controls which make the discipline reliable as a factfinder. The opportunity for independent testing is a sine qua non of science.

I think the Supreme Court realized this in California v.Trombetta (1984), 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413, where it held that failure to keep the breath sample was not constitutional error. The Supreme Court noted, at 490-491,104 S.Ct. at 2535, 81 L.Ed.2d at 423, fn. 11, that the defendants "* * * could also have protected themselves * * * [by requesting blood or urine testing], because the State automatically would have preserved urine and blood samples for retesting * * *."

The Supreme Court, while holding that not preserving the breath samples did not reach constitutional proportions, said:

"State courts and legislatures, of course, remain free to adopt more rigorous safeguards governing the admissibility of scientific evidence than those imposed by the Federal Constitution. * * *" (Emphasis added.) Id. at 491,104 S.Ct. at 2535, 81 L.Ed.2d at 423.

If we are going to rely on scientific testing, then we are going to have to stop thinking like lawyers and arriving at conclusions such as this: since evidence was tested once by the state and found by its expert to be inculpatory, it loses its character as potentially exculpatory evidence. This is a dubious presumption, since it is based on the idea that all scientific tests are always accurate. They are not and, like every other human endeavor, are subject to human error.

In Banks v. Fed. Aviation Administration (C.A.5, 1982),687 F.2d 92, the court noted the difficulty of obtaining a just result where samples used for testing are not preserved. WhileBanks is a civil case and was decided before Trombetta, its reasoning on laboratory testing applies to all such cases. In Banks, two air traffic controllers gave urine samples which were tested and found to contain traces of cocaine. The samples were then destroyed. The court noted the evidentiary problem:

"* * * The laboratory tests here were the only meaningful evidence resulting in the discharges. The accuracy of those tests, including the possibility that the samples were mixed-up, damaged, or even inaccurately tested, was the likely determinant of the entire case. Indeed, challenging the laboratory reports was probably the only way the controllers could succeed in their appeal.

"The opportunity to cross-examine the laboratory director falls far short of substituting for the samples themselves. He obviously would be a highly antagonistic witness in any challenge of the laboratory results. But, as Davis states in his Administrative Law Treatise, 2d ed., § 12:1: `A party whose interest is protected by due process is entitled to opportunity for a trial-type hearing on disputed adjudicative facts,except when inspection or testing is deemed a better method forfinding the disputed facts. * * *' Id. at 406 (emphasis added). The reliance here was upon a laboratory test. A laboratory challenge of that test was its only effective counter."Banks, 687 F.2d at 94-95.

In State v. Purdon (1985), 24 Ohio App. 3d 217, 24 OBR 395,494 N.E.2d 1154, the court declined the Supreme Court's suggestion to act as a court and held that it was up to the legislature to regulate scientific evidence:

"* * * As pointed out by the court in Trombetta [467 U.S. at 491-492, fn. 12, 104 S.Ct. at 2535-2536, fn. 12, 81 L.Ed.2d] at 423-424, fn. 12, the legislature, if it so desired, could have adopted `* * * more rigorous safeguards governing the admissibility of scientific evidence than those imposed by the Federal Constitution.' The legislature has not seen fit to impose such safeguards for violations of R.C. Chapter 4511, as it has done for violations of R.C. Chapters 2925 and 3719, and we will not impose more rigorous safeguards in the absence of legislative directive." Purdon, 24 Ohio App.3d at 220, 24 OBR at 397, 494 N.E.2d at 1157.

It has always been the province of the courts to require that evidence be competent, and I would disassociate myself from the implication that the courts cannot act without direction from the legislature.

Finally, I would like to make one point which seems to have been lost in all of the cases on this question — a practical point. The rule we are following here cannot work only to the detriment of innocent people. As is usually pointed out, the various tests are probably accurate and denying a defendant the chance for independent testing is not much of a handicap because the independent test would only confirm the state's test. This is true, and in the ordinary case where the defendant knows he has had too much to drink, a demand for an independent test is unlikely. But where the defendant is innocent, where he is the unfortunate victim of some testing error, where the defendant is most likely to request a test, the denial of independent testing by destruction of the sample can result only in unsafe and unsure convictions.

I do not believe we can make our streets safer by convicting innocent people, and concur separately to make that point.