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Cheating on Permit Exams...Only the Tip of the Iceberg
By Jon J. Saia (Adams County, Allen County, Ashland County, Ashtabula County, Athens County, Auglaize County, Belmont County, Brown County, Butler County, Carroll County, Champaign County, Clark County, Clermont County, Clinton County, Columbiana County, Coshocton County, Crawford County, Cuyahoga County, Darke County, Defiance County, Erie County, Franklin County, Fulton County, Gallia County, Geauga County, Guernsey County, Hamilton County, Hancock County, Hardin County, Harrison County, Henry County, Highland County, Hocking County, Holmes County, Huron County, Jackson County, Jefferson County, Lake County, Lawrence County, Logan County, Lorain County, Lucas County, Madison County, Mahoning County, Medina County, Meigs County, Mercer County, Miami County, Monroe County, Morgan County, Muskingum County, Noble County, Ottawa County, Paulding County, Perry County, Pike County, Portage County, Preble County, Putnam County, Richland County, Ross County, Sandusky County, Scioto County, Seneca County, Stark County, Summit County, Trumbull County, Tuscarawas County, Union County, Van Wert County, Vinton County, Warren County, Washington County, Wayne County, Williams County, Wood County, Wyandot County)
The State of Ohio, Office of Inspector General, recently issued a press release stating that it has found evidence of cheating during the annual testing of law enforcement officers seeking permits to conduct instrument checks (to make sure the instrument is in proper working order) and breath tests on individuals arrested for OVI.
Cheating on exams is only the tip of the iceberg concerning Ohio's problems with breath alcohol testing.
Despite the fact that the machines used in Ohio have an option to collect and store data of all test results, the Ohio Department of Health opts not to include that software in any machine purchased for use in Ohio. The failure to collect and store data becomes relevant when a machine malfunctions. Evidence of the malfunction can simply be discarded and no record of the malfunction will exist. The only way to discover evidence of a malfunction would be to place the law enforcement officer under oath and hope for an acknowledgement of the malfunction and admit to the misconduct. The guilt or and fear of lying under oath will hopefully bring out the truth.
Although the questioning of law enforcement on this issue appears to be one of the only means to discover the misconduct, Defense attorneys find themselves in a “Catch 22.” Although impossible, some courts require attorneys to have knowledge of the misconduct before being allowed to question law enforcement about the misconduct. Defense attorneys are forced to allege misconduct in every case and hope that there was actually some misconduct and for an admission to the misconduct or to not allege misconduct and waive a possible and very viable defense to an OVI charge.
This rationalization by some courts may seem odd and unfair, but in Ohio, the same rationalization is employed when law enforcement destroys a videotape recording of the stop, arrest and testing of an individual charged with OVI. Although a videotape recording no longer exists, the Ohio law requires defense counsel to prove that, if the tape still existed, there would have been evidence on the tape favorable to their client.
Many permit holders in Ohio currently have permits (authorizing the administration of instrument checks and breath alcohol tests) which indicate issuance by the Director of the Department of Health. The problem is that the individual that signed to permit was not the director of the Department of Health at the time of the issuance of the permit due to the appointment of a new Director. Despite this fact, many individuals are convicted of OVI based upon a breath alcohol test result which was conducted by an individual that may not have had the authority to conduct the test.
Another issue surrounding the renewal of permits involves proficiency testing. Proficiency testing requires those seeking permits to demonstrate their ability to perform instrument checks and to demonstrate knowledge of the operation of the breath alcohol testing instrument. Rather than spending the required 30 minutes on proficiency testing, most records indicate that no more than four to six minutes is spent on proficiency testing. Despite this fact, permits are routinely issued.
Currently, new regulations are being circulated by the Ohio Department of Health, which will greatly improve the breath testing process and Ohio. Improvements include dry gas simulation checks (currently wet bath) being performed before and after every test (currently every 192 hours), two tests within two to 10 minutes of one another to confirm the accuracy of the test (currently only one test is administered), approval of new instruments with state-of-the-art technology and components (currently using technology and components dating back 20 plus years), advanced software programs which include data collection and storage (currently not used Ohio instruments). Despite all of this new technology and assurances for accuracy, many of which have already been implemented in other states, Ohio still readily accepts the results of breath alcohol tests from instruments that have been around since the 1980’s.
Cheating on exams is only the tip of the iceberg when it comes to problems with breath alcohol testing in Ohio.
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