State of Ohio vs. Michael Schaaf (12/28/2012), Franklin County Court of Appeals
Michael Stout hired some of the best lawyers in the city. His defense attorneys scoured the Ohio State Patrol's breath testing machine and records. During this audit, the lawyers discovered notes from the Ohio Department of Health suggesting additional steps that are not included in the Ohio Department of Health regulations.
The defense argued, of course, that these notes or memos should be incorporated into the ODH regulations and followed. Naturally, the State argued that the notes or memos from ODH are not relevant since they are not specifically included in the ODH regulations.
Ohio's case law on this topic stinks for the defense. All the State of Ohio needs to prove is substantial compliance with the written regulations. Any subsequent guidelines, memos or notes issued by ODH to police departments ought to be followed in a courtroom if they are to be followed in a police department.
Not according to Judge French of the Franklin County Court of Appeals (and now most recently appointed by Governor Kasich to the Ohio Supreme Court). These notes are superflous, meaningless and don't need to be followed according to the 10th District.
My editorial note on this: the efforts judges will go through in order to find compliance with Ohio laws in drunk driving cases is mesmerizing. The Ohio Departmenet of Health issues written guidelines to police departments that they must follow in the administration of breath tests. However, once a defendant finds out that one of these directives was not followed, it is no big deal because the directive hasn't been specifically included in the ODH regulations? The hypocrisy is stifling.