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MAHONING COUNTY Judge debates results of DUI cases



Published: Sat, February 9, 2002 @ 12:00 a.m.



About 1,500 people are charged with drunken driving in the Austintown court each year.

By IAN HILL

VINDICATOR STAFF WRITER

AUSTINTOWN -- A Mahoning County judge is considering suppressing results from a Breathalyzer machine used by 450 law enforcement departments in Ohio, including several in Mahoning County.

Judge David D'Apolito, who presides in county court in Austintown, has been asked by attorneys for 12 people to suppress the results that led to the 12 being cited in cases of driving under the influence by the Ohio State Highway Patrol.

The Canfield post of the patrol, along with the county sheriff's office and police departments in Canfield, Austintown and Milton Township, test blood-alcohol level using the Ohio BAC DataMaster Breathalyzer machine.

The attorneys are arguing that the Ohio Department of Health did not follow the correct procedure when it approved changes to the machine's software in 1999, didn't test the software before it was approved and that the county prosecutor can't prove that the software changes didn't affect test results.

One concern: Ken Cardinal, the prosecutor for Austintown court, said he is concerned that if Judge D'Apolito suppresses the evidence, some drunken drivers may see it as a precedent and flood the court with similar motions.

A ruling in favor of the defendants should specify that it only affects the cases against the 12 local residents, he said.

Cardinal said about 1,500 people are charged with drunken driving in county court in Austintown each year.

"If it's not case-specific, this is a nightmare for us," he said.

Defense lawyer J. Gerald Ingram thinks the ruling will be specific to the 12 cases.

Ingram was one of six attorneys representing the defendants at a hearing Friday at which Cardinal said he thinks the health department followed proper procedures.

Referred to letter: He cited a letter the health department sent to National Patent Analytical Systems, Inc., the Mansfield company which produces the BAC DataMaster, stating that the company could move ahead with the software changes.

The letter was dated Jan. 4, 2000, and signed by a forensic scientist from the health department.

"There is nothing in this machine that has not been approved by the department of health," Cardinal said.

The software changes made the machine compatible with a printer and modem.

Attorneys for the defendants say the director of the health department was required to approve the changes.

Written arguments from both sides are due by the end of the month.

hill@vindy.com




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