TORONTO - Toronto county court Judge Joseph Corabi has suppressed a breathalyzer test for a Wintersville police officer who was arrested on a drunk driving charge in March but the case will continue forward.
An Ohio State Highway Patrol trooper saw Wintersville Police Sgt. Shawn T. Gegick on county Road 22A around 1:44 a.m. on March 9. The patrol reported Gegick took off on an ATV at speeds reaching 60 mph.
The chase lasted 1.8 miles when Gegick tried to turn off county Road 24 and rolled the ATV over, the patrol reported.
Gegick was charged with operating a vehicle under the influence and failure to control.
But Gegick's attorney, James Abrams, filed a motion to suppress the breathalyzer test because the machine failed a calibration test and was sent out for service two days after Gegick's test.
Guernsey County Prosecuting Attorney Daniel G. Padden was appointed as special prosecutor in the case because of a conflict with the county prosecutor's office having cases with Gegick as a police officer. Padden did not file a fleeing charge against Gegick.
Corabi said court cases in Ohio have held that before the results of a breathalyzer test can be admissible, the prosecution must show the instrument was in proper working order.
A suppression hearing was held in Toronto county court on Aug. 7 concerning the breathalyzer test machine.
Lt. Joseph Fetty, highway patrol Steubenville post commander, who testified at the hearing, said the patrol had been using two machines - the Intoxilyzer 8000, a newer machine, and the Datamaster. The Intoxilyzer machine is currently tied up in litigation before the Ohio Supreme Court concerning its usage and validity.
The patrol and other law enforcement across the state had to go back to using the older yet reliable Datamaster machine, Fetty said.
Fetty said the breathalyzer machine is checked every seven days and calibrated.
He said he checked the calibration on the Datamaster used by Gegick on March 4, and it tested within the tolerance level.
He said he checked it on March 11 and the machine twice showed readings outside the tolerance level.
The machine was then sent out to be serviced, he said.
Fetty said the breathalyzer machine reading outside the tolerance level is not common.
"The Datamaster is a pretty solid machine," he said.
He said the machine has been at the post for years before it showed a problem.
"The court must conclude that, although the instrument check performed prior to (Gegick's) breath test demonstrated that the BAC Datamaster was in proper working order, the lone instrument check conducted subsequent to (Gegick's) test demonstrated that the machine was malfunctioning," Corabi said.
"Therefore, the court is left with no choice but to conclude the machine was not operating correctly on March 9, 2014. This conclusion is further supported by the fact that the machine was immediately sent for repair and replaced," the judge said.