OXFORD — The Butler County prosecutor continues to demand Area I Court Judge Rob Lyons disqualify himself from ruling in an OVI case because of the appearance of impropriety.

The judge continues to refuse and the matter will be heard by Judge Michael Sage, the presiding judge of the common pleas court, next week. At issue is whether Lyons, a part-time judge, ought to decide a legal issue in an OVI case in his court, while he represents seven clients in his private practice who have raised the same issue.

Prosecutor Mike Gmoser filed an answer to the judge’s reply on Friday, challenging most of the judge’s assertions. Lyons in a reply brief filed in March was affronted that Gmoser implied his law firm could profit from his judicial decisions.

The judge also noted that it wasn’t until the moment he was about to rule on a suppression motion the prosecutors called foul.

“For over 13 years, I have been deciding OVI cases. The majority of these cases have involved breath tests,” he wrote. “I see no valid reason why the prosecutor’s office suddenly feels that there may be an ‘appearance of impropriety.’”

Lyons also said if this impropriety specter is so pervasive, his fellow judges on the other area courts should also be disqualified, since they routinely hear OVI cases and represent similarly situated clients in their private practices.

The judge also noted he does not know of any rule that requires him to write a written opinion of his decision that others could cite as precedent.

Assistant Prosecutor Donald Caster says the case in question is one of first impression and would set precedent on whether Breathalyzer testing complies with Ohio Department of Health regulations.

“No appellate court has decided this issue and the trial courts that have examined the question have reached conflicting conclusion,” he wrote. “While Judge Lyons is, of course, correct that case law generally concerning ‘substantial compliance’ with ODH regulations is voluminous, case law regarding the meaning of the regulation at issue here is scant.”

Trumbull County Judge Tom Swift, who is chair of the Ohio Judicial Conference, said the issue at hand is ethical rather than legal. He said he can’t discuss the Lyons case, but the part-time judges in his county have told him they will refer private clients to other attorneys if there is a dearth of legal precedent on the issues surrounding a case.

“When you come into those situations where there is a conflict or a potential conflict or the appearance of impropriety I think the thoughtful judge steps aside at that point and asks someone else to hear the case,” he said.

The first Lyons case Gmoser complained about was settled recently in Hamilton County. Caster said that doesn’t close this case.

“By advocating the position taken by the defendants in the instant cases, Judge Lyons has created a situation in which a reasonable observer could question his impartiality,” he wrote.

If Lyons is disqualified, Sage will select his replacement on the case.

Contact this reporter at (513) 696-4525 or dcallahan@coxohio.com.