HAMILTON — Judge Rob Lyons’ ability to decide a drunk driving case impartially is not the problem. But Butler County Prosecutor Mike Gmoser said the appearance of impropriety is at the heart of the recusal controversy.

Judge Michael Sage, who presides over the common pleas court, heard arguments Thursday on Gmoser’s request that Lyons disqualify himself from deciding a legal issue regarding the use of the Intoxilyzer 8000. The state’s OVI case against Brittani Alford has been pending in his Area I Court in Oxford, while Gmoser and Lyons haggle over whether it is improper for Lyons to rule on a suppression motion he has used on behalf of his private practice clients in Hamilton County.

Gmoser said Lyons must step aside to protect the integrity of the judicial system.

“Your choice your honor is not to decide whether or not he really can be fair and impartial,” he said. “I believe the issue for this court is whether or not this conduct rises to the level of the public saying there’s something wrong here... he cannot serve two masters.”

Lyons is not considered a “party” in this matter, but Sage let him speak anyway. He said the law is clear and county court judges can only be disqualified from practicing as an attorney in the county which they serve. He said he and the two other county court judges do not practice in each other’s courts.

“Mr. Gmoser suggests that I limit my private practice beyond what the law requires,” he said. “I believe what Mr. Gmoser is seeking is improper and troubles me on many levels, including the separation of power, restraining trade and the Ohio Code of Professional Responsibility... Any possible perception of impropriety is one manufactured by Mr. Gmoser.”

In a memorandum Lyons filed Tuesday he said if he is disqualified on this case, he would be reluctant to handle any OVI cases in his private practice, as would the other part-time judges. He said this could result in Sage having to assign a common pleas judge to preside over all drunk driving cases in the county.

Assistant Prosecutor Don Caster told Sage that the decision Lyons wants to make is substantive and there is a dearth of case law on the subject. Thus the judge may find himself citing his own ruling in the future, which is untenable.

Sage said he plans to have a written ruling in about a week.

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