Tag: athens municipal court

Athens Judge Throws Out Intoxilyzer 8000 Rules

00Breath Testing, DUI Case LawTags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

State v. Moore (12 TRC 1842) and State v. Montague (12 TRC 3773) Athens Municipal Court

In another in a series of troubles for the implementation of Ohio’s newest breath test machine, Judge Grimm in Athens County has halted use of the Intoxilyzer 8000.  Courts throughout Ohio must decide how, given this ruling, they will deal with the implementation of the machine.  The issue before the court involved the rules adopted by the Ohio Department of Health.  Specifically, the court was asked to address whether or not the Ohio Department of Health has authority to issue operator cards for the Intoxilyzer 8000, and assuming it does, whether or not the Ohio Administrative Code (OAC 3701-53) has articulated standards for who receives operator access cards and can thus use the machine.

Given its significance, I have included large portions of the decision in this posting.

On the first issue, the court concluded:

The second issue was more complicated.

Having found that the Ohio Department of Health has failed to articulate standards for the issuance of operator access cards, the Court then has to decide the impact and legal significance of this omission.

 Congratulations to Jon Saia, a great DUI/OVI attorney who argued this case in the Athens Municipal Court.  This is a significant case that represents another black eye for the Ohio Department of Health who has had multiple missteps in the implementation of this machine.


Intoxilyzer 8000 Finding Opposition Throughout Ohio and Beyond

00Breath Testing, DUI Case LawTags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Eye death

In an article in the Athens News (click HERE), the newspaper outlines the latest developments in the attacks on the implementation of the Intoxilyzer 8000 breath test machine.  Apparently, the Ohio Department of Health is not providing a rousing defense of the machine.  Quoting from the article, “Toy noted that in both the Athens and Pickaway County cases, ODH official Mary Martin testified on behalf of the agency, but that Dumm’s ruling says her testimony given that she has no scientific background isn’t sufficient basis to validate the Intoxilyzer’s findings as trial evidence.”

Up till now, prosecutors have relied on a 1984 ruling by the Ohio Supreme Court in the case of State v. Vega. Courts have interpreted that ruling to say that once the Department of Health certifies a breath-testing machine, a defense attorney can’t bring in expert witnesses to try to discredit the machine’s reliability. Now, Toy suggested, the rulings by Grim and Dumm may be swinging the authority for deciding what’s admissible back to the judges, and away from the state agency.

The article also points out some of the difficulties that the machine has encountered in other jurisdictions. “In Tennessee, he wrote, a state agency tested three different devices and did not approve the Intoxilyzer, finding that it “failed to yield satisfactory results on all accuracy, precision and performance tests.  In Florida, the judge pointed out, there has been “considerable litigation” around the machine. In one case there, a state appellate court has ordered the manufacturer of the Intoxilyzer, CMI, Inc. to turn over the device’s computer “source code” which the company has so far refused to do, in defiance of a court order.”

Dayton DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook, www.facebook.com/daytondui.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.


Are We One Step Closer to Killing State v. Vega?

00Breath TestingTags: , , , , , , , , , , , , , , , , , , , , , , , , ,
Seal of Hancock County, Ohio

Most challenges to a breath testing instrument in Ohio are limited by a 1984 Ohio Supreme Court ruling (State v. Vega) that held that once the Ohio Department of Health certifies a machine, it becomes valid and the defendant loses the ability to argue defenses based on the underlying science of the machine.  This author has made it a long-standing goal to fight this case and has done so for over 10 year.  Well, a case out of Athens may represent a crack in the dam.  The story is from the Columbus Dispatch.

Breath-tester’s reliability challenged in hearing

Saturday, May 28, 2011  03:07 AM


ATHENS, Ohio — An Athens County drunken-driving case could provide defense attorneys with ammunition to challenge the reliability of an alcohol breath-tester commonly used in Ohio.

Municipal Judge William A. Grim agreed to hear testimony challenging the Intoxilyzer 8000 at a hearing yesterday to determine whether the testimony will be allowed in the trial. Typically, such challenges are dismissed, citing a 1984 Ohio Supreme Court ruling that a defendant’s right to a fair trial is not harmed by not permitting expert witnesses to attack the reliability of such machines in general.

In a ruling Wednesday that allowed the testimony, however, Grim wrote that while the 1984 case is often cited to support the claim that breath-testing machines cannot be challenged in court once they’re approved by the Ohio Department of Health, he thinks judges have the authority to determine whether that evidence is allowable.

Defense attorneys — including D. Timothy Huey, president-elect of the Ohio Association of Criminal Defense Lawyers — said yesterday’s hearing was a first step toward having the Ohio Supreme Court revisit the issue.

Thomas E. Workman Jr., a Massachusetts attorney who holds a master’s degree in electrical engineering and has worked for companies including Texas Instruments, Hewlett-Packard and Xerox, testified that the machine’s design makes it more likely than others to misidentify other substances as being alcohol.Unlike older machines, the Intoxilyzer 8000 easily can be carried in the trunk of a police car and used in the field. That means suspected drunken drivers can be tested on the spot by blowing into a tube, as opposed to a time-consuming journey to and from a police station to take a test on a machine that isn’t portable.

Defense lawyers say the Intoxilyzer 8000 is less reliable than fixed instruments because of environmental factors such as heat and humidity. They note that the machine sometimes gives “ambient failures,” meaning that the presence of alcohol in the air skews the results.

Robert Jennings, a spokesman for the Ohio Department of Health, which certifies the Intoxilyzer 8000 breath-tester, said the agency remains “pretty confident about its reliability.” The portable testing machine is used by police agencies in 77 Ohio counties.

The lead defendant in the Athens County case is Nicole R. Gerome, a 29-year-old Athens woman charged with DUI after being stopped by the State Highway Patrol on March 16. Three other defendants also are seeking to allow testimony challenging the machine’s reliability in their cases.

Among the issues raised yesterday was the allegation that data from sobriety tests done with the machine, and uploaded to the Health Department’s website, are being altered or removed.

Mary Martin, the agency’s program administrator for drug and alcohol testing, testified that she “would be amazed” to learn that such changes or deletions had occurred.

Columbus lawyer Cleve Johnson, however, testified that he has downloaded multiple results for the same sobriety test. In one case, Johnson said, he found two blood-alcohol levels for a woman in Pickaway County — zero and 0.191. Now, he said, “you can no longer find the zero test, but the 0.191 test is still on there.”

Columbus lawyer Jon J. Saia said a certification test on a machine later used in Athens County returned an impossibly high alcohol level, but the machine was certified anyway. Now, Saia said, the record of the test can no longer be found on the website.

Athens City Prosecutor Lisa Eliason complained at the outset of the hearing that she thinks Grim has his heart set on getting the Supreme Court to look anew at the breath-tester issue.

“It seems that the court has clearly made up its mind, that we need a case to kick (the 1984 ruling) up to the Supreme Court,” she said.

Grim responded, “The only decision the court has made so far is that we’re going to have a hearing. … The court will follow the law.”

The hearing is scheduled to resume in late June.