Posts Tagged ‘breath testing’

Intoxilyzer 8000 Is Unreliable Judge Finds

August 22nd, 2013

Intoxilyzer 8000A judge recently ruled the Intoxilyzer 8000 (Ohio’s newest breath testing machine) unreliable.  In State of Ohio v Chelsea Lancaster, Judge Teresa Liston who heard several cases, combined for purposes of challenging the device, at the request of Marietta Municipal Court Judge Janet Dyar Welch was assigned to hear just these Intoxilyzer 8000 cases.  Judge Liston is a retired judge who serves on the faculty of the National and Ohio Judicial Colleges and Capital University Law School.  She is well known and highly respected by her colleagues throughout the state. See HERE.

The cases addressed the court’s gatekeeper function as it relates to the Intoxilyzer 8000.  In other cases, the courts have relied upon a 1984 Supreme Court decision in State v. Vega to argue that the court serves no gatekeeper function.  They argue that once the Ohio Department of Health gives its imprimatur to the machine, it is ipso facto approved.  Here, in landmark fashion the court rejected this argument.  As quoted in the Ohio Association of Criminal Defense lawyers article,

A good portion of Judge Liston’s opinion deals with this issue and concludes that the “traditional view” of Vega is at odds with the actual decision. For this reason, Liston says courts have had trouble applying Vega logically and consistently and have had similar difficulty squaring it with cases rendered by the Ohio and US Supreme Courts, such as the landmark case of Daubert v Merrill Dow, which hold that courts must act as “gatekeepers.” Ultimately, in Lancaster, Judge Liston adopted a much more limited interpretation of Vega, which, not coincidentally, is very much in line with the recent holdings in the Intoxilyzer 8000 cases decided by the Ohio Eleventh Appellate District -where almost all the I-8000 appellate litigation has occurred.

The multi-day hearing was an opportunity for the State and defense bar (as represented by Tim Huey and Shawn Dominy) to bring out all of their best evidence and best experts.  The “evidence established that there were, among other things, problems with radio frequency interference (RFI) affecting the tests; a design flaw that invites officer manipulation and/or defeats the purpose of requiring two tests to agree with a set range and; the devices inability to adequately ensure that alcohol from the mouth, esophagus and other non-lung sources or other substances in the blood / breath won’t be read as alcohol. These were deficiencies cited by the court in barring the results. Id at OACDL.

What makes this case different, is that in previous Intoxilyzer 8000 cases, the courts have held that the machine carries a “presumption of reliability” that requires little of the state.  Here, the Judge properly shifted the burden to the defense who was able to attack the reliability of the machine rather than the issue of whether or not the State met its burden.  As the OACDL article (see above) states,

In the previous successful Intoxilyzer 8000 “reliability” challenges trial courts have put the burden on the prosecution to show the device is reliable. In those cases the prosecution generally failed to meet this burden and often refused to try; opting, instead, to appeal the trial court rulings. Generally, the two Ohio appellate panels that have heard these appeals have tended to hold that there is a “presumption of reliability” when the state chooses a breath test device.[vii] However, these appellate decisions have ruled that trial courts can still act as “scientific gatekeepers” but held the burden should be placed on the defense to establish that a particular device is unreliable.

Judge Liston observed that “the essential role of the judiciary is not to facilitate ‘slam dunk’ prosecutions” but is to “see that substantial justice is done.” For all of Ohio’s citizens who face a loss of their freedom at the hands of an unreliable machine, we hope that Ohio’s higher courts will adopt the approach set forth here.  Hearty congratulations to all of the attorneys and experts who have taken on this injustice.

Ohio OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find city-specific Intoxilyzer 8000 information please follow these links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

CBS Highlights MADD’s DADDS Technology (by DaytonDUI)

January 7th, 2013

All 16 major car companies and the federal government is behind technology (described in the video) that would test each and every person’s tissues, blood or breath each time you enter a car… your car.  The project’s goal is to develop an inexpensive, publicly-supported and extremely accurate technology that passively senses if a driver is at or above the illegal limit of .08 BAC.  If the technology says the driver is drunk, DADSS would prevent the vehicle from starting.  The projected implementation date is 2016-2018.  

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber Heights,Beavercreek, and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’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, and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Athens Judge Throws Out Intoxilyzer 8000 Rules

August 20th, 2012

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.


DUI Case Law Update: State v. Castle (Franklin County)

June 11th, 2012

State v. Castle, 168 Ohio Misc.2d 6, 2012-Ohio-1937

On July 3, 2011, Floyd Castle was arrested and charged with OVI (drunk driving) and other offenses.  When the Trooper administered a chemical test he chose to conduct that test on a BAC DataMaster breath test devise instead of Ohio’s newest machine the Intoxilyzer 8000.  The Trooper was qualified as a senior operator on the BAC DataMaster.  The Trooper also held an operator-access card to administer tests on the Intoxilyzer 8000.  The issue before the court is whether or not the Ohio Administrative Code, specifically O.A.C. 3701-53-09(D), allows the Trooper to conduct a test on the BAC DataMaster once he has been issued the Intoxilyzer 8000 operator-access card.

O.A.C. 3701-53-09(D) states:

Individuals desiring to function as operators using instruments listed under paragraph (A)(3) of rule 3701-53-09(D) of the Administrative Code shall apply to the director of health for operator access cards on forms prescribed and provided by the director of health.  The director of health shall issue operator access cards to perform tests to determine the amount of alcohol in a person’s breath to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code.  Individuals holding operator access cards issued under this rule shall use only those evidential breath testing instruments for which they have been issued an operator access card. [Emphasis added].

The argument for not allowing the Trooper to test on a BAC DataMaster is plainly set forth in the Code.  Administrative regulations are reviewed in the same manner as statutes. State v. Ready, 10th Dist NO. 05AP-501, 2006-Ohio-1212.  Legislative intent is the “cornerstone of statutory construction and interpretation.” State v. Jordan, 89 Ohio St.3d 488, 491-492, 733 N.E.2d 601 (2000).  If the language of the statute is unambiguous, a court must apply it as written; however, if more than one reasonable interpretation of the language exists, then the statute is ambiguous and must be construed by the court. Id., citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996); State ex rel Celebrezze v. Allen City Bd. of Commrs., 32 Ohio St.3d 24, 27, 512 N.E.2d 498 (1996).

After going through an exhaustive analysis of the statute and the legislative intent of the regulation, the court concludes that “Ohio Administrative Code 3701-53-09 is clear and unambiguous.  If an individual has an operator or senior-operator permit for a BAC DataMaster, the individual may administer chemical breath tests using a BAC DataMaster.  The individual may obtain multiple permits and use any instrument for which the individual has been issued a permit.  The individual may obtain an operator-access card.  As in this case, the individual may also be issued a permit after being issued an operator-access card.  However, once the individual has been issued an operator-access card, the individual is prohibited from using any other type of instrument, including those for which the individual may have been issued a permit.”  Id.  The court then goes on to recognize that applying the law might have a negative or undesirable impact for law enforcement.  “Nonetheless, the court is “constrained by the principles of separation of powers and cannot rewrite” the regulation. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

If you have been arrested on suspicion of operating a vehicle while impaired, you may have a defense if the arresting officer chose to use a machine other than the Intoxilyzer 8000.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  Immediate help is available by filling out this CONTACT form.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter at or Get Twitter updates via SMS by texting follow DaytonDUI to 40404. DaytonDUI is also available on Facebook and you can access updates by becoming a fan of Dayton DUI/OVI Defense.  You can also email Charles Rowland at: or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Infrared Spectroscopy and the Falsely High Breath Test (by DaytonDUI)

May 20th, 2012

Ball and stick model of ethanol

The Intoxilyzer 8000 operates using the scientific principle of infrared (IR) spectroscopy, which identifies molecules based on the way they absorb infrared (IR) light.  More specifically, when molecules in a breath sample are exposed to IR light the way they vibrate changes due to the bending of the (C-O, O-H, C-H, C-C) bonds.  Each type of bond absorbs light at a known wavelength, thus the amount of IR absorption identifies a substance as ethanol and how much ethanol is in the sample.

But here’s the rub…  The machine can identify any compound containing a methyl group molecular structure as ethanol thereby giving a falsely high reading.  Of the myriad of substances found in a human breath, 70% to 80% contain a methyl group molecular structure. The key is to make the machine as specific as possible for ethanol and only ethanol.  You would think that this would mean that over time we have employed machines with better IR technology and more and more filters to limit mistakes and increase specificity.  Unfortunately, the opposite is true.

The Intoxilyzer 8000 utilizes a type of IR technology that is different from its predecessor, the Intoxilyzer 5000 and its competitor the BAC DataMaster instrument.  The Intoxilyzer 8000 uses a pulsing IR lamp to excite the sample molecules and a pyro-electric detector to detect results.  Compared to the continuous flow of IR and a cooled lead selenide detector in the other machines the 8000’s technology is slower, less precise, less reliable and less sensitive. The 8000 has been shown to fail to detect mouth alcohol and other interfering substances.  Instead of employing additional “filters” to limit the result to ethanol the Intoxilyzer 8000 uses fewer than its predecessor or its competitor.  This means that potentially innocent people may face arrest, prosecution and possibly conviction.

If you are on a diet or a diabetic, you may be susceptible to a false BrAC reading.  The National Highway Traffic Safety Administration (NHTSA) has found that people who are diabetics or dieters can have acetone levels that are hundreds, if not a thousand of times higher than people who are not diabetics or dieters. The key issue here is that acetone is one of the many substances that can be falsely detected as ethyl alcohol by the Intoxilyzer 8000. Other common environmental compounds may also affect a test.  Those substances include: compounds found in cleaning fluids, celluloid, gasoline, paint removers, and in lacquers. Other common substances that can result in false BAC levels are alcohol, vomit, or blood in the person’s mouth.

Studies conducted in Tennessee and Vermont determined that the Intoxilyzer 8000 did not produce results which could satisfactorily be relied upon for the prosecution of DUI (OVI) offenses. The instrument was evaluated for accuracy, precision and performance. The task force given the responsibility to approve instruments for use in Tennessee found that the “CMI Intoxilyzer 8000 did not yield satisfactory results” to accurately determine BAC levels. The instrument has run into a significant number of problems in Florida, Arizona and Minnesota as well.

If you face the possibility of an OVI conviction, contact Charles M. Rowland II immediately at (937)318-1384 or 888-ROWLAND.