Posts Tagged ‘evidential breath testing’

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.

 

Rowland Speaks to Ohio Municipal Attorneys Association

July 26th, 2012

Charles M. Rowland II (DaytonDUI) was honored to be asked to speak to the Ohio Municipal Attorney Association at their Ohio Municipal Law Institute.  The Ohio Municipal Attorney Association is made up of Law Directors, Village Solicitors, including civil law attorneys and prosecutors make up the individuals working for cities and villages active.  He gave a one hour presentation on the Intoxilyzer 8000 breath test machine and the machine’s troubled implementation in Ohio.  ”What made this speech interesting for me, is that I had to speak to a room full of prosecutors,” said Rowland.    ”I emphasized the special role that prosecuting attorneys play in upholding proper science in the courtroom.  As a former prosecutor I tried to emphasize that all attorneys have an obligation to assure that they system works to promote fairness and justice.” Rowland was asked to speak because he was one of the first defense attorneys in Ohio certified on the Intoxilyzer 8000, is Ohio’s only Forensic Sobriety Assessment certified attorney, and has dedicated his practice exclusively to defending the accused drunk driver.  ”It’s just an honor to have people who you fight with respect you enough to have you address their conference,” said Rowland.  Contact Charles M. Rowland II at (937) 318-1384 or visit his website at www.DaytonDUI.com.

 

 

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 www.Twitter.com/DaytonDUI 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: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Calibration of the Intoxilyzer 8000, O.A.C. 3701-53-04

June 8th, 2012
Ethanol

The revised Ohio Administrative Code section 3701-53-04 incorporates the new rules for calibrations of the Intoxilyzer 8000. See O.A.C. 3701-53-04(B) as set forth below.  The “new” standards “automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology (NIST).  The dry gas results ”are valid when the results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the alcohol concentration on the manufacturer’s certificate of analysis for that dry gas standard. A dry gas control result which is outside the range specified in this paragraph will abort the subject test or instrument certification in progress.”

Under the old rules the evidential breath testing machine which tested outside the (0.005) parameters was required to be taken out of service (see O.A.C. 3701-53-04(A)(2)) until repaired.  It is unclear what would happen to a machine that tested outside the parameters under division (B).  It appears that the Radio Frequency Interference Rules (O.A.C. 3701-53-04(A)(1)) will still apply and that a check of the Intoxilyzer 8000 every seven (7) days will be required.  Section (E), which requires refrigeration of the solution appears to be rendered moot by the Intoxilyzer 8000′s pre-test using dry gas.  However, the dry gas will raise its own group of scientific questions which attentive DUI lawyers will be required to check out.

3701-53-04 Instrument checks, controls and certifications.

(A) A senior operator shall perform an instrument check on approved evidential breath testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-02 no less frequently than once every seven days in accordance with the appropriate instrument checklist for the instrument being used. The instrument check may be performed anytime up to one hundred and ninety-two hours after the last instrument check.

(1) The instrument shall be checked to detect radio frequency interference (RFI) using a hand-held radio normally used by the law enforcement agency performing the instrument check. The RFI detector check is valid when the evidential breath testing instrument detects RFI or aborts a subject test. If the RFI detector check is not valid, the instrument shall not be used until the instrument is serviced.

(2) An instrument shall be checked using a solution containing ethyl alcohol approved by the director of health. An instrument check result is valid when the result of the instrument check is at or within five one-thousandths (0.005) grams per two hundred ten liters of the target value for that approved solution. An instrument check result which is outside the range specified in this paragraph shall be confirmed by the senior operator using another bottle of approved solution. If this instrument check result is also out of range, the instrument shall not be used until the instrument is serviced or repaired.

(B) Instruments listed under paragraph (A)(3) of rule 3701-53-02 shall automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology (NIST). Dry gas control results are valid when the results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the alcohol concentration on the manufacturer’s certificate of analysis for that dry gas standard. A dry gas control result which is outside the range specified in this paragraph will abort the subject test or instrument certification in progress.

(C) Representatives of the director shall perform an instrument certification on approved evidential breath testing instruments listed under paragraph (A) (3) of rule 3701-53-02 of the Administrative Code using a solution containing ethyl alcohol approved by the director of health according to the instrument display for the instrument being certified. An instrument shall be certified no less frequently than once every calendar year or when the dry gas standard on the instrument is replaced, whichever comes first. Instrument certifications are valid when the certification results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the target value for that approved solution. Instruments with certification results outside the range specified in this paragraph will require the instrument be removed from service until the instrument is serviced or repaired. Certification results shall be retained in a manner prescribed by the director of health.

(D) An instrument check or certification shall be made in accordance with paragraphs (A) and (C) of this rule when a new evidential breath testing instrument is placedin service or when the instrument is returned after service or repairs, before the instrument is used to test subjects.

(E) A bottle of approved solution shall not be used more than three months after its date of first use, or after the manufacturer’s expiration date on the approved solution certificate, whichever comes first. After first use, a bottle of approved solution shall be kept under refrigeration when not being used. The approved solution bottle shall be retained for reference until that bottle of approved solution is discarded.

(F) Each testing day, the analytical techniques or methods used in rule 3701-53-03 of the Administrative Code shall be checked for proper calibration under the general direction of the designated laboratory director. General direction does not mean that the designated laboratory director must be physically present during the performance of the calibration check.

(G)Results of instrument checks, controls, certifications, calibration checks and records of service and repairs shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 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 to40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI

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.