In State v. McMahon, 2013-Ohio-2557, the implementation of the Intoxilyzer 8000 was challenged due to confusion in the Ohio Administrative Code sections dealing with “operators.” It was alleged that the Ohio Department of Health failed to establish qualifications for issuing permits for Intoxilyzer 8000 operators as required by R.C. 4511.19 and 3701.143. The court ruled that R.C. 3701.143 authorizes the director of health to issue permits to breath-alcohol machine operators, and we found the ODH’s position that an operator access card is a type of operator permit to be supported by the relevant code provisions. Id. at ¶ 13-14. The Court found that the statute should be read in favor of the broadest interpretation instead of read in a restrictive way in favor of the accused.
More recently, in State v. Clemente, 2013-Ohio-5213 and State v. Wirth, 2013-Ohio-5215, Ohio’s First Appellate District again saved the Intoxilyzer from an Administrative Code problem of their own making. In these consolidated cases, the records of Intoxilyzer 8000 test were required to be maintained for a period of three years under Ohio Administrative Code 3701-53-01(A). In ruling that the government had retained these records, the court went a long way to read the statute in the broadest possible sense. It noted that Ohio Adm.Code 3701-53-01(A) requires only that the results of the tests be retained, and we held that the “result” is the lower of the two breath-alcohol measurements taken during the test. Muchmore at ¶ 31; McNett at ¶ 31. The ODH duplicated the results of the missing tests by consulting the District 2 logbook, and although it cannot recover all the extrinsic data from those tests, there is no provision requiring it to do so.
The court also engaged in an interesting burden shifting analysis which requires the accused to show prejudice. It state,
When a defendant challenges the admission of a breath-alcohol test result in a motion to suppress, courts apply a burden-shifting analysis. The state must show substantial compliance with ODH regulations, and if the state meets that burden, a rebuttable presumption arises that the test results are admissible. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 24; State v. Booth, 1st Dist. Hamilton No. C-070184, 2008-Ohio-1274. Then, the burden shifts back to the defendant to show that he or she “was prejudiced by anything less than strict compliance.” Burnside at ¶24.
If you find yourself accused of an OVI, you must have an attorney who understands the intricacies of the ever-changing Ohio OVI laws. Of particular importance is an understanding of the flaws endemic in the Intoxilyzer 8000 breath test machine. Surely, the implementation and adoption of the Intoxilyzer 8000 will long be seen as a black eye for the Ohio Department of Health.
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 emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI defense.”
Intoxilyzer 8000 information and other city-specific info at the following links: