In the first appellate decision involving the Intoxilyzer 8000, Ohio's 12th District Court of Appeals ruled that tests should be allowed despite the plain language of the Ohio Administrative Code. The ruling is the first setback to defense attorneys (like me!) who have challenged the implementation of the machine in Ohio. The case is State v. Kormos, 2012-Ohio-3128 and you can read the full decision HERE.
At issue was Ohio Administrative Code section 3701-53-04 which 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 rules, as set forth here, require that the dry gas control be conducted prior to each "subject test." Attorneys challenged the way police were conducting the tests because law enforcement officers would conduct a dry gas control test and then require the subject to provide TWO samples for evidential testing. A plain reading of the OAC would require a dry gas control before EACH of the two samples. In a decision last August, Clermont County Municipal Judge Kenneth Zuk ruled that authorities weren’t following their own rules governing use of the machine. While Zuk agreed with defense lawyers that a “subject test” was done each time a person blew a breath sample into the machine, the appeals court cited the ordinary dictionary definition of “subject,” which refers to an individual person.
“It is clear there is only one ‘subject test’ per person breathalyzed, even if the test includes two incidents of blowing,” the appeals court said. “As a result, we decline to interpret the code phrase that requires dry gas control tests ‘before and after every subject test’ as requiring them ‘before and after every separate blow.’...They are nothing more than consecutive breath samples taken during the same ‘subject test.’” The issue may well find its way to the Ohio Supreme Court, but for now the courts are demonstrating a clear preference for upholding the machine.
Cuyahoga Common Pleas Court Judge Brendan J. Sheehan recently rejected a challenge to the controversial Intoxilyzer 8000 BAC testing machine, but the issue of the device’s reliability is far from settled. A much more favorable ruling for defendants came from the Painesville Municipal Court on June 1, 2012. Granting the defendant’s motion to suppress the results of the 8000 BAC test, the court found that:
The Intoxilyzer 8000 is a new device that does not appear to have been shown to be accurate and reliable in the courts in Ohio [* * *] This court finds that the State has not persuasively shown the reliability of the Intoxilyzer 8000. [* * *] Therefore, this Court finds the Intoxilyzer 8000 does not meet the standards for admission into evidence.
The Eleventh District Court of Appeals is likely to take up that case in the near future. Judges in Athens and Circleville have found the evidence supporting the machine to be lacking. As reported HERE in the Columbus Dispatch, “Judge Gary Dumm of Circleville Municipal Court ruled that test results from the Intoxilyzer 8000 will not be admitted in his court until the state can present scientific proof that the machine’s technology is sound.” This flirts with overturning the 1984 Ohio Supreme Court ruling in State v. Vega that states that breath tests in general cannot be challenged by expert testimony, Dumm said the ruling permitted him to examine whether the Intoxilyzer 8000 was “proper equipment.” In an article in the Athens News (click HERE), the newspaper outlines the 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.” As of yet, no Ohio appeals court has ruled on the general reliability of the Intoxilyzer 8000. Until those rulings come down, the admissibility of the 8000 is likely to be challenged in trial courts across the state. As I have written in other articles on the Intoxilyzer 8000, being pro-law enforcement should not ever mean we give them a pass, but that we hold them to such a standard that even in the most difficult case we trust the system. The maxim that 10 guilty should go free rather than one innocent be punished express the highest esteem for law enforcement and for our system. Allowing junk science in DUI cases has an opposite and corrosive effect.
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.
- Problems with the Intoxilyzer 8000 (daytondui.com)
- Calibration of the Intoxilyzer 8000, O.A.C. 3701-53-04 (daytondui.com)
- Arrested for OVI in Vandalia? (daytondui.com)
- OVI in the Franklin Municipal Court (Warren County) (daytondui.com)
- Ohio DUI Law: How To Fight A Urine Test (daytondui.com)
- Ohio OVI Law: Ignition Interlock Devices FAQ (daytondui.com)
- Should I Blow? (daytondui.com)
- Minn. High Court Says Intoxilyzer is Reliable (kstp.com)