Court Says: Intoxilyzer 8000 Vulnerable.

If you haven’t heard, the Ohio Department of Health approved the Intoxilyzer 8000 and the state of Ohio then purchased 700 of the instruments.  Now it seems maybe the state should have waited for an analysis as was done by the Athens County Municipal Court in State v. Gerome, Trial Court Case Number 11TRC01909.  Therein the trial court heard arguments in four consolidated OVI cases which involved the use of the new – some say untested – Intoxilyzer 8000.  

After an extensive evidentiary hearing including multiple expert witnesses for both the prosecution and the state, the court concluded that “The Intoxilyzer 8000 has vulnerabilities.  With specific fact situations, defense expert testimony is admissible to explain such relevant vulnerability.”  This is significant as the trial court had to have a meaningful understanding of the Ohio Supreme Court’s decision in State v. Vega; and thereafter demonstrate the very real distinction.  In Vega, the Ohio Supreme Court held, in general terms, that a defendant cannot challenge the general principles that underlie breath testing instruments.  This created a very real problem for those charged with a DUI/OVI offense in Ohio in that Ohio also had per se DUI/OVI violations which makes a high testing reading alone a criminal violation.  

With the introduction of the Intoxilyzer 8000, the real problem with Vega was immediately apparent.  The prosecution would rely on the Vega opinion to argue that the defense was not permitted to challenge the new instrument.  The Athens County Trial Judge thought different and allowed the pre-trial evidentiary hearing on the machine.

Thankfully he did.  After a full evidentiary hearing with experts witnesses for both the prosecution and the defense, the trial court specifically found that “[d]efendant has presented evidence of several vulnerabilities [of the Intoxilyzer 800] and the Court understands and accepts two and possibly three as material to admissibility and to guilt.”   In short, the Court found:

1.       That the machine remained vulnerable to radio frequency interference which is a danger even more prevalent now than it was when the breath technology came into common use.

2.       That the machine allows the operator to manipulate the breath sample which is a danger in that “the longer you blow, the higher your score.”  The court cited an example that “on average, a shorter duration sample could show a 0.68 and a longer duration sample could show a 0.85 with the same alcohol content.”

3.       The machine has a reduced capacity to detect a sample that includes moisture.  This is critical in that the theory with the technology is that it tests “deep lung air rather than air from the mouth or other moist tissues that would include liquid ethanol at a higher concentration than breath.”

The trial court’s decision is just that, namely a trial court decision in one municipal court in the entire state of Ohio.   But the court’s analysis was remarkable, especially as it was based on an evidentiary hearing which included highly regarded expert witnesses on both sides of the matter.  It’s value as persuasive authority cannot be ignored.