When you are accused of a DUI/OVI in Ohio, the breath test machine is presumed to be perfect. What is more, your attorney cannot challenge scientifically provable flaws in the machine or the weakness in the science supporting the machine. Such challenges are limited by a 1984 Ohio Supreme Court ruling (State v. Vega) holding that once the Ohio Department of Health certifies a machine, it becomes valid and the defendant loses the ability to argue defenses based on the underlying science of the machine. This author has made it a long-standing goal to fight this case and has done so for over 15 years.
This ruling has been questioned recently due to the adoption of a faulty machine (Intoxilyzer 8000) that has been found unreliable in other states. However, it appears that the Courts of Appeal hearing these cases are sticking by the Vega decision. The 11th District Court of Appeals reversed and remanded six Intoxilyzer 8000 cases this week – five in Portage County and one in Lake County. In each case, the state appealed judgments of the lower court’s decision granting a defendant’s motion to suppress results of the controversial breathalyzer. At issue is whether the state has the burden at a suppression hearing to establish the general scientific reliability of the breath test machine without any specific challenge to the conduct of the subject test. The following case summary appears HERE.
In State v. Johnson (Case No. 2012-P-008), the appellee was stopped by the Ohio Highway Patrol for speeding. According to case summary details, the trooper noticed a strong odor of alcohol and did a breath test with the Intoxilyzer. The result of the breath test was a blood-alcohol content of .103. The trial court granted the motion to suppress after the state did not present any witnesses at a December 2011 hearing, and issued this ruling: “To simply admit the breath test results from the Intoxilyzer 8000, as the State would want the Court to do, without any hearing to determine the general scientific reliability and admissibility of the breath test results from this machine, and then to argue that the defense cannot challenge the test results at trial pursuant to Vega is in this Court’s opinion a violation of the defendant’s due process rights. The position the State of Ohio is taking in this case by not calling any witnesses at the suppression hearing is not fair and just.” (Emphasis added)
The state appealed on one assignment of error, claiming the trial court should not have allowed “a general attack on the scientific reliability of the Intoxilyzer 8000 contrary to Ohio statutes and well-established case law.” In Vega, the question was “whether an accused may use expert testimony to attack the general reliability of intoxilyzers as valid, reliable breath testing machines in view of the fact that the General Assembly has legislatively provided for the admission of such tests in R.C. 4511.19 if analyzed in accordance with methods approved by the Director of Health. In a 4-3 decision, the Court held, `an accused is not denied his constitutional right to present a defense nor is the state relieved of its burden of proving guilt beyond a reasonable doubt where a trial judge does not permit expert testimony to attack the reliability of intoxilyzers in general.’ ”
According to 11th District Judge Timothy P. Cannon’s 2-1 opinion, Johnson did not present any specific challenge to the Intoxilyzer 8000’s reliability. In addition, Cannon said the Ohio Supreme Court and federal courts have significantly revised their approach regarding admitting scientific testing and testimony since the Vega decision. “The legislature has allowed the director of the department of health to determine that the Intoxilyzer 8000 is generally reliable,” Cannon stated, adding that the burden is on the defendant to come forward with evidence overcoming that presumption.
11th District Judge Thomas R. Wright dissented, arguing the trial court has discretion regarding admissibility. “The trial court was aware that other courts had deemed the Intoxilyzer 8000 unreliable even thought it was approved,” according to Wright’s dissenting opinion. “Against the backdrop, the court ordered the state to establish the general reliability of the intoxilyzer 8000 before admitting the results. Given the constitutional gravity of admitting unreliable results, however, and its statutory authority to act as gatekeeper regarding breath test results, the lower court’s decision to require the state to produce evidence of the machine’s reliability was an eminently reasonable and sound legal decision.”
11th District Judge Diane V. Grendell concurred in judgment only, writing a separate opinion that she disagrees a trial court has “exclusive” power to make decisions about evidence. The other similar decisions are cited: State v. Collazo, No. 2012-L-067, State v. Funk, No. 2012-P-0071, State v. Harmon, No. 2012-P-0067, State v. Hatcher, No. 2012-P-0077 and State v. Schrock, No. 2012-P-0022.
A similar result was reached in Ohio’s 12th District Court of Appeals. The Twelfth District Court of Appeals has found that breath alcohol content results from a West Chester traffic stop should not have been suppressed by the trial court because the proper procedures in administering the test were followed. Accordingly, the appeals court reversed the decision by the Butler County Area Court III and remanded the case. The case summary can be found on the Supreme Court News HERE.
Retired Judge William W. Young, sitting by assignment, authored the unanimous decision and discussed the admissibility of Intoxilyzer 8000 test results in light of the Ohio Supreme Court’s 1984 decision inState v. Vega. “This district and others have universally recognized that Vega prohibits a general attack on the reliability of breath testing instruments,” Judge Young wrote. “Additionally, some appellate courts have interpretedVega and subsequent Ohio Supreme Court cases to prohibit suppression of BAC test results based on any argument regarding the reliability of a breath testing instrument. Instead, the admission of BAC test results turns on substantial compliance with ODH (Ohio Department of Health) regulations.”
Judge Young wrote that the state met its “slight burden” by uploading Intoxilyzer 8000 records to the Ohio Department of Health website and that the state established that it substantially complied with other regulations by performing a “dry gas control” before and after Dugan’s breath test, not each individual blow into the device. Judges Stephen W. Powell and Robert P. Ringland concurred in the February 11 opinion. Concurring separately, Judge Ringland urged the Supreme Court to revisit the Vega case because “courts have struggled with the interpretation of Vega” and that several “events signal a need for the Ohio Supreme Court to resolve these issues and confusion.”
State v. Dugan, 2013-Ohio-447
Opinion: http://www.sc.ohio.gov/rod/docs/pdf/12/2013/2013-ohio-447.pdf
Criminal Appeal From: Bulter County Area Court III
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry on Appeal: February 11, 2013
So, What Are The Problems With The Breath Test Machine?
The Intoxilyzer 8000, manufactured by CMI (out of Kentucky) has been plagued with software problems in other states. Software problems that affect the accuracy of Intoxilyzer 8000 breath test results have been acknowledged in lawsuits in both Florida and Arizona. CMI has taken the stance that it will not release the “guts” of how its machine works and CMI’s refusal to release the source code for review has led to issues in Minnesota and Florida. Studies conducted in Tennessee deemed the device too inaccurate to be used for the prosecution of DUI offenses in that state. The Ohio Department of Health claims not to have the source code and does not know the patent number of the Intoxilyzer 8000. You would think that Ohio would have independently reviewed the source code and thoroughly checked this machine out prior to putting citizens in jeopardy of a false arrest, but that appears not to have been the case. Obtaining the source code and subjecting it to independent testing would allow disinterested third parties to check the science before innocent people were arrested and jailed. The people charged with protecting us are failing!
Additional problems have been caused by stumbles in early judicial tests of the Intoxilzyer 8000. These testimonial blunders are indicative of a machine which has not been tested and was thrown into courts with an arrogant assumption that the judges and prosecutors will “trust” an unknown entity with an incredible financial incentive. ODH has been unable to provide information about who made the decision to purchase the machine and who was on the review committee. Did the people responsible for review recognize problems with the machine? Did they recommend purchasing the machine? Will the prosecutors and judges afford this unwarranted trust? What’s more, the person who forced Ohio to purchase these machines is now working for CMI, the company that manufactures them. It is very shady that the individual that masterminded the contract with CMI would be permitted to go work for that company approximately 13 months after he left his employment with Ohio.
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.”
The Cover-Up Is Worse Than The Crime
One of the proposed benefits of the adoption of the Intoxilyzer 8000 was to be the consolidation of breath test records in one place. Previously, breath test records were maintained by the individual police departments. Implementation and maintenance of the Intoxilyzer 8000 is the responsibility of the Ohio Department of Health and specifically the ODH’s Bureau of Alcohol and Drug Testing. The Ohio Department of Health has started a web site containing all information about breath tests in the state, called the Breath Instrument Data Center. [HERE] Records were to be available on-line and subject to review as public records making the entire process of reviewing a case easier.
Problems and allegations of wrongdoing surfaced almost immediately. When the new machines gave some impossible results (10.00 and 23.00), the records disappeared. Why? If defense attorneys could point to outrageous results, the entirety of the breath testing scheme could be brought into question. No adequate reason for the disappearance of these records has yet been given. Later the ODH changed what records were accessible to the public. Why? The Intoxilzyer 8000 was recording an unusually high number of “sample attempts” on tests. Some of the tests said that over 20 “sample attempts” were made for one subject test. This anomaly could be used by defense attorneys to show problems with the machine. Instead of investigating the problem, the ODH decided to hide the report. Similar problems were presented when ODH called the subject samples “tests.” Why is this a problem? If it is a “subject test” then the tests are out of bounds according to the rules written by the Ohio Department of Health. Again, ODH took the most expedient route by changing the words “subject test” to “subject sample.”
The activity of the Ohio Department of Health, suspect from the beginning of this process, has descended to farce. People, citizens of our great country, are being convicted of crimes that contain harsh mandatory penalties while the Department of Health arbitrarily changes the rules. While ODH has not cited a legal basis upon which to premise these capricious changes, Ohio law does speak to the issue. According to Ohio law records of breath tests “shall be retained for not less than three years.” Deletion of these records, if they have been deleted forever, may also be a violation of O.R.C. 2921.12 (Tampering With Evidence) which says that no person shall “alter, destroy, conceal or remove any record or document, or thing with purpose to impair its value or availability as evidence in such a proceeding or investigation.” Would any prosecutor fail to prosecute a criminal defense attorney who purposely deleted evidence of an OVI offense? Enterprising defense attorneys may also have issues under the Brady discovery rules and Ohio Criminal Rule 16 discovery. Such activity may also give rise to the affirmative defense of “outrageous governmental conduct.” These problems will surely find themselves thrown into the laps of judges who must find a way to protect our Constitution from this bungle. How this is sorted out may well turn into one of the most important judicial issues of our time.
Problems Have Also Appeared In The Implementing Rules
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.
Problems Caused By Manipulation
“I’ll Huff and I’ll Puff and Blow Your House Down” Did you know that your breathing pattern can significantly alter the concentration of alcohol on your evidential breath test? According to scientific research, “[t]he subject’s test manner of breathing just prior to providing breath for analysis can significantly alter the concentration of alcohol in the resulting exhalation.” (Jones, 1982, Schoknecht, 1989) as cited in Physiological Aspecs of Breath-Alcohol Measurement, Alcohol Drugs & Driving Vol. 6, No. 2, A.W. Jones. Hyperventilation “…lowers the breath alcohol concentration by as much as 20% compared with a single moderate inhalation and forced exhalation used as control tests.” Id. (Jones, 1982). Whereas, “holding breath for a short time (20 seconds) before exhalation increases the alcohol concentration in exhaled air by 15%. Id. (Jones, 1982).
With Ohio’s adoption of the Intoxilyzer 8000 breath test machine, attorneys should be on the look out for these types of breathing pattern defenses. Tell your Ohio DUI lawyer if you were asked to hold your breath, blow in an unusual pattern or if the officer abruptly told you to stop blowing. Your attorney needs to know how you blew because an operator may be looking to manipulate your breath pattern to force agreement of a first blow and a second blow.
Junk Science Hurts Our System
When you hear a DUI/OVI attorney decrying “junk science” that is used in court, they are most likely referring to the fact that the air blown into the breath test machine for purposes of testing cannot be the same air that is exchanged with the deep lung alveolar sacs. It is impossible to limit the breath test to limit itself to deep lung alveolar air. The theory breaks down because:IF THE MAJORITY OF AIR BEING MEASURED HAS NOTHING TO DO WITH THE BLOOD EXCHANGE THEN THE TEST IS NOT MEASURING THE AMOUNT OF ALCOHOL IN THE BLOOD.
The machine does not and cannot discriminate in its air sample. It will measure and analyze the 1.5 liters of breath that it is given. The problems with the theory is that the breath machine has to assume a similar lung volume amongst the population. Common sense dictates that a 21 year old, 6 foot male in perfect health blowing 7 liters of air IS DIFFERENT than an 65 year old, 5 foot 2 inch woman who may only blow 1.5 liters.
The major injustice in DUI/OVI law in Ohio is that attorneys are prevented from attacking the “junk science” of breath tests machines due to the decision in State v. Vega. As amazing as it seems, Ohio has decided that if the government says the science is good enough, then attorneys cannot challenge it. Imagine if the same philosophy were used in other areas of criminal law. What if the Ohio legislature decided that eye-witnesses were inherently reliable and an attorney could not challenge them at trial. What is to stop them from saying that police officers are inherently reliable and they too are free from cross examination.
Our American values suggest that when the government accuses you of a crime you have the right (and your attorney the duty) to challenge the evidence against you. If attorneys vigorously fight, the police are trained to do a better job. Judges who hold the state to a higher standard protect the citizens from tyranny. 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 to our American values.
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights, Beavercreek, Centerville, Springboro, Franklin 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 Twitterupdates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui 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.
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