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The state of Ohio has purchased 700 new Intoxilyzer 8000 machines designed to measure breath alcohol levels. The machines cost $6.4 million, with a grant from the federal government footing the bill. The Intoxilyzer 8000 has begun to be used in a few counties and is expected to be rolled out statewide by fall 2009.

The Purpose of the Machine

The Intoxilyzer 8000 is a portable machine that is designed to measure breath alcohol levels. It uses infrared spectrometry to detect and measure breath alcohol. When someone blows into the machine, the presence of breath alcohol reduces the amount of the infrared light that reaches the detector. The reduction in infrared light that reaches the detector is computed by the source code into a breath alcohol level.

In Ohio, drivers are not permitted to have more than .08 grams of alcohol per 210 liters of breath — corresponding to a blood alcohol level of .08. Drivers who exceed this level are considered to be operating a vehicle while intoxicated (OVI). Penalties can range from a 90 day administrative license suspension (ALS), three days in jail, and a $250 fine, to five years ALS, one year in jail and a fine of up to $10,000. There may also be a permanent revocation of the driver’s license or a requirement that the driver’s vehicle be permanently forfeited.

Problems with the Intoxilyzer?

In any breath test, two different sets of problems can arise. Possible issues could involve operator error —lack of sufficient waiting period (20 minutes); not a deep enough breath; test not done within required time (3 hours), etc. Tests can also fail because of problems with the machine, potentially including interfering substances, radio frequency interference, or improper calibration.

Both the Intoxilyzer 8000 and an earlier version, the Intoxilyzer 5000, have faced a number of legal challenges in other states. Tennessee, after testing the Intoxilyzer 8000 extensively, chose not to use it. Florida, Arizona, Louisiana and Minnesota have all had lawsuits involving the Intoxilyzer. Florida started using the Intoxilyzer 8000 in 2002 and had problems initially because people being tested did not blow enough air into the machine and the machine failed to register the lack of sufficient volume. The problem was subsequently fixed.

In all these cases in other states, they have requested that CMI, the company that makes the Intoxilyzer, produce the source code. Defendants have argued that without access to the source code, it is not possible to determine whether the Intoxilyzer is operating correctly. CMI has resisted producing the source code because they contend it is a trade secret.

In states where these lawsuits have been filed they have threatened other OVI or DUI (driving under the influence of alcohol) cases. In Minnesota, while a lawsuit was pending, some counties reverted to blood tests requiring police officers to bring suspected drunk drivers to the hospital for the procedure. These lawsuits can be a huge drain on resources and prevent the police and courts from doing their work effectively and efficiently.

Ohio may be less likely than other states to face lawsuits challenging the Intoxilyzer 8000. The 1984 case of State v. Vega — in which the Ohio Supreme Court held that a defendant in an OVI case may not attack the reliability and validity of breath taking instruments — still applies. The court deferred to the legislative branch and their grant of authority to the Director of Health to approve breath taking devices. Critics argue that this decision was unconstitutional because it hampers the defendants ability to present a complete defense and point to the fact that most other jurisdictions do allow evidence on the reliability of blood alcohol or breath testing machines.

Conclusion

Despite the difficulties in raising the issue of the reliability of the Intoxilyzer 8000 in Ohio, based on the track record of the device in other states there are bound to be legal challenges. If you are facing an OVI conviction based on an Intoxilyzer 8000 test result, it is important that you contact an attorney with experience in this area. The law dealing with OVI is complex, and the use of these machines only complicates the issue.

Originally published here.

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Rittgers & Rittgers

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