June 30, 2012 | Breath Tests
The new breath testing machine in Ohio is being routinely thrown out of court in DUI and OVI cases all over Ohio. The problem is mainly that the machine is not operating in compliance with the Ohio Administrative Code (OAC) that regulates drug an alcohol testing.
The best defenses to the Intoxilyzer 8000, Ohio’s new breath testing machine, are also the biggest problems for the prosecutor. The problems are legion.
NO DRY GAS BETWEEN SUBJECT TEST 1 AND SUBJECT TEST 2
There is a tank of gas with a known alcohol level hooked up to the machine that is used for self-calibration while the test is being performed on a suspect. Failure of the dry gas calibration will abort the test.
The OAC requires that the machine perform a dry gas control before and after each subject test. The machine was designed to perform a dry gas control only before the first subject test and after the second subject test with no dry gas after the first test and no dry gas before the second test. Is is unclear whether the machine requires two dry gas checkes between each test or is just one additional check is sufficient.
The ODH’s new program director tried to remedy this by manipulating the words on the subject test report available on the ODH website. She changed the words from “subject test 1” and “subject test 2” to “subject sample 1” and “subject sample 2.” (Note: this evidence was changed during ongoing criminal cases, it is material to the defense of a breath test on this machine, it si unique and not otherwise available by any means, and has been effectively destroyed where the ODH is unable to produce the records as they existed with the data that was once available due to claims of budget concerns despite the fact that they were able to find funds to get rid of it).
Every OVI lawyer, prosecutor, and ODH representative in Ohio will agree that the machine takes two independent breath samples from a suspect. What the ODH and prosecutors fails to see is that the samples are also still tested individually with the machine reporting two breath “test” results on the form.
This smoke and mirrors attempt to remedy a defective machine is falling short with Ohio judges hearing Intoxilyzer 8000 cases. The judges just can’t get past the plain language of the OAC that requires a dry gas control before and after “each” subject test.