Me neither. So this is interesting. I recently had an OVI case North of Dayton. For my readers, you know an OVI is the same as a DUI. And you also know that I tend to travel a bit all over Southwest Ohio including the Cincinnati area fighting DUI cases.

I plan to also start working in Northern Kentucky defending DUI and OVI cases.  On this particular case, I did my usual thing requesting the evidence. This was a breath test case and along with the regular police reports and paperwork came something unexpected. I received two pages with graphs on them titled Breath Profile.

The New Intoxilyzer Graphs

After doing a double-take I looked closer. It matched up with my client’s Subject Test Result page. That is the form that prints out of the machine that we are all familiar with showing the test result among other things.

These graphs; however, revealed some new information I have never seen before. They revealed the BrAC or Breath Alcohol in grams/210 liters of breath on the left column, Time in seconds across the bottom, and Flow Rate in liters/second.

Now I asked a few colleagues about this and confirmed that they have not seen it before either. My colleagues responded with assurances that I could not be seeing this from an Intoxilyzer 8000 or I-8000 breath test machine. Some said that I might be looking at the Intoxilyzer 9000.

One even went so far as to speculate that I made it up and that it looked like I copied something from a manual somewhere. Now, in their defense, the pictures I posted were exactly as I had received them… they were in the negative.

This also helped to draw my attention to them in the first place. I eventually got the prosecutor to send me the regular versions. I knew they existed when I called the prosecutor because I had watched it print out of the stand-alone printer next to the machine when I watched the officer’s body cam video.

The video I have clearly shows the front of the machine and it says “Intoxilyzer 8000.” Not finding any more info from my colleagues in Ohio I reached out to the Ohio Department of Health Alcohol and Drug Testing Division (ODH) that maintains the records for more info.

Software Updates for the Intoxilyzer 8000

The ODH replied by sending me a few pages listing all the software updates for the machine. It was called the Ohio Software Set 8149.xx. The first version was dated (3/27/09) and titled 8149.07.00. The most recent update was on (09/29/2011) titled 8149.11.00.

Everyone that has been following the 8000 cases in Ohio remembers the update titled 8149.11.00 (09/29/2011) that changed “Subject Test” to “Subject Sample.” The most notable of the updates I found was on (9/27/2010) titled 8149.09.00 that reads in part: “-Add profiling feature (alcohol and flow curves) for breath tests, air blanks, and cal checks.”

The practical application for this is that all machines in Ohio should be running this software. I confirmed this by asking for all software updates for all the I-8000 machines in Ohio. They replied to me with the same software update paper. Since all the machines in Ohio are supposedly running the same software they should all be printing graphs. They are not.

I spoke to a buddy at the Highway Patrol and he said that all the machines he used only print from the machine itself and do not use a standalone printer. These machines were built to be completely portable remember?

Since all the machines are running the same software they should all be collecting the data necessary to complete the graphs. That means that the state is collecting evidence that is not being given to the defendants in Ohio in discovery.

The Implications

Without a doubt all the machines in Ohio are capable of collecting the data and producing graphs. Why they are not all producing graphs is a mystery. I spoke to a lady that used to work at the ODH and she was aware of the graphing machine I was talking about and claims that was another one in the same area that was producing graphs. She claims the IT technician at the ODH told her that they were not collecting the data in the big offsite ODH database.

It makes no sense that the state would update the machines purposefully to collect data with no intention of storing it for analysis offsite or printing it out. They will also produce the database and its schema that lists all the info the database stores. I would also find it hard to believe that they would add a feature to all the machines in Ohio without being able to produce the graphs from the database.

If you have an I-8000 test in evidence make sure that you or your lawyer request that the evidence including breath test graphs and data be preserved. If they refuse to produce or fail to preserve it there is grounds for suppression of the breath test. My understanding is that the machines are collecting data and storing it internally for up to 4 weeks before it is transmitted to the ODH or overwritten.

To learn more, call our Dayton criminal defense  law firm at (937) 531-0435 or visit our contact us page to send us an email.