Appeals Court ruled Intoxilyzer 8000 breath testing machines can't be challenged on accuracy grounds.

The Ohio Court of Appeals overturned a lower court ruling to defend the principle that the accuracy of breath testing machines is presumed to be perfectly accurate. Under state statutes, the reading of the machine determines guilt, and the burden is on the defendant to prove otherwise.

The decision was a blow to Justin C. Miller who had been pulled over for speeding on November 24, 2011 and subsequently arrested for driving under the influence of alcohol (DUI). At trial in April, Miller's attorney demanded that the state prove its Intoxilyzer 8000 breath testing machine was reliable. Prosecutors cited the 1984 court decision Ohio v. Vega saying any challenge to the scientific validity of the machine was automatically invalid. A Portage County Municipal Court judge believed this was insufficient and refused to admit the breath test evidence. The state appealed.

Miller's attorney insisted this appeal violated proper court procedures in which only final orders could be challenged in a higher court. The judge had granted a motion in limine, which is a tentative, pre-trial ruling that prevents a lawyer from bringing highly prejudicial and disputed evidence before a jury. The appellate majority believed the label was irrelevant.

"We disagree," Judge Diane V. Grendell wrote for the court. "The municipal court's ruling in the present case was not a tentative or precautionary ruling, but determined that 'the defendant's breath test shall not be admitted during the trial.' Any doubt as to the finality of this ruling is removed by the court's dismissal of the charge of operating a vehicle with a prohibited breath alcohol concentration."

If the state can prove its employees followed the regulations on the books, its job was done. Attacks could then not be used to suppress the evidence. Instead, any proof of unreliability would have far less impact and could only be considered as a factor in the weight of the evidence.

"In subsequent decisions, the Ohio Supreme Court reaffirmed its holding in Vega," Grendell wrote. "The court has emphasized that, when regulations are promulgated pursuant to R.C. 4511.19 and 3701.143, it must be presumed that the Director of Health acted upon adequate investigation and that the courts 'must defer to the department's authority and not substitute our judgment for that of the Director of Health.'"

The three-judge panel remanded the case to the lower court instructing it to accept the Intoxilyzer 8000 as reliable but to respond to the specific challenges raised by Miller.

"Because the instrument is presumed to be a reliable breath testing instrument, appellee had the burden to produce evidence that the Intoxilyzer is not reliable," Judge Cynthia Westcott Rice wrote in a concurring opinion. "I write separately to acknowledge that it is the defendant's, not the state's, burden to go forward, once the presumption of reliability has been triggered."
http://thenewspaper.com/news/39/3975.asp

Ohio v. Miller ruling: http://thenewspaper.com/rlc/docs/2012/oh-breathtest.pdf


Faulty “Intoxilyzer 8000” breath testing equipment in Washington, DC. 

Whistleblower Ilmar Paegle, a veteran police officer now working as a contract employee for the District Department of Transportation, argued in a memorandum to the city’s attorney general that the breath testing machines have not been properly calibrated since 2000.

To date, the District has only admitted to bogus breathalyzer results taken between September 2008 and February 4, 2010. Of 1100 cases prosecuted in that period, 300 were convicted based on evidence provided by faulty machines.

“As a result of the miscalibration the instruments apparently produced results that were outside the acceptable margin of error to be considered accurate,” Deputy DC Attorney General Robert J. Hildum wrote in a June 4 letter to DC trial lawyers. “OAG [office of the attorney general] is in the process of notifying the defendants and their counsel in those cases.”

Paegle’s discovery that the breathalyzers producing bogus results forced the Metropolitan Police Department to stop using the machines on February 4 and switch to Intoximeters. Hildum blamed the problems on Officer Kelvin King who began replacing motors in the breathalyzers in September 2008 as part of routine maintenance. Under DC law, the machines must be tested for accuracy every three months, but the District failed to codify procedures or standards for this testing. Paegle was concerned that the District has never performed these accuracy tests, raising concern among legal experts.

“You too could have been pulled over on the basis of a minor traffic violation and put through a series of difficult and humiliating field sobriety tests,” DC-based defense attorney Jamison Koehler wrote on his law firm’s blog. “After blowing into the breath test machine, you could have spent the night in a jail cell with other people who were drunk, angry, disorderly, mentally ill or whose sweating, panting and retching signaled to you that they going through drug withdrawal. You could have had to shell out thousands of dollars to hire a lawyer and missed work on so many occasions to attend court hearings that your employer warned you might be fired…. On the basis of the faulty breath test results, you too have been convicted of driving while intoxicated even with blood alcohol levels far below the legal limit.”
http://www.thetruthaboutcars.com/2010/12/dc-bogus-breathalyzer-results-may-go-back-a-decade/


Here's a copy of the OAG memo in a PDF.
 http://thenewspaper.com/rlc/docs/2010/dc-baddui.pdf

Intoxilyzer 8000 found to be inaccurate, unreliable:

http://www.wkyc.com/news/investigative/article/254417/230/Investigator-Breathalyzer-found-to-be-inaccurate-unreliable

The inconvenient truth about the intoxilyzer 8000.
http://www.888oviohio.com/pdf/the_intoxilyzer_8000.pdf