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CHALLENGE TO INTOXILYZER 8000 REJECTED IN CUYAHOGA COUNTY, BUT ISSUE IS FAR FROM SETTLED

Cuyahoga Common Pleas Court Judge Brendan J. Sheehan recently rejected a challenge to the controversial Intoxilyzer 8000 BAC testing machine, but the issue of the device’s reliability is far from settled. Trial court judges from across the state have expressed concerns over the 8000’s operation, and the Twelfth District Court of Appeals is set to rule on its reliability any day now.

Under State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984), defendants are precluded from generally challenging the reliability of breath alcohol instruments. In State v. Welch, Judge Sheehan noted that the legislature “delegated examination of the validity and reliability” of widely used BAC testing equipment to the Director of Health, and that – so far – the Director’s “decision to adopt the Intoxilyzer 8000 and to promulgate regulations for its use have not been challenged successfully.”

The defendant in Welch contended that the 8000 was unreliable because its method of measurement could erroneously record higher alcohol content for individuals with gastric reflux disorders. Welch also argued that the 8000 was unreliable “because there have been periodic improvements to the operating software and a new version” of the 8000 is scheduled for release.

Welch offered the testimony of Dr. Staubus, an expert familiar with the inner workings of the Intoxilyzer 8000. However, the court found that the expert witness offered only anecdotal evidence regarding the potential problems with the 8000, which did not “qualify as scientific procedures, tests, or experiments admissible under Evid. R. 702. [* * *] Therefore, even if Dr. Staubus’ testimony could be used to challenge the general reliability of the Intoxilyzer 8000 in contravention of Vega, the proffered evidence fails to qualify as a scientific study sufficient to do so.”

The court left open the possibility that a defense expert who offers scientific evidence admissible under Evid.R. 702 that the 8000 is unreliable may succeed in challenging the device.

A much more favorable ruling for defendants came from the Painesville Municipal Court on June 1, 2012. Granting the defendant’s motion to suppress the results of the 8000 BAC test, the court found that:

The Intoxilyzer 8000 is a new device that does not appear to have been shown to be accurate and reliable in the courts in Ohio [* * *] This court finds that the State has not persuasively shown the reliability of the Intoxilyzer 8000. [* * *] Therefore, this Court finds the Intoxilyzer 8000 does not meet the standards for admission into evidence.

The Eleventh District Court of Appeals is likely to take up that case in the near future. As of yet, no Ohio appeals court has ruled on the general reliability of the Intoxilyzer 8000. Until those rulings come down, the admissibility of the 8000 is likely to be challenged in trial courts across the state.

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