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TWELFTH DISTRICT COURT OF APPEALS HANDS STATE A VICTORY IN ADMISSION OF INTOXILYZER 8000 RESULTS, BUT MORE CHALLENGES ARE CERTAIN TO FOLLOW

In a unanimous opinion published yesterday, the Twelfth District Court of Appeals sided with the state and ruled that the results of a blood alcohol test performed by an Intoxilyzer 8000 may be admitted at trial against the defendant. In State v. Kormos, the Court reversed a municipal court’s decision last year that held that the test was not performed properly, and therefore the results could not be admitted at trial because police did not follow rules propagated by the Ohio Department of Health.

At issue was the interpretation of the word “subject” in section 3701-53-04(B) of the Ohio Administrative Code, which governs the operation of BAC testing machines. The section mandates that all machines “shall automatically perform a dry gas control test before and after every subject test.” The trial court held that “subject” referred to each breath sample, while the state argued that “subject” referred to each defendant. Because the 8000 takes two breath samples from each individual, the trial court’s finding would require “dry gas control tests before and after ‘Subject Test 1,’ and again before and after ‘Subject Test 2,’ for a total of four dry gas tests per person breathalyzed.” Because the police did not perform four dry gas tests for the defendant’s test, the trial court threw out the results.

Needless to say, the Twelfth District has a different definition of the word “subject.”  Looking to Webster’s Dictionary, the Court found “subject” to mean “one that is placed under the authority, dominion, control, or influence of someone or something * * * an individual whose reactions or responses are studied * * *.” According to the Court, because the “subject” is the person being tested and not the breath sample, the police operating the 8000 were only required to perform half as many dry gas tests as the trial court believed, meaning they had actually been in full compliance with the Administrative Code.

While the decision in Kormos is obviously a win for the state, the war over the Intoxilyzer 8000 is not over. Just as in the recent Cuyahoga County case that admitted test results done on the 8000, the Kormos decision did not address the general reliability of the 8000. That issue is likely to be decided as early as this year, when the Eleventh District is likely to examine a Painesville Municipal Court’s ruling 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.”

Until more appellate courts take up these cases and hand down their rulings, the issues surrounding the reliability of the 8000 and the admissibility of its results are far from settled and are ripe for challenge.

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