Intoxilyer 8000: Costs High and Implementation Slow
In the nine months since state officials unveiled a new device hailed as a potent new weapon against drunken driving, the equipment has been used rarely and only in a few rural and suburban pockets of Ohio. A federal grant provided $7 million to buy 710 portable breath testers in December 2008 despite warnings from attorneys, local judges and some scientists that the machines were unreliable and vulnerable to legal challenges.
The Intoxilyzer 8000 made its debut in Clermont County in May. Since then, the instrument has been used just 1,116 times, in five counties that, combined, have only 3 percent of Ohio’s population. Officials could not say how many drunken-driving convictions have resulted from the use of the instrument. Priced at about $9,000 each, the Intoxilyzer 8000 is supposed to be a big step forward in efforts by police to take drunken drivers off the road. Old breath testers require police to transport suspects back to a station to blow into a machine for a reading. The Intoxilyzer travels in police cars and can be used in the field. That allows officers to test a large number of suspects much more quickly than before.
The state Departments of Health and Public Safety say they’re being methodical in introducing the breath tester and targeting areas that need it most. But defense lawyers say another strategy appears to be at work: avoiding legal challenges by quietly rolling out the device in rural areas. “The defense bar is not going to flock to remote counties merely to wage a war on these machines in a venue orchestrated by the (Ohio Department of Health),” said Tim Huey, DUI chairman for the Ohio Association of Criminal Defense Lawyers. “That would be stupid. When the machines come to us, we will challenge them.” Defense lawyers say the Intoxilyzer machines are subject to errors based on environmental factors including heat and cold, as well as variables such as the length of time a suspect blows into the device. Some officers might encourage suspects to blow longer to obtain a positive reading, the lawyers say.
Ohio Department of Public Safety spokeswoman Lindsay Komlanc said she’s aware of only one court challenge to the Intoxilyzer, although she said there could be others. Defense attorneys could name four cases. In the one confirmed challenge, a 20-year-old Fairfield woman is contesting her May 2009 drunken-driving citation based on Intoxilyzer results. Lawyers in several other states have been able to get thousands of convictions thrown out based on the refusal of the Intoxilyzer manufacturer, CMI Inc. of Kentucky, to turn over details of the machine’s operations.
But Fairfield driver Lindsey Fintak and other Ohio drunken-driving suspects apparently won’t be able to challenge Intoxilyzer results on that basis. A 1984 Ohio Supreme Court decision barred defendants from attacking the reliability of breath testers once they’ve been certified for use by the state Health Department. “Anytime you get anywhere close to challenging the validity of the machine, you get rejected — bad,” said Matthew T. Ernst, Fintak’s attorney. “A lot of the time, our challenges are not as full-blown as we could like because of the (1984) ruling.”
Some DUI lawyers say the Intoxilyzer might reopen the possibility of questioning the machines themselves, but others say it’s probably a lost cause. Meanwhile, the state Department of Public Safety continues to put more of the instruments in the field, albeit slowly. Just 17 of the 710 Intoxilyzers purchased have been put to use. “We are concentrating on areas most in need for this type of equipment — smaller counties that may only have one instrument for the entire county, those that have been hit especially hard by budget constraints and have equipment that was previously in disrepair,” Komlanc said. “We will continue to move forward with the rollout systematically, concentrating on where the need is the greatest as well as where we can get schedules accommodated for training.” Defense attorneys say they’re ready to pounce.
“Our biggest problem right now is that you can get such a varied result depending on how you use the machine,” said Rob Calesaric, a Newark defense lawyer. “The problem with that type of testing is that it’s not that scientific. The more secretive they are, the more suspicious it makes us.”