Intoxilyzer 8000 Is Unreliable Judge Finds
A judge recently ruled the Intoxilyzer 8000 (Ohio’s newest breath testing machine) unreliable. In State of Ohio v Chelsea Lancaster, Judge Teresa Liston who heard several cases, combined for purposes of challenging the device, at the request of Marietta Municipal Court Judge Janet Dyar Welch was assigned to hear just these Intoxilyzer 8000 cases. Judge Liston is a retired judge who serves on the faculty of the National and Ohio Judicial Colleges and Capital University Law School. She is well known and highly respected by her colleagues throughout the state. See HERE.
The cases addressed the court’s gatekeeper function as it relates to the Intoxilyzer 8000. In other cases, the courts have relied upon a 1984 Supreme Court decision in State v. Vega to argue that the court serves no gatekeeper function. They argue that once the Ohio Department of Health gives its imprimatur to the machine, it is ipso facto approved. Here, in landmark fashion the court rejected this argument. As quoted in the Ohio Association of Criminal Defense lawyers article,
A good portion of Judge Liston’s opinion deals with this issue and concludes that the “traditional view” of Vega is at odds with the actual decision. For this reason, Liston says courts have had trouble applying Vega logically and consistently and have had similar difficulty squaring it with cases rendered by the Ohio and US Supreme Courts, such as the landmark case of Daubert v Merrill Dow, which hold that courts must act as “gatekeepers.” Ultimately, in Lancaster, Judge Liston adopted a much more limited interpretation of Vega, which, not coincidentally, is very much in line with the recent holdings in the Intoxilyzer 8000 cases decided by the Ohio Eleventh Appellate District -where almost all the I-8000 appellate litigation has occurred.
The multi-day hearing was an opportunity for the State and defense bar (as represented by Tim Huey and Shawn Dominy) to bring out all of their best evidence and best experts. The “evidence established that there were, among other things, problems with radio frequency interference (RFI) affecting the tests; a design flaw that invites officer manipulation and/or defeats the purpose of requiring two tests to agree with a set range and; the devices inability to adequately ensure that alcohol from the mouth, esophagus and other non-lung sources or other substances in the blood / breath won’t be read as alcohol. These were deficiencies cited by the court in barring the results. Id at OACDL.
What makes this case different, is that in previous Intoxilyzer 8000 cases, the courts have held that the machine carries a “presumption of reliability” that requires little of the state. Here, the Judge properly shifted the burden to the defense who was able to attack the reliability of the machine rather than the issue of whether or not the State met its burden. As the OACDL article (see above) states,
In the previous successful Intoxilyzer 8000 “reliability” challenges trial courts have put the burden on the prosecution to show the device is reliable. In those cases the prosecution generally failed to meet this burden and often refused to try; opting, instead, to appeal the trial court rulings. Generally, the two Ohio appellate panels that have heard these appeals have tended to hold that there is a “presumption of reliability” when the state chooses a breath test device.[vii] However, these appellate decisions have ruled that trial courts can still act as “scientific gatekeepers” but held the burden should be placed on the defense to establish that a particular device is unreliable.
Judge Liston observed that “the essential role of the judiciary is not to facilitate ‘slam dunk’ prosecutions” but is to “see that substantial justice is done.” For all of Ohio’s citizens who face a loss of their freedom at the hands of an unreliable machine, we hope that Ohio’s higher courts will adopt the approach set forth here. Hearty congratulations to all of the attorneys and experts who have taken on this injustice.
Ohio OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI defense.”
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