Ohio to Purchase Intoxilyzer 8000
COLUMBUS — State officials on Monday agreed to spend $6.4 million on a controversial brand of portable breathalyzer machines that have resulted in hundreds of drunken driving cases across the country being dropped.
In fact, the president of the company that makes the Intoxilyzer 8000, faces a contempt hearing next week in Arizona for not complying with a judges order to reveal the machines software to prove whether it produces reliable blood-alcohol readings.
The company, CMI Inc. of Owensboro, Ky., has racked up more than $2 million in fines — and counting — in Florida where CMI is being punished each day until it follows a court order to produce the machines source code so that defense attorneys can challenge drunk driving arrests. Thousands of cases have been held up.
Attorneys argue they can’t defend their clients until they know exactly how the machine computes its results.
Similar litigation is pending in Minnesota. Other states, including Louisiana, Massachusetts and New Jersey, also have sued the company or stopped using their products because of questions of whether the machines are accurate.
Expect Ohio to be next.
“Absolutely,” said Columbus defense attorney Jon Saia, who believes the machine skews results. “These are much easier machines to defend against because they’re flawed.”
But Toby Hall, CMI’s president, said he has offered those other state’s a peek at his machines proprietary information if they abide by his disclosure agreement.
“We do have procedures for obtaining the source code, so the source code is available,” Hall said. “We have the procedures in place and they [states] have asked for it in certain other ways. And, yes, they haven’t followed through.”
Hall insisted that the Intoxilyzer 8000, which is being used in about 10 states, is reliable. CMI also makes an older model, the Intoxilyzer 5000.
Opponents say the 8000 machines can be manipulated to deliver several different readings within minutes, all based on how hard or how frequently a person is asked to blow into it. Also, the machines don’t permanently record the data.
“The machine just has a greater range of acceptable standards, it’s more loosey-goosey basically,” said Ohio State University emeritus professor Alfred E. Staubus, an expert on alcohol-breath machines.
Staubus said he owns two Intoxilyzer 8000s. In a controlled test after consuming alcohol himself, Staubus said he received four different readings — two above Ohio’s .08 drunk driving limit and two below — within minutes.
Yet, on Monday, the state Controlling Board approved without question a joint request by the Ohio Department of Health and Ohio Department of Public Safety to waive competitive bidding and buy 700 of the alcohol-breath test machines from CMI.
Spokesmen from both the requesting state agencies point out that the money is coming from a federal grant. And while many of the machines will go to the Ohio Highway Patrol, some will go to local police who won’t pay a dime.
“We’re able to go in and in one shot use federal funds to replace every single breathalyzer piece of equipment that we have statewide and bring about a uniform machine and uniform standard statewide,” said Tom Hunter, spokesman for the Public Safety department.
State officials did not seem concerned about CMI’s track record elsewhere.
“I think at this point we feel strongly that a product has been selected that we as a state feel comfortable with,” said Hunter, who later added that his agency’s attorneys may still need to review CMI lawsuits pending in other states.
Bret Atkins, of the health department, points out that a drunk driving task force which first convened under former Gov. Bob Taft in 2005 had recommended CMI’s machine because it was portable and easier for police to use than other stationary devices.
Atkins also said the task force wrote certain specifications Ohio’s new blood-alcohol machines should have and out of 17 possible manufacturers suggested by the federal government only CMI met those criteria.
John Fusco, president of National Patent, a Mansfield-based company that manufactures about 90 percent of the breathalyzer machines currently in use by police in Ohio said the new specifications seemed to be drawn to fit CMI’s machine.
“We were involved initially in [bidding] but we simply didn’t have an instrument that mirrors those specific specifications,” said Fusco, who in the 1980s worked for CMI. He wondered why Ohio would broker such a deal with an out-of-state company so wrapped in litigation.
“Basically the State of Ohio has decided to spend $6 million outside the state,” he said. “They authorized a monopoly. But its Ohio’s defense attorneys who are going to get wealthy.”
While the money has been freed up to spend, the Joint Commission on Agency Rule Review still has to write rules into Ohio’s administrative code to allow CMI’s machines to be used. The commission will schedule a public hearing for December.
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