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Intoxilyzer 8000 Tag

Dayton DUI Attorney Charles Rowland > Posts tagged "Intoxilyzer 8000" (Page 2)

Appellate Decision: Rules (as written) Don’t Apply

A recent 10th District Court of Appeals decision in State v. Castle, 2012-Ohio-6028, decided on an interpretation of the Ohio Administrative Code that will allow the government to use both a BAC DataMaster or any other approved device to prosecute drunk driving cases in Ohio.  The court determined only the limited issue of whether the issuance of an operator access card under Ohio Adm.Code 3701-53- 09(D) prohibits the operator from performing breath tests using an instrument for which the operator also has been issued either an operator or senior operator permit under Ohio Adm.Code 3701-53-09(B)."The BAC DataMaster and Intoxilyzer 8000 are...

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Problems with the Intoxilyzer 8000

If you have been charged with OVI (drunk driving) based on a test on the Inoxilyzer 8000, let Charles M. Rowland II defend your case.  He was the first private attorney in Ohio to be certified as an operator of the Intoxilyzer 8000, he is Ohio's only Forensic Sobriety Assessment certified attorney, and  he limits his practice to the defense of the drunk driver.  Given the problems with the implementation of the Intoxilyzer 8000, you need an attorney who is up-to-date and on the cutting edge of DUI/OVI defense. What Are The Problems?The Intoxilyzer 8000, manufactured by CMI (out of Kentucky)...

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Athens Judge Throws Out Intoxilyzer 8000 Rules

State v. Moore (12 TRC 1842) and State v. Montague (12 TRC 3773) Athens Municipal Court In another in a series of troubles for the implementation of Ohio's newest breath test machine, Judge Grimm in Athens County has halted use of the Intoxilyzer 8000.  Courts throughout Ohio must decide how, given this ruling, they will deal with the implementation of the machine.  The issue before the court involved the rules adopted by the Ohio Department of Health.  Specifically, the court was asked to address whether or not the Ohio Department of Health has authority to issue operator cards for the Intoxilyzer...

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Rowland Speaks to Ohio Municipal Attorneys Association

Charles M. Rowland II (DaytonDUI) was honored to be asked to speak to the Ohio Municipal Attorney Association at their Ohio Municipal Law Institute.  The Ohio Municipal Attorney Association is made up of Law Directors, Village Solicitors, including civil law attorneys and prosecutors make up the individuals working for cities and villages active.  He gave a one hour presentation on the Intoxilyzer 8000 breath test machine and the machine's troubled implementation in Ohio.  "What made this speech interesting for me, is that I had to speak to a room full of prosecutors," said Rowland.    "I emphasized the special role...

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DUI Blood Tests: Whole Blood vs. Serum/Plasma

Ohio Administrative Code 3701-53-03(A) sets forth the techniques and methods for determining the concentration of alcohol in blood, urine and other bodily substances.  Pursuant to that rule, Ohio allows for testing including gas chromatography and enzyme assays.  To challenge a blood test, it is important to know if the State has tested the blood as whole blood or as serum/plasma.  Operation with a concentration of alcohol is prohibited if the concentration in whole blood is equal to or exceeds .08%, R.C. 4511.19(A)(1)(b).  However, the prohibited concentration for whole blood is a concentration equal to or exceeding .096%, R.C.4511.19(A)(1)(c).  The high...

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Ohio DUI Law: Another Jurisdiction Dumps the Intoxilyzer 8000

Add Cincinnati to the Jurisdictions Not Relying on the Intoxilyzer 8000 It appears that the ruling from the 12th District Court of Appeals upholding the use of the Intoxilyzer 8000, despite clear language in the Ohio Administrative Code requiring a dry gas control prior to each subject test, has not saved the Intoxilyzer 8000 in nearby Hamilton County.  In May, Municipal Court Judge Melissa Powers agreed and ruled the machine must be cleared after each breath test. Her ruling threw OVI prosecutions within Cincinnati into limbo because defense attorneys used it to attack drunk-driving allegations made using that machine.  Cincinnati City Prosecutor Charlie...

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Ohio DUI Law Update: Appellate Court Upholds Intoxilyzer 8000

In the first appellate decision involving the Intoxilyzer 8000, Ohio's 12th District Court of Appeals ruled that tests should be allowed despite the plain language of the Ohio Administrative Code.  The ruling is the first setback to defense attorneys (like me!) who have challenged the implementation of the machine in Ohio.  The case is State v. Kormos, 2012-Ohio-3128 and you can read the full decision HERE.At issue was Ohio Administrative Code section 3701-53-04 which incorporates the new rules for calibrations of the Intoxilyzer 8000. See O.A.C. 3701-53-04(B) as set forth below.  The “new” standards “automatically perform a dry gas control test before...

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DUI Case Law Update: State v. Castle (Franklin County)

State v. Castle, 168 Ohio Misc.2d 6, 2012-Ohio-1937 On July 3, 2011, Floyd Castle was arrested and charged with OVI (drunk driving) and other offenses.  When the Trooper administered a chemical test he chose to conduct that test on a BAC DataMaster breath test devise instead of Ohio's newest machine the Intoxilyzer 8000.  The Trooper was qualified as a senior operator on the BAC DataMaster.  The Trooper also held an operator-access card to administer tests on the Intoxilyzer 8000.  The issue before the court is whether or not the Ohio Administrative Code, specifically O.A.C. 3701-53-09(D), allows the Trooper to conduct a...

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Calibration of the Intoxilyzer 8000, O.A.C. 3701-53-04

The revised Ohio Administrative Code section 3701-53-04 incorporates the new rules for calibrations of the Intoxilyzer 8000. See O.A.C. 3701-53-04(B) as set forth below.  The "new" standards "automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology (NIST).  The dry gas results "are valid when the results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the alcohol concentration on the manufacturer's certificate of analysis for that dry gas standard. A dry gas control result which...

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Infrared Spectroscopy and the Falsely High Breath Test (by DaytonDUI)

The Intoxilyzer 8000 operates using the scientific principle of infrared (IR) spectroscopy, which identifies molecules based on the way they absorb infrared (IR) light.  More specifically, when molecules in a breath sample are exposed to IR light the way they vibrate changes due to the bending of the (C-O, O-H, C-H, C-C) bonds.  Each type of bond absorbs light at a known wavelength, thus the amount of IR absorption identifies a substance as ethanol and how much ethanol is in the sample.But here’s the rub…  The machine can identify any compound containing a methyl group molecular structure as ethanol thereby...

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