Posted on 08/22/2013 6:08:47 AM PDT by Deadeye Division
A court decision discrediting the reliability of machines used by hundreds of Ohio law-enforcement agencies to test drunken drivers could be the “death blow” for the controversial devices, defense attorneys say.
But a spokeswoman for the Ohio Department of Health, the state agency that oversees the Intoxilyzer 8000, said officials remain confident of its “performance and reliability.”
The ruling was rendered Aug. 13 by Judge Teresa L. Liston, a retired Franklin County Municipal judge appointed by the Ohio Supreme Court to hear eight consolidated cases in Marietta Municipal Court where motorists were challenging test results obtained using the Intoxilyzer 8000.
Liston concluded after a five-day hearing that included testimony by expert witnesses on both sides that the machine has a “presumption of reliability” because it is officially approved by the Department of Health. However, results from the Intoxilyzer 8000 are “not scientifically reliable and the court, as a gatekeeper against unscientific evidence, must prohibit them from being introduced as evidence in this case.”
“Through evidence, we convinced the court that these machines are unreliable,” said Tim Huey, a Columbus lawyer involved in the case and the past president of the Ohio Association of Criminal Defense Lawyers who has been fighting the breath-testing machines for years. “Is it going to usher it out the door tomorrow? No.”
But Huey said Liston’s decision could be the “death blow” for the machine that has faced repeated legal challenges since first introduced in Ohio in 2009.
The Health Department, which certifies the Intoxilyzer 8000, bought 700 of the portable testers using a $5 million federal grant. About 400 are in use around Ohio now, although not in Franklin County, Huey said.
Huey and other defense attorneys have filed more than 50 cases challenging the machines on behalf of clients charged with driving under the influence. Attorneys argue that heat, humidity and other factors often skew the results.
Prosecutors have relied in the past on a 1984 Ohio Supreme Court decision that said because the machines were officially certified by the state, they could not be challenged by expert witnesses. However, several judges, including Judge Gary Dumm of Circleville Municipal Court in a 2011 decision, challenged that, saying Intoxilyzer 8000 results will not be admitted in their courts.
Tessie Pollock of the Department of Health said agency officials know about the Marietta ruling. “But please be aware that 98 percent of the appellate rulings are in favor of the state and deem the I-8000 a reliable instrument. There are approximately 400 instruments currently deployed throughout the state. The Intoxilyzer 8000 was chosen for use in Ohio because of its proven performance, reliability and repeatability in extensive testing at the state and federal levels."
While court challenges are expected, Pollock said, “we are confident that the use of breath alcohol-testing instruments helps to reduce impaired driving and saves lives.”
ajohnson@dispatch.com
@ohioaj
every lawyer knows it’s junk science
That’s ok...it’s a financial windfall for the States and even insurance companies.
Also check squad cars for alcohol containers used to get false readings...: )
I figured that people not deterred by the prospect of sudden death were unlikely to be deterred by the prospect of a ticket with sentence several months away.
It was just another revenue scam.
The state has snappy uniforms.
/johnny
> I fail to see the distinction between the state and the mafia.
There is a difference. The mafia won’t spy on you online, force you to pay for benefits of illegals, try to remove the constitution, rewrite your history, force you to be tolerant of otherr religions while trying to remove your rights to worship, tax your homes, or lie to or manipulate you using subterfuge. That’s just for starters.
How does a machine report blood alcohol content (BAC) without blood?
The state says they are legal and that the mafia competition is not. That is the difference.
When I lived in Corpus Christi, TX., the prosecuting attorneys and police used a code number system to designate which breathalyzer test had been falsified.
They used a number code so the prosecuting attorneys would know from the very beginning and not be caught by surprise that the accused person was innocent.
Since they were claiming the test were so accurate, test that showed someone wasn’t intoxicated were being used in court as evidence against the police in civil suits.
To stop the test from being used as evidence against police, the decision was made to falsify test so the test would never go below .1%.
The person giving the test would hook up a bottle of alcohol and water to the machine before giving the person the test. The person who the test was being given to would never go below what the reading was for the bottle of alcohol and water.
If you agreed to take the test you would get a reading of .1%. If you refused to take the test the reading was .2% or .25%.
When police got out of line with someone they would simply haul that someone to jail, claim they were DWI, falsify a breath test, and the police walked free.
If you look in the police contract you will find this procedure right in the contract. Internal affairs doesn’t have to accept a complaint against a police officer if the person filing the complaint is “Obviously” intoxicated. With a reading of .1% you were considered to be “obviously” intoxicated so no complaint.
Breathalyzers can do a splendid job of more or less accurately reading the alcohol on your breath. That reading is implied to be tied to the actual BAC, and in principle, it is. However, the only way this works is to take a reading after a person has not taken a sip for awhile. If I open a beer and swish it around in my mouth and spit it out, my BAC is still zero but my breathalyzer reading would be high. So it is a screening method at best.
A lady I know got a speeding ticket and showed it to me. The ticket listed the device that clocked her as a “Veeblefitzer 2000” or somesuch. Looked it up and it was a digital stopwatch available at The Sports Authority for $59.95. I urged her to challenge the ticket but she was too timid.
thing of it is, it is expensive to try the case and have a lawyer prove it is crap, so people cave if they had a drink at all.
If I am out and driving, I do not drink even one drop
cops love to stick to lawyers because we make them look bad in court
It didn’t make a difference if you had been drinking or not.
You could refuse to take the test and you would still get a test with your name on it showing you had BAL of anywhere from .1% to .25% depending on which bottle of alcohol and water they used for the test.
The Health Department, which certifies the Intoxilyzer 8000, bought 700 of the portable testers using a $5 million federal grant.
Heaven be thanked there's an endless supply of free gummint money.
yes I see that, and sometimes I do drive poorly according to my kids, and sometimes I do swerve to avoid hitting something, but I have not had a moving wreck, I have backed into things, but not a forward or side wreck. So, anyway, whatever
Bump
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