Legal challenges mount against controversial breath-alcohol tester

Doubts about the reliability of a breath-alcohol tester  have undermined drunken driving prosecutions in Ohio and other states, four years after Ohio bought hundreds of the machines on the recommendation of a state official who later went to work for the manufacturer.
Several Ohio courts in the past two years have ruled that breath-test readings from the machine, called the Intoxilyzer 8000, were not admissible because of questions about accuracy or other vulnerabilities.
One such ruling in Painesville Municipal Court last summer prompted law enforcement agencies in the court's jurisdiction to stop using the device to test blood alcohol content of suspected drunken drivers. Cincinnati police last year stopped using the machine because of the high number of court challenges.
"These machines are judge and jury," Painesville Municipal Judge Michael Cicconetti said in an interview. "If you're going to do that to any defendant, that person has a basic right, a constitutional right, to have a machine that's reliable."
The Intoxilyzer 8000 is a new generation machine that uses infrared technology to measure the amount of alcohol in a breath sample. It won approval in Ohio under a cloud of controversy. The State Controlling Board in 2008 agreed to spend $6.4 million for 700 of the machines, despite the breath tester being under scrutiny in several other states because of questions about its accuracy and reliability.
The Plain Dealer reported at the time that Dean Ward, the Ohio Department of Health official who drew up specifications and recommended the purchase, was friends with the head of CMI Inc., an Owensboro, Ky., company that makes the device. Ward's specifications fit only the Intoxilyzer 8000 among 17 companies invited to bid for the contract, the newspaper reported.
Ward, the chief of alcohol and drug testing at the Health Department, said at the time that his friendships at the company had nothing to do with his recommendation.
Ward has since gone to work for CMI as a technical sales manager.
Reached by the newspaper, he declined to discuss the mounting number of court challenges.
"I can't comment on things that happened after I left," Ward said. He referred questions to CMI lawyer Alan Triggs.
Triggs said in an interview the Intoxilyzer 8000 is scientifically sound.
"It's very reliable," he said. "No one has ever proven that it's given a false reading. It's all speculation."
But judges in Ohio municipal courts, which hear drunken-driving cases, have cited several issues with the Intoxilyzer 8000. An Athens County Municipal judge said in a 2011 ruling that the device could be vulnerable to interference from smart phones. Though the judge ruled test results were admissible, he raised a number of doubts about the tester's precision. He noted expert testimony in two Florida courts that a high volume of breath blown into the device can give a false reading.
A Circleville court ruling that same year said the machine's accuracy has not been proven. The judge said an Ohio Department of Health witness failed to explain why the agency believes the machine is reliable. He ruled test results inadmissible until the Health Department can show scientific principles that support its reliability.
CMI lawyer Triggs and the state Health Department said smart phone interference is not an issue. The machine will detect cell phone interference and abort the breath test if necessary, Health Department spokesman Robert Jennings said. Triggs also dismissed claims that the test score can be inflated by the duration of the breath a person blows into the device.
Jennings said the department does not have to prove scientific reliability in court. He cited a 1984 Ohio Supreme Court ruling that said once the state sanctions an alcohol-detection machine, its general reliability is presumed. "However, upon request, ODH has provided scientific proof of the instrument's general reliability," Jennings wrote in an e-mail.
Some courts have validated the presumed reliability of the test, and said test results should not be suppressed. The 11th District Ohio Court of Appeals in Portage County last year rejected a number of challenges, and sent the cases back to the municipal court. In the case of a Rocky River woman charged with drunken driving and aggravated vehicular assault, Cuyahoga County Common Pleas Judge Brendan Sheehan in June rejected arguments that the equipment is unreliable and the test was not performed according to regulations.
Yet judges disagree on whether the 1984 Supreme Court ruling prohibits challenges of the instrument. In light of the controversy surrounding the Intoxilyzer 8000, some believe the matter is likely to wind up again before the Ohio Supreme Court.
The Health Department said its has distributed 396 machines to Ohio police agencies. Forty-three departments in Cuyahoga County have them, while some agencies use an older machine called the BAC Datamaster. The Ohio Highway Patrol uses both machines, depending on the jurisdiction, a spokeswoman said.
The Westlake Police Department is training on an Intoxilyzer 8000 it received from the state, and plans to start using it later this year, said Capt. Guy Turner. Turner questioned challenges from defense lawyers.
"Some of the things you're hearing might be sort of a smokescreen, or a red herring," he said.
Asked about court rulings that question the credibility of test results, he said Westlake and other departments are depending on Judge Sheehan's ruling in June.
"A number of agencies found that to be very comforting, that a judge found it reliable," he said.

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