The City of Kent Police and Kent State University Police departments have halted the use of the Breathalyzer device called the Intoxilyzer 8000 in response to defense attorneys disputing the device’s reliability under a new Ohio Supreme Court decision.
The Ohio Supreme Court ruled on Oct. 1, 2014, that alcohol-related offenders can question the scientific reliability and proper operation of Breathalyzer devices.
As of two years before the ruling, an estimated 135 appeal cases have been brought to the 11th Appellate District Court in Portage County involving the Intoxilyzer 800, said Dan Weisenburger, a defense attorney at Weisenburger Law.
Due to the controversy other police departments in Portage County such as Brimfield, the Portage County Highway Patrol and Ravenna have also discontinued use even of the device.
Local police halt Intoxilyzer 8000 use
The Intoxilyzer 8000 is one of three Breathalyzer devices approved by the Ohio Department of Health. Both the Kent and Kent State University Police now use an older device called the BAC DataMaster. Brimfield often uses the Kent State University device.
“I’ve never had issues (with the Intoxilyzer 8000),” said Lt. Jim Prusha of the City of Kent Police Department. “Every year we test, and it’s zero every time.”
Prusha said the department officially stopped using the device this year after defense attorneys began having problems with it.
The Kent Police Department primarily relied on the DataMaster BAC for Breathalyzer tests before deciding to halt using the Intoxilyzer, Prusha said. No offender tests by Kent Police have been conducted with the Intoxilyzer since 2011, according to Ohio Department of Health data. The department, however, still tests the device weekly to keep it up to Ohio Department of Health code in case the device must be used in the future. Kent State University Police have not been using the device since last spring when the police chief sent out an email to discontinue use of the device, said Officer Ralph Stover, who oversees the Breathalyzer devices. “With the things that are in the courts right now and other issues that have arose out of [issues with the Intoxilyzer], I think that it is best to put it on hold,” Community Resource Officer Michquel Penn of the Kent State University Police said. Penn and Stover also said to their knowledge no Kent State police officers have had issues with the device.
The last offender test administered by the university police was in March, and weekly tests have stopped, according to Ohio Department of Health data.
Portage County Prosecuting Attorney Victor Vigluicci said it is practical for the police departments not to use the device.
“The departments are spending a lot of time having their officers in court testifying about the machine,” Vigluicci said. “And it is easier for them to bypass the hassle of that by using the [DataMaster] breathalyzers they already have at the station.”
The Intoxilyzer 8000’s Ohio history
The Intoxilyzer 8000 was introduced to Ohio in 2009, after the state bought 700 devices for $6.4 million with federal grant money, according to the Columbus Dispatch.
The Intoxilyzer 8000 is a Breathalyzer device created by CMI, Inc. that runs on infrared technology rather than fuel cell technology like other Breathalyzer devices.
Before the device could even be considered by the Ohio Department of Health, Alan Triggs, corporate counsel and compliance officer for CMI Inc., said the device had to be approved by the Department of Transportation.
CMI submitted the device to the National Highway Traffic Safety Administration to undergo at least three accuracy tests to then be put on the conforming products list. Products on this list are considered accurate and safe to use.
After the device was approved by the Department of Transportation, the state was able to select the device and approve it for use in Ohio law enforcement.
“There are no issues (with the device),” said Triggs. “I can tell you for sure it’s been tested, tested and retested.”
Weisenburger said issues with the device’s reliability start with its history.
According to the Plain Dealer, the Chief of the Ohio Department of Health Alcohol Testing Unit Dean Ward, who outlined the specifications for Ohio Breathalyzers, had connections to the head of CMI Inc. in Owensboro, Kentucky.
It was further reported that out of 17 companies bidding for a contract with the Ohio Department of Health, only the Intoxilyzer 8000 fit Ward’s specification, according to the Plain Dealer.
Defense attorneys like Weisenburger see this as a red flag since the device already was being questioned in states like Florida and Pennsylvania.
Ward, who now works at CMI Inc., was never investigated or charged with illegal or unethical activity, and the Ohio Department of Health continues to say the device is accurate without further testing.
The device has still not been completely adopted by Ohio Police Departments for the last 5 years and the device has been used significantly less than the other state approved device called the BAC DataMaster.
The Kent State University Police and Kent Police Departments started using the device in 2011.
The Intoxilyzer 8000 accuracy debate
The device could not legally be challenged until the Ohio Supreme Court ruling in October 2014. Ohio law originally prohibited challenges to the “scientific reliability” of Ohio’s approved breathalyzers after the State v. Vega ruling in 1984.
1.) The individual must wait 20 minutes and cannot eat, drink, burp, vomit or do anything else that might alter the reading. During the 20 minutes, the machine will perform a self-check and the officer will enter the individual and his or her information. If the device does not pass the check, the device will not turn on.
2.) The machine will draw an “air blank” where room air flushed through the machine to clear the sample chamber.
3.)The machine runs more internal checks.
4.) The machine does a second air blank to flush the sample chamber.
5.) The machine does a calibration check on the water and alcohol solution in the machine.
6.) The machine does a third air blank before it is ready for the first breath test.
7.) The individual is given three minutes to give the first breath sample at at least 1.1 L at 4 seconds.
8.) The machine will perform two more air blanks.
9.) The individual gives a second breath sample no later than two minutes after the first test.
10.) Once two valid samples are received, the machine takes the lower of the two samples.
Information from Alan Triggs of CMI Inc. and the Ohio Department of Health Intoxilyzer 8000 Operator’s Manual
The new ruling occurred after the Ohio Supreme Court heard a 2011 case Cincinnati v. Ilg where Cincinnati man Daniel Ilg requested and was denied his breath data sent to the Ohio Department of Health from an Intoxilyzer 8000 machine. Ilg’s OVI charge was not dropped and his attorneys continue arguing that his Intoxilyzer 8000 BAC results were inaccurate.
Weisenburger said the Intoxilyzer’s technology has proven flaws and other defense attorney’s claim it is based on faulty science.
He said flaws include test results so high it is not humanly possible to have that much alcohol in your system.
Other Ohio defense attorneys such as Attorney Charles Rowland of Cincinnati said on his website, DaytonDUI.com, that the device creates a higher BAC from blowing too long into the device.
Both of these claims have not been officially proven false by the Ohio Department of Health since the device has already been tested and approved for use in Ohio.
“I don’t think the Ohio department of health has properly supported the machine,” Vigluicci said.
On Aug. 13, 2013, the Ohio Supreme Court appointed retired Franklin County Municipal Judge Teresa L. Liston to hear eight consolidated cases challenging Intoxilyzer 8000 test results, according to the Columbus Dispatch. Liston concluded that the Intoxilyzer 8000 was not scientifically reliable and prohibited its use in Franklin County.
However, no specific scientific evidence proving the device to be unreliable was released.
Portage County hearings of the Intoxilyzer 8000 did not have the same result.
“We’ve processed 56 appeals in Portage County from defense attorneys attacking the Intoxilyzer 8000,” Vigluicci said. “So for all of these 56 appeals we have not lost one…and as a result we have obtained convictions for OVI based upon Intoxilyzer 8000 results.”
The case State v. Titmas, at the 11th Appellate District, did not appeal Titmas’s case and left determined the scientific reliability of the device must come from the state.
Like other cases, the Ohio Department of Health has not been quick to stand up for the device and Vigluicci said he thinks the Ohio Department of Health has contributed to the problems with the device in court.
“I don’t think the training was sufficient on [for the Intoxilyzer 8000] nor was the department itself prepared to support the machine when these challenges came,” Vigluicci said. “The administrations rules and regulations were not in place to support it. They didn’t have the manpower at the Ohio Department of Health to appear and testify when challenges were made to it.”