The Intoxilyzer 8000 In Ohio DUI / OVI Cases

In 2009, Ohio spent about $6.5 million to purchase hundreds of Intoxilyzer 8000 breath-testing machines. The purchase of the machines was controversial, as the state chose to purchase those machines rather than the BAC Datamaster, which was manufactured in Ohio. Adding to the controversy was the fact that the head of the Bureau of Alcohol and Drug Testing was close friends with the manufacturer of the Intoxilyzer 8000: CMI. In fact, that state employee later retired and went to work for CMI.

The Intoxilyzer 8000 Has Faired Poorly When Challenged
As the new machines were rolled out in counties across Ohio, defense lawyers challenged them. In the 2011 case of State v. Gerome, a court ultimately decided the results of the tests on the Intoxilyzer 8000 could be used as evidence, but the breath test evidence could be challenged in various ways to show the test results are unreliable.

The following year, the State decided to take a stand in the case of State v. Lancaster. The State sent several expert witnesses to testify about the reliability of the machines, including the head engineer from CMI. The hearing involved testimony from eight expert witnesses and lasted several days. Shawn Dominy of the Dominy Law Firm was defense counsel in this case. At the conclusion of the hearing, the judge ruled the defense proved the results of tests on the Intoxilyzer 8000 are not reliable and are therefore inadmissible. The judge’s decision stated:

Applying Evid. R. 702, and holding Defendants to the burden of overcoming the presumption of reliability granted to the I8000 by virtue of its adoption by the Director of Health, the court finds that the expert testimony presented in this hearing clearly demonstrated that the I8000, as it existed at the time the tests were administered to Defendants, did not implement the firmly established scientific principles necessary to yield scientifically reliable results and was not the “proper equipment” contemplated by Vega.

In 2014, the Intoxilyzer 8000 suffered another defeat in the case of State v. Ilg. In that case, the defendant requested discovery of records related to the Intoxilyzer 8000, COBRA (Computerized Online Breath Archives) data, software changes and modifications, and communications regarding the Intoxilyzer 8000 between the government and the manufacturer of the machine. The Court ordered the state to disclose the requested records, but the state refused to do it.

The Ohio Supreme Court concluded Ilg was entitled to the items he sought from the State, including the Intoxilyzer 8000 COBRA database. The Court stated, “[T]he record supports the trial court’s finding that Ilg could not challenge the reliability of his breath test without the COBRA data generated by the Intoxilyzer 8000.” The Court went on to state, “Here, neither the statute nor our caselaw precludes Ilg from showing that the Intoxilyzer 8000 that tested his breath provided an inaccurate result, and he is entitled to discovery of relevant evidence to support his claim that the Intoxilyzer 8000 machine used to test him failed to operate properly.”

Secret Software Switches
The Intoxilyzer 8000 has undergone firmware and software changes, and the state has not disclosed them to defense attorneys. The Dominy Law Firm obtained a partial list of those changes (changes made in 2010 and 2011). One of the updates changed the ambient air threshold from .005 to .020, which is a significant modification. Another change was adding a breath profiling feature, which would provide important information about each breath test, but the state continues to deny this feature exists. Given these modifications, it is logical to conclude the software changes have continued. However, the state repeatedly refuses to disclose Intoxilyzer 8000 records when requested by defense attorneys, despite the Ohio Supreme Court’s ruling in State v. Ilg.

The Intoxilyzer 8000 Is Now Being Used In Central Ohio
After 2014, the Intoxilyzer 8000 was not used much in central Ohio. In 2018, however, the Ohio State Highway Patrol (OSHP) decided to make the Intoxilyzer 8000 the primary breath-testing instrument throughout the state; except for Franklin County. Courts in central Ohio (except for Franklin County) are now hearing OVI cases involving Intoxilyzer 8000 machines. The state’s refusal to release Intoxilyzer 8000 records is now being litigated in multiple central Ohio courts.

The attorneys Dominy Law Firm have expertise in the area of breath testing and experience challenging the Intoxilyzer 8000. If you are charged with OVI based on an Intoxilyzer 8000 breath test and would like to discuss how the Dominy Law Firm can help, you can arrange for a free phone consultation by submitting a CONTACT FORM or by calling 614-717-1177.

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