Interviewer: Okay. So, now we’ll talk about the breath testing machines. Specifically, the machine you’re going to encounter not at the roadside, but once you’re at the police station. You’re saying a new machine has come that’s being used in the Cleveland/Akron area called the Intoxilyzer-8000, is that right?
Dale: That is correct; actually it is used throughout the state of Ohio.
The State of Ohio Has Approved the Use of a New Breathalyzer Machine, the Intoxilzer-8000
Interviewer: Can you tell me about this machine and how it operates?
Dale: First of all, we’ve had the same breath testing devices in Ohio for many years. There had been two basic machines that they used, the BAC Data Master and the Intoxilyzer-5000. Twenty years had elapsed before Ohio’s Department of Health, adopted a new machine, and they adopted this Intoxilyzer-8000. They gave it their official stamp of approval.
Other States Have Deemed the Results Generated By The Intoxilyzer-8000 to be Unreliable
At the time they gave their approval, this particular Breathalyzer had already been banned from use in Arizona, in Florida, and the Tennessee Bureau of Investigation would not allow that machine to be used, saying that it was unreliable.
In spite of that, Ohio adopted this particular Breathalyzer and it’s results came under attack right away, because it was under attack in Florida and Arizona. So, the inroads had been made by many of the courts in Ohio; specifically the municipal courts have found that the results of the tests are inadmissible.
Why This Machine Is Unreliable
Interviewer: Why is that? Why does this machine generate results that are so unreliable?
Dale: I think the biggest vulnerability is that the operator can manipulate the workings of the machine. It’s a two-test machine. You have to give two breath samples. First of all, the machine doesn’t turn off automatically, but it has an LED graph on it, and what happens is when it reaches 100% the operator is supposed to tell you to stop, but the machine doesn’t shut down automatically.
The Results Can Be Subject to Operator Manipulation
The significance is that the two tests have to be within a level of 0.02 of each other in order for the test to be valid. When taking the second test, they can see the readout of where your BAC is, and they could stop you as soon as you get within 0.02. Second, by having you continue breathing after you reach 100%, can increase your BAC by as much as 25%. In my opinion, operator manipulation is the biggest vulnerability of this machine.
Interviewer: Are the breath tests videotaped when they’re being done?
The Machines Are Maintained Remotely
Dale: The police stations do have video recording. Some of the departments have videos where you do take the breath test, and you can see a little bit what’s going on. But another interesting thing about these machines is local departments doesn’t calibrate them, they are sent to Columbus to the Department of Health through a landline, and the Department of Health maintains the machines.
So, when you challenge the machine, you’re not going to bring in the local person from the local department that’s going to talk about the calibration of the machine. They have to bring someone from the Department of Health in Columbus. These machines don’t have to be calibrated except maybe once a year, and the Department of Health employee that calibrated it – is retired, and therefore, not available to testify.
So, when you attack the machine they send an attorney down from Columbus, who is not an expert. The attorney is no more of an expert than any other attorney on this machine. And so, the State has been unable in many cases to meet its burden of proof to prove that this machine is reliable.
Interviewer: Well, how often are they supposed to be calibrated according to the manufacturer?
Dale: The manufacturer specifies once a year and the calibration doesn’t take long to perform. It’s what they call a dry gas machine, but it has so many other vulnerabilities, and calibration is just like one of the issues.
Was the Police Department Trained to Use the Intoxilyzer-8000?
Interviewer: Okay, how about the operator themselves? Do they have to be certified on the machine and trained on it?
Dale: Well, that’s interesting that you asked that, because by legislation, the statute requires that any time a permit is given by the Department of Health for someone to operate a breath-testing machine they have to set forth the minimum qualifications the operator must possess. In this case, the Department of Health was very sloppy, and they never set forth minimum qualifications to the people that are supposed to be given operator’s permits to operate this thing.
The permit is not known as an operator’s permit; they call it an access card. Since they haven’t done what they were required to do, some courts have held that the results are inadmissible because the Department of Health simply has not set forth the minimum qualifications of operators.
Interviewer: What are some of the other ways besides the training and calibration that you would employ to attack the machine?
Dale: Well, that for one thing that the Department of Health has failed to set forth the minimum qualifications of the people that operate this machine. That’s a huge argument, and it’s been successful in many courts.
Interviewer: So any officer that reads the manual can operate the Breathalyzer since there are no qualifications they have to meet?
Dale: It’s a technical requirement, but the legislature’s requiring the Department of Health to set forth in their regulations the minimum qualifications for people that use breath testing devices. They have not done this for the Intoxilyzer-8000. By failing to do that alone, it means that the results are inadmissible.