Athens judge rules that drunk-driving test machine can be challenged in court

In a finely parsed legal ruling on the admissibility of breath-testing evidence in drunk-driving cases, Athens County Municipal Judge William A. Grim has opened the door for defense attorneys to challenge the reliability of a breathalyzer machine that's widely used by police across Ohio.

In his ruling issued Wednesday, Grim said he's concerned by evidence suggesting radio interference from cell phones can skew the results given by the Intoxilyzer 8000, and that police officers using the machine can drive up the numbers they get for blood-alcohol levels by the way they administer and record a test.

"The court has some doubts about the precision of the Intoxilyzer 8000," the judge wrote in his ruling.

Reasons for these doubts, Grim wrote, include the fact that the model was apparently never tested specifically to see if its performance can be altered by radio interference "at frequencies used by smartphones and similar devices," an oversight the judge said he found "surprising."

Another source of concern, Grim wrote, is evidence suggesting that an officer can drive up blood-alcohol level results simply by having a drunk-driving suspect blow into the machine for a longer time.

"'The longer you blow, the higher your score,' was the testimony," Grim recalled.

The judge also said in the ruling that he is "very troubled" by evidence that some data from breath-testing done by officers in the field, then uploaded to an Ohio Department of Health website, has apparently disappeared from the site.

The judge's decision, in a local drunk-driving case, could have statewide implications for the Intoxilyzer, an alcohol breath-testing machine that's used in most of Ohio's 88 counties.

Though the judge found that results from the machine met legal standards to be admitted as evidence in drunk-driving cases, he also concluded that on a case-by-case basis, defense attorneys should be allowed to call experts to dispute whether those results are accurate.

Grim made clear that testimony during a hearing that concluded June 24 raised serious concerns in his mind about the "vulnerabilities" of the machine to radio interference and possible officer manipulation.

If there appears to be reason in any particular case to suspect that either of these factors affected the test, Grim found, defense attorneys should be allowed to address that concern with expert testimony.

Attorneys for four local defendants had argued that they should be able to put on expert witnesses to challenge the reliability of the Intoxilyzer 8000.

Based on a 1984 Ohio Supreme Court decision, many Ohio courts have taken the position that evidence from a breath-testing machine can be automatically admitted without defense challenge, as long as the Ohio Department of Health has certified the machine for use by police.

While Grim did not find Ohio v. Vega to be unconstitutional, he did conclude that it must be interpreted to allow "all relevant defense evidence" about a given breath test. While results from a state-certified breathalyzer meet the standards for admissibility as evidence, he wrote, they should be treated as circumstantial, and open to challenge by the defense.

Tim Huey, who was co-counsel in the Athens case and is president-elect of the Ohio Association of Criminal Defense Lawyers, called the Grim decision a "huge win" for the defense.

"I think he's indicating that the defense is not barred from bringing in any relevant evidence just because the Ohio Department of Health has approved a machine," Huey said.

Department of Health spokesman Robert Jennings, however, said the agency also finds reason to like the decision, because it finds that results from the Intoxilyzer do meet threshold standards for admissibility as court evidence.

As for the alleged technical "vulnerabilities" of the instrument, Jennings said, the agency believes these can apply to any breath-testing machine, not just the Intoxilyzer.

"We're always open to improve our processes, and we'll make improvements where we can," he added.