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Sunday, June 9,2013

Appeal argued in breathlyzer case

By Jim Phillips
Photo Credits: NEWS file photo.
Photo Caption: The Intoxilyzer 8000.

A prosecutor for the city of Athens argued before an appeals court Thursday that a local judge made a mistake when he ruled that the city couldn't use evidence from a controversial alcohol breath-testing machine in two drunk-driving cases.

The ruling by Athens County Municipal Judge William A. Grim "created a result that is probably not unintentional, but absurd," argued prosecutor Tracy Meek – namely, that the city can't introduce results from the Intoxilyzer 8000 machine as evidence, and therefore can't prosecute some DUI cases.

The city last year appealed Grim's ruling in two drunk-driving cases, one involving a Cincinnati man and the other an Ohio University student. The cases have been combined for the purposes of appeal.

Both defendants were stopped by police and given breath-tests, and both showed blood alcohol levels well over the legal limit. In each case, however, Grim ruled that these testing results could not be used as evidence because after "an exhaustive search" of state laws and regulations, he had found no standards  "explicitly written for an operator access card" that would qualify anyone to operate the Intoxilyzer 8000.

The judge noted in his ruling that in a 1994 case, State v. Ripple, the Ohio Supreme Court found drug-testing results inadmissible unless the testing is done in accordance with standards promulgated by the state Department of Health.  That standard is "strict compliance," Grim wrote, and should be applied to the Intoxilyzer 8000. This essentially means that until the state codifies some operator standards explicitly for that machine, no one is legally qualified to use it.

Meek argued that Grim is applying the wrong legal standard when he demands "strict compliance." The state regulation referenced by the judge "should have been construed liberally, instead of strictly," she said. When this is done, according to Meek, it's clear that other parts of state code allow for officers to be qualified to operate the 8000.

Asked by one of the appellate judges why the Department of Health didn't promulgate regulations that clearly specify how to qualify to run the machine, Meek replied, "I can's answer for the director of health."

Judge William Harsha responded that if Ohio law and regulations don't include the required language, Grim had no choice but to reject the findings of the 8000.

"The judge is charged to follow the law," he said.

Defense attorney Jon Saia said he believes Grim's legal analysis in the case is accurate. He said the appeals court should be aware of what he called the "broader picture" behind the disputes about the Intoxilzyer 8000.

Saia suggested that the Department of Health wrote the regulations on breath-testing to try to make sure that anyone qualified to use the 8000 would not be qualified to use any other breath-testing machine, thus guaranteeing that all police agencies in the state would have to buy the newer machine.

"I think the state set out to do something," he alleged. "The design there was so that we could force out the other machines, and just have the 8000. That's what they were trying to do."

One issue that has come up in connection with the 8000 is that digital data from the machine is supposed to be transmitted to the Department of Health, where it's stored online and is available for court cases. However, Saia alleged, there have been cases in which defense attorneys have sought what appeared to them to be false results – including a case in which a defendant supposedly showed a BAC level so high as to be physically impossible – and have found that it's been deleted.

"They have lost data from the instrument," he declared. "They simply can't provide data."

Meek acknowledged that the language in Ohio administrative code could be made much clearer on the topic of how an officer qualifies to operate the 8000 machine.

"As I stand here, I absolutely admit to you, it could have been written better," she said. "I don't know why (clarifying language is) not there." However, she reiterated, standards for qualifying to use the machine can be inferred from reference to other sections of state code. To not do so, she said, means the Intoxilzyer 8000 simply can't be used, which is an unacceptable outcome.

"To exclude the entire machine… doesn't make sense," Meek insisted.


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