Intoxilyzer 8000 Case May Open Door To Challenging Breath Tests In Ohio

In previous posts, this blog has discussed two separate but related issues. The post on May 3, 2010 explained that defendants in Ohio O.V.I. cases do not have the ability to challenge the general reliability of breath testing machines at trial due to the holding in State v. Vega. The post on May 29, 2010 described how the Ohio Department of Health purchased 700 Intoxilyzer 8000 breath testing machines and is implementing use of the machines throughout Ohio. This post ties together those two issues because a case in Athens County involving the Intoxilyzer 8000 may open the door to challenges regarding the general reliability of breath tests.

The case in Athens County is State v. Gerome. In that case, the defendant was arrested for O.V.I. and tested over the legal limit on an Intoxilyzer 8000. The trial judge indicated that this case would be a test case to assess the reliability of the Intoxilyzer 8000. The local attorney representing the defendant obtained the assistance of two attorneys from the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers (Jon Saia and Timothy Huey).

The defense attorneys filed a motion challenging evidence concerning the Intoxilyzer 8000, and the prosecutor filed a motion seeking to exclude evidence at trial regarding the reliability of the breath test. The issues are framed as: (1) whether the holding in Vega still applies due to changes in the O.V.I. statute and case law; (2) whether evidence from the Intoxilyzer 8000 is reliable enough to be introduced as evidence at trial; and (3) if evidence from the Intoxilyzer 8000 is admissible at trial, must the defendant be given an opportunity to challenge the breath test’s general reliability.

The Gerome case has captured the attention of the media. The case was the subject of multiple television news report and a Columbus Dispatch article. The first hearing was held on May 28, and the next hearing will be held in June. It is anticipated that the trial judge will issue a decision by the end of June.

As part of the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers, I have had the pleasure of working on this case in preparation for these hearings. It is our hope that the Gerome case will mark the beginning of a new era in defending clients against O.V.I. charges in Ohio.