Previous posts in this blog discussed developments with the Intoxilyzer 8000 breath-testing machine. On May 30, 2011, the post summarized the Gerome case in Athens. In Gerome, the judge held the defendant is permitted to introduce evidence of factors affecting the breath test results. Another post reported the disappearing Intoxilyzer 8000 records maintained by the Ohio Department of Health. On June 11, 2011, this blog reported the judge’s decision in the Reid case in Circleville. In Reid, the prosecution did not present expert witnesses, and the judge concluded the machine’s results are not reliable enough to be considered as evidence. After the Reid decision, prosecutors have taken a couple different approaches with Intoxilyzer 8000 cases.
In the Bedford Municipal Court, the prosecutor used a novel approach. At the prosecutor’s request, the two judges held a hearing with an “expert” witness for the prosecution but with no defense attorney even involved. When one side is not present, that’s an ex parte hearing, which is generally prohibited in criminal law. With the “expert” witness from the Ohio Department of Health not being cross-examined by a d.u.i. defense attorney, guess what happened? The judges concluded that the Intoxilyzer 8000 is accurate and reliable! In addition to having the appearance of impropriety, the decision is not binding because it was held ex parte.
In the case of State v. Lancaster in the Marietta Municipal Court, the prosecutor is doing things in the way contemplated by the adversarial system. In response to the defense challenging the reliability of the 8000, the prosecutor provided reports of three expert witnesses, and the judge is holding hearings in which the defense can cross-examine the prosecution’s expert witnesses.
Like the Gerome case, the local defense bar obtained the assistance of two attorneys from the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers (Timothy Huey and me). On November 15, 2012, the first day of hearings was held, and I had the privilege of cross-examining the manager of engineering for CMI, the manufacturer of the 8000.
Two additional days of testimony have been scheduled for the State v. Lancaster case. In addition to the prosecution witnesses, the defense is going to call its own expert witnesses to discuss the 8000’s reliability. When a decision is issued, which will be a few months, I’ll report it here.