The State of Ohio may be regretting its $6.4 million purchase of Intoxilyzer 8000 breath-testing machines. In State v. Gerome, the judge wrote a decision critical of the Intoxilyzer 8000 that stated the machine is “capable of producing an inaccurate result.” In State v. Reid, the judge decided the Intoxilyzer 8000 result was not even reliable enough to be admitted as evidence.
Implementing and maintaining the Intoxilyzer 8000s is the responsibility of the Ohio Department of Health’s (ODH) Bureau of Alcohol and Drug Testing. Before the Intoxilyzer 8000s were purchased, individual police departments maintained breath testing machines and the records for the machines. Now, ODH maintains the records for all Intoxilyzer 8000s in Ohio. Like many states, Ohio maintains those records online where, as public records, they can be viewed by anyone at any time.
The records are changing and disappearing. Until recently, the records for breath tests indicated how many “sample attempts” there were in a test. After there were tests with unusually high numbers of sample attempts (indicating a possible problem with the machines), all records of breath tests were changed to delete the number of sample attempts. Also deleted from all records was the breath volume and duration of the breath sample. The records for breath tests also used to indicate the results of “subject test 1” and “subject test 2”. After a judge found the test results did not comply with Ohio regulations (written by the Department of Health), the Department of Health changed all of the online records to say “subject sample 1” and “subject sample 2”. After Intoxilyzer 8000 machines gave outrageous results, (like 10.00 and 23.00), the records of those tests were entirely deleted.
Is ODH permitted to alter and delete records? According to Ohio law, and written on the “Breath Instrument Data Center” of the ODH website, records of breath tests “shall be retained for not less than three years”. Interestingly, this requirement is contained in a regulation authored by ODH. Implicit in that regulation seems to be a requirement that the records be retained without being altered. The deletion and altering of records may be more than a violation of a regulation. Ohio Revised Code section 2921.12 (Tampering With Evidence) says no person shall “alter, destroy, conceal or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such a proceeding or investigation”. Violation of this statute is a felony.
Whether a felony has been committed or not, altering and deleting records that are used as evidence in court has the appearance of impropriety. The ODH may have crossed the line in its efforts to protect the State’s multi-million-dollar purchase of machines that courts are calling unreliable.