Breath tests

The Marietta Police Department and the Marietta Post of the Ohio State Highway Patrol have stopped use of the Intoxilyzer 8000, a new breathalyzer machine issued to them free of charge by the Ohio Department of Health in 2010, but whose reliability has been challenged in cases throughout the state.

“I think we maybe used it once,” said Capt. Jeff Waite of the Marietta Police Department.

Troopers from the Marietta Post of the highway patrol used the machine between December 2010 and April 2011 before being advised by City of Marietta Law Director Paul Bertram to discontinue use, said Lt. Anne Ralston, public affairs commander for the OSHP.

“Each post area is guided by their local prosecutor’s office regarding which machine to use for breath testing in order to see the case through to a successful conclusion,” she said.

Currently 11 OVI cases involving the I-8000 are awaiting a conclusion in Marietta Municipal Court, one from the Belpre Police Department, one from the MPD and the rest from the highway patrol, said Assistant City of Marietta Law Director Daniel Everson.

“Typically, once the Department of Health determined that a particular breath testing instrument is reliable, the courts don’t look into it anymore,” said Everson.

Though the machine was approved for use by the state health department in 2008, the Ohio Supreme Court has authorized local municipal courts to decide on the I-8000’s admissibility for themselves, prompting both local agencies to revert back to the decades-old BAD Datamaster breath testing machine in the meantime.

Several judges have already made rulings regarding the machine and its readings. Athens, Ashland, Clermont, Monroe and Noble county courts have all handed down rulings that generally uphold the reliability of the I-8000.

Marietta Municipal Court Judge Janet Dyar Welch ruled to consolidate the 11 local pending I-8000 OVI cases and will rule on them and the machine’s admissibility in Marietta Municipal Court on Feb. 19, said Everson, who is prosecuting the consolidated cases and arguing in favor of the machine’s admissibility.

Among other things, opponents of the machine have argued that the I-8000, unlike the Datamaster, uses two breath samples to judge a defendant’s alcohol level.

However, the state has already ruled that if a defendant’s two breath samples are not within .02 percent of each other, then the results are discarded, said Everson.

Defense attorneys have also argued that the I-8000 does not automatically shut off after it receives the required 1.1 liters of air to perform a test, thus allowing the machine to read a defendant’s deep lung air, which is typically more saturated with alcohol.

The ODH stands behind the reliability of the machines, which cost around $8,000 each, said ODH spokesman Robert Jennings.

“All of our testing shows that it is reliable. There is no new science here. It is proven science,” he said.

The ODH has deployed 394 of the 700 machines it purchased with a grant from the Ohio Department of Public Safety, he said.

Agencies have to have access to the Law Enforcement Automated Data System (LEADS) before they can receive a machine, which is why many agencies including the Washington County Sheriff’s Office are still waiting to receive one, said Jennings.

Jennings added that at last count, 21 states had approved the machines.

That is not to say the I-8000s have not faced their fair share of resistance elsewhere. The machine’s admissibility has been challenged in Florida, Tennessee, Kentucky, Arizona and Minnesota, as well.

If Welch determines they are admissible, it is possible that the machines will be put back into use locally, said Everson.